Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 100 (JK)

Subhash Bhasin v. Vinod Gupta

2004-04-12

Y.P.NARGOTRA

body2004
1. This Civil Second Appeal is directed against the judgment and decree dated 23-1-2004 passed by the learned District Judge Jammu, whereby the appeal of the appellant against the judgment and decree dated 17-5-2003 passed by the learned City Judge Jammu has been dismissed. 2. Brief facts giving rise to the filing of the present appeal are that respondent No.1, Vinod Gupta, filed a suit against the erstwhile defendant Prithvi Raj Bhasin, seeking his ejectment from the suit Shop on the ground of personal necessity. Said defendant filed his written statement, however before the suit could be decided during the pendency of the suit said defendant expired. Plaintiff filed an application seeking impleadment of the legal heirs, namely Smt. Krishan Bhasin, subhash Bhasin, Abhinash Bhasin, S,t. Usha Sabharwal, Smt. Krishna Kohli and Smt. Sushma Sawhney. Notices were issued to the proposed L. Rs by the learned trail court Smt. Krishna Kohli and Smt. Susham Sawhney did not appear before the trial court to contest the application filed by the Plaintiff; however, Smt. Krishna Bhasin. Subash Bhasin and Abhinash Bhasin appeared and filed their objections. In the objection said L.Rs submitted as follows: "It is submitted that non-applicants 2 and 3 had executed a lease deed in favour of non-applicant No.1 Smt.Krishna Bhasin widow of Prithvi Raj Bhasin and thereby non-applicants 2 & 3 relinquished the interest with respect to the suit property in favour of Smt. Krishna Bhasin. The relinquishment is also made with regard to tenancy rights of the shop in dispute as it is the only source of livelihood of Smt. Krishna Bhasin Non-applicants 2 & 3 will have no objection in case of Smt. Krishna Bhasin is arrayed as defendant in their place as one of the legal representative of the deceased Prithvi Raj Bhasin. The relinquishement dedd executed by non-applicant 2 & 3 dated 24.04.1998 registed with the Sub-Registrar Jammu on the same day is attached herewith as annexure A." 3. All the three said L.Rs.prayed in their objections that only Smt. Krishna Bhasin be arrayed as a defendant and the names of non-applicants 2 & 3 be delected. It would be pertinent to point Sabharwal and Smt. Krishna Kohli and Sushma Sawhney are three daughters of the deceased, who stood married at that time and were living in respective houses of their husbands. It would be pertinent to point Sabharwal and Smt. Krishna Kohli and Sushma Sawhney are three daughters of the deceased, who stood married at that time and were living in respective houses of their husbands. It appears that in view of the stand taken by the said three L.Rs. learned trial court. The trial court by its judgment dated 17-05-2003 decreed the suit in favour of the plaintiff and passed the decree for ejectment against the defendants. 4. As already said the suit was contested by Smt. Krishna Bhasin widow of the deceased and defendants 2&3 who had already relinquished their interest in her favour projected the defence before the trial court that personal necessity of Smt. Krishna Bhasin was greater than that of the plaintiff. It is also apparent from the perusal of the record that the appellant herein Subhash Bhasin appeared as a witness for the defendants and in his statement admitted that he and his brother Abhinash Bhasin did not require the shop in question. According to him same was needed by their mother, Krishna Bhasin defendant. The trial court after appreciating the evidence of the parties through the aforesaid judgment came to the conclusion that the plaintiff has established his case against the defendants. Accordingly the suit was decreed. 5. After the suit being decreed admittedly defendants Krishna Bhasin and Abhinash Bhasin have not filed any appeal for questioning the validity of the decree. Therefore as against them the judgment and decree of the trial court has attained finality. To question the judgment and decree of the trial court only defendant Subhash Bhasin filed the appeal before the learned District Judge Jammu. During the pendency of the appeal the appellant herein also filed an application seeking permission of the court for leading additional evidence. The appellate court has dismissed the appeal of the appellant by its judgment dated 23-01-2004 on the premise that the appellant being not an aggrieved person from the judgment and decree of the trial court is not entitled to maintain the appeal. No finding has been returned by the 1 appellate court on the legality and correctness of the finding of the trial court whereby the issues framed in the suit stood determined. The appellant aggrieved by the dismissal of the appeal by the 1st appellate court has filed this second appeal. 6. No finding has been returned by the 1 appellate court on the legality and correctness of the finding of the trial court whereby the issues framed in the suit stood determined. The appellant aggrieved by the dismissal of the appeal by the 1st appellate court has filed this second appeal. 6. I have heard the learned counsel for the parties and perused the record thoroughly. 7. Learned Counsel for the appellant has argued that the mode adopted by the 1st appellate court in disposing of the appeal is not recognized by law. He submits that as a court of 1st appeal it was the duty of the learned District Judge to reappraise the evidence led by the parties and then return a finding in the question as to whether the finding returned by the trial court was in consonance with the evidence led by the parties. According to Mr. Jain learned counsel for the appellant the judgment of the 1st appellate court is illegal and therefore liable to be set aside. On the other hand the contention of learned counsel for respondent No.1 is that the appeal could be maintained only by a person who is aggrieved by the judgment impugned. According to Mr. Sharma, learned counsel for respondent No.1 the 1st appellate court was not required to appreciate, scrutinize and assess the legality of the findings returned by the trial court in the suit at the behest of a person who does not have any interest in the litigation. 8. I have considered the respective contentions of learned counsel for the parties and in my view the learned 1st appellate court was not debarred from examining the question of maintainability of the appeal at the behest of the appellant. In order to maintain an appeal the appellant in my view was required to satisfy the 1st appellate court that he had interest in the litigation and the finding returned by the judgment impugned was a finding against him. In a case where there is no finding of a trial court against the appellant the appellant cannot insist for examination of the validity of the judgment passed. In a case where there is no finding of a trial court against the appellant the appellant cannot insist for examination of the validity of the judgment passed. In the present case, as already noticed, it was the appellant himself who had filed the relinquishment deed and had submitted in his objections to his impleadment as a party defendant in place of the deceased defendant Prithvi Raj Bhasin that it was only Smt. Krishna Bhasin who was the legal heir of the deceased as he has relinquished all his tenancy rights qua the suit shop in her favour. In this view of the stand taken before the trial court only Smt. Krishan Bhasin was the contesting defendant. Therefore, she alone was competent to file the first appeal against the judgment and decree of the trial court, as a matter of right. The appellant in appeal could not be allowed to urge in face of his specific admission made in his objections as well as in his statement before the trial court that though personally he had no interest in the suit shop for having relinquished his tenancy rights in favour of Smt. Krishana Bhasin, yet the appeal should be heard on merits of the findings returned by the trial court for determination of issues framed in the suit. Therefore, the 1st appellate court was justified in dismissing the appeal of the appellant as not maintainable at his instance. 9. It is settled principle of law that a second appeal can be maintained only on a substantial question of law. The appellant has formulated many questions in the memorandum of appeal but in my view none of the questions formulated arise for adjudication in the circumstances of the case. Therefore, there is no merit in this appeal, which is accordingly dismissed. Nor order as to costs.