Tara Shanker v. Madan Mohan Pathak — 1993 DIGILAW 356 (ALL)

JUDGMENT : M.L. Bhat, J. This is an appeal against the order of the 1st Additional District Judge, Varanasi dated 23-4-1982 whereby, application of the Appellant for setting aside the ex-party order dated 21-1-1978 in Misc. Case No. 269 of 1977 was rejected. 2. From the perusal of the record it appears that one Ras Behari Paranhans had executed a will on 28-4-1937 appointing three shebaits. These were.: 1. Surendra Nath Roy 2. Ashutosh Roy 3. Panna Lal Misra. 3. It is alleged that Surendra Nath had died. Ashutosh Roy is also said to have died and it is alleged by the Respondents that he had executed a will in favour of his son Vibhuti Roy in 1945 with regard to the rights of shebait. The said Vibhuti Roy is said to have surrendered and relinquished his rights in favour of Madan Mohan. Pathak, the Respondent. Appellant claims to be son of Panna Lal Misra one of the shebaits. There was a probate case on the basis of the will of 1939 and letter of probate was issued in favour of three persons. Respondent made an application that he be substituted for Vibhuti Roy who was claiming through Ashutosh Roy on the ground that said Vibhuti Roy had relinquished his share. Notices are said to have been issued in the said application to the interested parties but the notices are reported to have been sent on wrong addresses. Respondents claims that on the basis of the statement given by Vibhuti Roy he was included in the letter of probate in place of Vibhuti Roy. In May 1978 Appellant filed an application for setting aside the order dated 21-1-1978 by which Respondent was made a shebait. 4. Father of Madan Mohan, Respondent, one Tarkeshwar Pathak, was tenant of the portion of the suit property and a suit for eviction was brought against him. Tarkeshwar Pathak's; tenancy rights in the property had fallen on the Respondent Madan Mohan. During the pendency of the suit Madan Mohan got himself appointed as shebait. 5. It was submitted by the learned Counsel for the Appellant that the order dated 21-1-1978 was obtained by fraud committed on the Court below. Said Vibhuti Roy had never executed and surrender deed and through manipulation Respondent Madan Mohan got his name entered into as shebait to Protect his tenancy rights over the property. 5. It was submitted by the learned Counsel for the Appellant that the order dated 21-1-1978 was obtained by fraud committed on the Court below. Said Vibhuti Roy had never executed and surrender deed and through manipulation Respondent Madan Mohan got his name entered into as shebait to Protect his tenancy rights over the property. After the death of Surendra lath, Ashutosh Roy and Vibhuti Roy. the sole shebait was Panna Lal Misra whose interest has devolved' on the appellant. Respondent has no right as shebait with the property in question, therefore, the order dated 21-1-1978 which was passed ex-parte was based on fraud and manipulation. As an aggrieved person Appellant has right to apply under Order 9 Rule 13 to get the ex-parte order set aside so that he could contest the claim of Madan Mohan in the proceedings-which, were pending before' the Court. Reliance is placed on Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, AIR 1982 All 23 . A learned Single Judge of this Court has held that ex-parte decree at the instance of the stranger who was vitally interested in the subject matter and who claimed that the said decree was obtained by fraud and collusion could be set aside under Order 9 Rule 13 of the Code of Civil Procedure. 6. The learned Counsel for the Respondent has submitted that Respondent Madan Mohan had inherited only the interest and right of Ashutosh Roy and the said Vibhuti Roy had surrendered and relinquished his right in favour of the Respondent No. 1. By inheriting the; rights of Vibhuti Roy he has not impinged on the rights of Appellant as a legal heir of Panna Lal Misra. He could ask the probate Court to implead him in place of Panna Lal Misra but he cannot claim any right with regard to the inheritance of Ashutosh Roy's right in the suit property. Therefore, this application for setting aside the ex-parte decree was not maintainable and he had no right to file such application. It is submitted that none of the rights of the Appellant are affected by the ex-parte order dated 21-1-1978. Reliance is also placed on the alleged compromise which was entered into between Vibhuti Roy and Respondent and on the basis of which Trial Court had passed an order in favour of the Respondents. It is submitted that none of the rights of the Appellant are affected by the ex-parte order dated 21-1-1978. Reliance is also placed on the alleged compromise which was entered into between Vibhuti Roy and Respondent and on the basis of which Trial Court had passed an order in favour of the Respondents. Since there was no contest in the application and nobody was interested in the matter, therefore, order of the Trial Court was perfectly justified and it could not be set-aside at the instance of the Appellant. He has relied on the Authority of' Delhi High Court, Santosh Chopra Vs. Teja Singh Sardul Singh, AIR 1977 Delhi 110. It is held in this Authority that only the Defendant in an action can move an application under the provisions of Order 9 Rule 13 of the CPC. A person who is not a party though he may be interested in-the suit is not entitled to apply under the said order. 7. I have heard the learned Counsel and perused the record. Out of the three shebaits, Panna Lals right as shebait is inherited by the Appellant. Respondent claim that he has acquired the right, from Vibhuti Roy in terms of the relinquishment deed executed by the said Vibhuti Roy in respect of shebait rights of Ashutosh Roy. On the basis of surrender deed Respondent has, according to the learned Counsel, right to act as a shebait. This is admitted that if he is clothed With the rights of a shebait his tenancy over the portion of the property which is under litigation is likely to be protected. If there was no surrender deed in existence and if the surrender deed as alleged is not proved to have been executed by Vibhuti Roy in his favour' then the sole shebait is the Appellant. Therefore, Appellant is vitally interested in the matter and when an application was made by the Respondents for being brought on record as shebair it was imperative for the Court below to issue notices to; the Appellant and hear his objections also. Thereafter, the Court below could decide the matter more effectively. Appellants status as a shebait in place of Panna Lal Misra is not in dispute. The Respondent No.1's right as shebait is disputed and it is alleged that he has acquired this right by playing fraud on the Court below and by manipulation of documents. Thereafter, the Court below could decide the matter more effectively. Appellants status as a shebait in place of Panna Lal Misra is not in dispute. The Respondent No.1's right as shebait is disputed and it is alleged that he has acquired this right by playing fraud on the Court below and by manipulation of documents. He was vitally interested in the matter. The Court below has held that he was not a party in the order- dated 21-1-1978. He could not ask for setting aside the said order as held by Court below does not appear to be legally sound.; He is vitally interested in the matter, his rights are likely to be effected in the suit, property, It is alleged that by fraud order dated 21-1-1978 was obtained by the, Respondent No. 1, Therefore, it was appropriate for the Court below to recall its order and allow the Appellant to contest the master on merits. If ort merits Respondent succeeds to get, himself arrayed as shebait in place of Ashutosh Roy he could become co-shebait with the Appellant in respect, of the suit property otherwise, his status is that of a tenant of the.;.property and the Appellant has a remedy of eviction from the tenancy against him. These, were the vital matters which should have been considered by the Court below. The Principle laid down in the Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, have been relied upon by me in another Appeal No. 349 of 1982 which was recently decided. In, the identical circumstances right of a person who is vitally interested in the matter to invoke provisions of Order 9 Rule 13 of the CPC - were upheld. In this case also, I feel there is no reason for me to depart from the view taken in Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others. No fresh right, is created in anybody. All that is required to be, done is that Appellant shall be given opportunity to. contest the claim of the Respondent No, 1 with regard to his status. Whether the Respondent is a shebait or the Defendant, is a matter which can be decided appropriately by the Court below. This Court cannot give any findings on the merits of the case or on the plea of fraud or manipulation, of the record set up by the Appellant. Whether the Respondent is a shebait or the Defendant, is a matter which can be decided appropriately by the Court below. This Court cannot give any findings on the merits of the case or on the plea of fraud or manipulation, of the record set up by the Appellant. All these pleas are necessarily to be enquired into by the Court below after the order dated 21-1-1978 is recalled and the party who is vitally interested in the matter is allowed opportunity of being heard. 8. I am unable to subscribe to the view which is taken in AIR 1977 Delhi 110 (Supra). There is another difficulty in the way of applying the said Authority to the facts of this case. Person applying under Order 9 Rule 13 of the CPC had no locus standi to apply for setting aside the said order. In the said Authority ex-parte order for deposit orient was passed; After the said order was passed the owner of the property sold the projperty in question to another person, Another person after purchase of the property applied for setting aside the exparte order for fixation of standard rent. In these circumstances it was ruled by learned Single Judge of the Delhi High Court that Order 9 Rule 13 of the CPC could not be invoked by vendee against any order by which standard rent was fixed ex-parte. However, in the present case question of acquiring of shebaits' rights are to be enquired into by the Court below and if it has relied upon any document which is impugned by the Appellant Court below was bound to go into that question and consider the matter in all aspects so as to advance cause of substantial justice. 9. In my opinion Court below had failed to exercise its jurisdiction arid has passed the impugned order in utter disregard of the provisions of law and by ignoring the glaring facts which needed attention of the Court below. 10. For the reasons stated above, I set aside the order dated 23-4-1982 by which Court below has rejected the application of the Appellants as not maintainable. The appeal is accordingly allowed. 10. For the reasons stated above, I set aside the order dated 23-4-1982 by which Court below has rejected the application of the Appellants as not maintainable. The appeal is accordingly allowed. The Court below shall consider the application under Order 9 Rule 13 of the CPC on merits because the said application is maintainable and thereupon proceed to decide the matter in accordance with law and in the light of the observations made hereinabove. The parties to appear before the Court below on 30-7-1993.