Rohit Kumar v. Bodhpal Singh — 1996 DIGILAW 1229 (RAJ)

Honble JAIN, J.–The plaintiff-appellants have preferred this appeal under Order 43, Rule 1, C.P.C. against the order, dt. 3.8.1996 passed by the learned Additional District Judge No.2, Udaipur in Misc. Case No. 77/95 whereby the learned Additional District Judge dismissed the application filed by the petitioners under Order 39, Rules 1 and 2, CPC. The plaintiffs filed a suit for declaration and perma- nent injunction against their father Bodhpal Singh and Prakash Chandra, respondents, with the allegations that Shri Bodhpal Singh purchased plot No.177 from City Improvement Trust and constructed house thereon in the year 1960. Bodhpal Singh obtained a loan of Rs. 7,600/- on 11.11.1959 for constructing the house. The plaintiffs alleged that Bodhpal Singh also obtained mandatory assistance from his father Balwant Singh in the purchase of the plot and the construction of the house. The plaintiffs paid the instalments on behalf of Bodhpal Singh. Bodhpal Singh let out part of the house to Harold Filamen on rent. Defendant No.1 Bodhpal Singh filed a suit for eviction against the said Herold Filaman and appointed respondent No.2 his advocate. It was alleged by the plaintiff-appellants that taking advantage of his position, defendant No.2 impressed upon Bodhpal Singh that it was easy to get the house vacated and persuaded Bodhpal Singh to make transfer of the house in his favour. Since Bodhpal Singh was not mentally healthy and strong, he fell prey to the influence of respondent No.2 and executed an agreement to sale in favour of respondent No.2 on 5.6.1986 for a sum of Rs. 1,50,000/- whereas the real value of the house was not less than Rs. 30 lacs. The plaintiffs have challenged the above transaction on the ground that the above property was a Joint Hindu Family Property and as such Bodhpal Singh was not authorised and competent to alienate the same in favour of respondent No.2. The above transaction was without consideration and the agreement to sale was executed by Bodhpal Singh without exerci- sing his free will as he was mentally ill. The plaintiffs further alleged that the respondent No.2 fild a suit for specific performance of contract against respondent No.1 on the basis of the agreement to sale. Respondent No.1 did not contest the suit and a consent decree was, therefore, passed in favour of respondent No.2 and against respondent No.1. The plaintiffs further alleged that the respondent No.2 fild a suit for specific performance of contract against respondent No.1 on the basis of the agreement to sale. Respondent No.1 did not contest the suit and a consent decree was, therefore, passed in favour of respondent No.2 and against respondent No.1. By filing the above suit, the appellants have challenged the above decree on ground of fraud and mental illness of respondent No.1 who could not exercise his free will in executing the agreement to sale. The decree is vitiated by fraud and collusion. Along with the plaint, the appellant filed an application under Order 39, Rules 1 and 2 CPC. During the pendency of the application the trial Court passed an order directing the parties to maintain status quo on 21.10.1995. The appellants have stated that in the first week of July 1996, the appellants came to know that one Addl. S.P., Shri B.S. Jhala, who is a friend of defendant No.2 is also interested in the decree dt. 15.11.1994. He is also a friend of the Additional District Judge No.2, Udaipur.He resides in the neighbourhood of Additional District Judge No.2. The appellants, therefore, apprehended that they would not get justice at the hands of the Presiding Officer of the Court. The appellants, therefore, moved in application for transfer before the Distt. Judge, Udaipur on 31.7.1996. This application was listed for admission on 1.8.1996. Prior to the admission, the learned Distt. Judge has heard the preliminary objections of defendant No.2 and fixed the transfer application on 9.8.1996 in presence of defendant No.2. The learned Additional District Judge had fixed this case for final hearing of the temporary injunction application on 2.8.1996. On 2.8.1996, the appellants prayed before the learned Additional District Judge to fix the case for hearing of the injunction application after the decision on the application for transfer moved before the learned Distt. Judge. The learned Additional District Judge adjourned the case to 3.8.1996. The appellants moved an application before the learned Distt. Judge on 2.8.1996, requesting to hear the transfer application immediately and the learned Distt. Judge passed an order for hearing the transfer application 3.8.1996. However, on that day, the learned Distt. Judge was on leave. The case was then fixed on 9.8.1996. In view of the above developments, a request was made to the learned Addl. Judge on 2.8.1996, requesting to hear the transfer application immediately and the learned Distt. Judge passed an order for hearing the transfer application 3.8.1996. However, on that day, the learned Distt. Judge was on leave. The case was then fixed on 9.8.1996. In view of the above developments, a request was made to the learned Addl. District Judge for adjourning the case on 9.8.1996 or thereafter. It was rejected by the learned Additional District Judge and the temporary application of the appellants was decided by the learned Additional District Judge ex parte against the appellants on 3.8.1996. (2). I have heard learned counsel for the appellants and the respondent No.2 in person. (3). Learned counsel for the appellants has highlighted the above developments and submitted that the learned Additional District Judge has acted illegallyin dismissing the appellants application under Order 39, Rules 1 and 2, C.P.C. during the pendency of the transfer application before the learned Distt. Judge. It was not proper on the part of the learned Additional District Judge to dispose of the application in view of the transfer application moved before the learned District Judge and it was likely to be decided very early. By doing so, the learned Additional District Judge has violated the established judicial principles that justice should not only be done but should also appear to have been done. Secondly, the learned Additional District Judge decided the above application without hearing the appellants. The learned Additional District Judge only heard respondent No.2 and the counsel for the respondent No.1. In the facts and circumstances of the case, it was very reasonable and proper for the learned Addl. Distt. Judge to have acceded to the request of the appellants to adjourn the case till the transfer application was decided. He has further contended that the learned Additional District Judge has not considered he special facts and circumstance of the case which clearly disclose that the decree. dt. 15.11.1994 was obtained by the respondent by fraud. The decreeis also without consideration. The learned Additional District Judge has also not pro- perly appreciated the requirement which guide the disposal of such application. The appellants had a very strong prima facie case. The balance of convenience too was also in their favour. (4). dt. 15.11.1994 was obtained by the respondent by fraud. The decreeis also without consideration. The learned Additional District Judge has also not pro- perly appreciated the requirement which guide the disposal of such application. The appellants had a very strong prima facie case. The balance of convenience too was also in their favour. (4). Learned counsel for the respondents has supported the order of the learned trial Court and referred to the order-sheets of the proceedings to show that after obtaining an order from the Court for maintaining the status quo on 21.10.1995, the appellants never showed any inclination to get the matter disposed of. On the contrary, the appellants always tried to prolong the matter on one pretext or the other, the order of maintaining the status quo extended with adjournments. The appellants therefore, took un-due advantag e of the discretion exercised by the Court in maintaining the status quo. He further pointed out that with the filing of the transfer application, the appellants did not choose to file any application for staying the proceedings of the case. As such the learned District Judge, while entertaining the application for transfer of this case, did not issue any order for staying the proceedings. In view of the previous background, the learned Additional District Judge did not commit any error in deciding to dispose of the matter. There was no justification at all for the learned counsel for the appellants to declining to argue the case. (5). On merits also, learned counsel has submitted that there may be presum- ption that there may be Joint Hindu Family but there can be no presumption that the joint family possesses joint family properties. In the instance case, Bodhpal Singh purchased the above plot by obtaining loan from the Govt. and constructed the house. It is wholly baseless even to say that the property constructed by Bodhpal Singh after purchasing the plot that the property became a Joint Hindu Family Pro- perty. Moreover, Bodhpal Singh has categorically supported the agreement to sale. In such a case, execution of the decree can never be stayed. It has not been even alleged by the appellants that the respondent No.2 resorted to undue influence or duress in remitting the agreement to sale in his favour by respondent No.1. Moreover, Bodhpal Singh has categorically supported the agreement to sale. In such a case, execution of the decree can never be stayed. It has not been even alleged by the appellants that the respondent No.2 resorted to undue influence or duress in remitting the agreement to sale in his favour by respondent No.1. It was also contended by the respondent No.2 that the appellate Court is normally slow to interfere with the order of the trial Court passed on an interlocutory application filed under Order 39, Rules 1 & 2, CPC unless the same suffers from misreading of evidence or perversity. The interference can be made when the order is capricious, baseless and perverse. On this ground also, the appeal of the appellants is liable to be dismissed. (6). I have very carefully considered the rival contentions canvassed before me. At the very outset, I may state that it cannot be gainsaid that the appellants filed an application under Section 24 of the Civil P.C. seeking transfer of this case to another Court. By a separate order, I am also deciding the revision petition relating to the order by which the learned District Judge dismissed the same. I may observe that the above application was moved without any ground. the petitioners tried to supplement certain grounds by making certain allegations in the petition. I need not go into detail except stating that the transfer application moved by the petitioners was correctly dismissed by the learned Additional District Judge. Secondly, the learned District Judge did not issue any order staying the proceedings of the case. The appellants did not move a simultaneous application for staying the proceedings of the case and when it was moved, it could not be reached logical conclusion. (7). I have also gone through the order-sheets of the proceedings made available by the respondent No.2 and it appears that initially the trial Judge found it expedient to pass an order for maintaining the status quo as he apprehended the disposal of the case by little delay. Once the above order was passed, the learned trial Court was left with no option but to extend the same because adjournment after adjournments were given sometimes at the request of the appellants and sometimes at the request of the respondents. Once the above order was passed, the learned trial Court was left with no option but to extend the same because adjournment after adjournments were given sometimes at the request of the appellants and sometimes at the request of the respondents. Be that as it may, the above interim order passed by the Court was extended as it laste till the disposal of the matter. In this background, it cannot be said that the learned Additional District Judge was unreasonable in showing his keenness to dispose of the matter expeditiously. Learned trial Court was not justified in staying the proceedings in this background even though he was aware of the facts that the appellants had moved a transfer application. It appears that initially, the appellants were also not keen for getting the proceedings stayed. It is demonstrated by the fact that the appellants did not file any application seeking stay of the proceedings. It was moved at a later stage. Since the learned District Judge was not available, the above application could not be disposed of on merits. What I mean to say is that even the development occasioned by the institution of the transfer application did not provide any occa- sion for postponing the matter and correctly so looking to the background and history of the case. (8). I, therefore, uphold the steps taken by the learned Addl. District Judge to dispose of the matter expeditiously. Hence, the learned counsel for the appellants was not justified in declining to argue the case. The fact that appellants changed a number of advocates is indicative of the fact that the appellants did not like to proceed with the case and enjoyed the benefit emanating from the order of the Court maintaining the status quo. (9). I am, therefore, not persuaded to accede to reuquest of the learned coun- sel for the appellants that the case may be remanded and the appellants be given an opportunity to make submissions on merits. (10). On merits also, I am inclined to agree with the finding of the learned trial Court. The courts are normally slow in staying the execution of a decree unless some cogent reasons placed before the Court. The most important fact is that Bodh- pal Singh is wholly supporting the respondent No.2. He has admitted execution of the sale and he has also submitted that he is bound by the decree. The courts are normally slow in staying the execution of a decree unless some cogent reasons placed before the Court. The most important fact is that Bodh- pal Singh is wholly supporting the respondent No.2. He has admitted execution of the sale and he has also submitted that he is bound by the decree. The only fact whether the suit house was an ancesteral property or the self falls for determination but in that context also, I am not inclined to interfere with the order of the trial Court. (11). The order of the trial Court, therefore, does not suffer from any infirmity like mis-reading non-application of mind or perversity. (12). I, therefore, find no force in the appeal and it is hereby dismissed.