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2006 DIGILAW 2968 (PNJ)

Dhanvir Singh v. Gurinder Pal Singh

2006-07-21

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. The present revision petition under Article 227 of the Constitution of India has been filed against the order passed by the learned Additional District Judge, Patiala allowing the appeal filed by the respondent Gurinder Pal Singh under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code). Learned Lower Appellate Court was pleased to stay the alienation of the suit land till the disposal of the suit. 2. The facts of the case as borne out from the record are that plaintiff-respondent Gurinder Pal Singh had filed a suit for specific performance of the agreement to sell dated 25.1.1994 directing the petitioner-defendant to execute and get the sale-deed registered of116 acres of land i.e. 1/5th share of 324 bighas 15 biswas of land situated in village Ghazipur, Tehsil Dera Bassi, District Patiala. The case of the plaintiff-respondent was that the petitioner-defendant had agreed to sell the said land to the plaintiff for a total consideration of Rs. 8,80,000/- i.e. Rs. 55,000/- per acre. It was further the case of the petitioner that a sum of Rs. 4,70,000/- was paid in advance at the time of execution of agreement and out of this a sum of Rs. 1,00,000/- was paid through cheque drawn on State Bank of Patiala and remaining amount of Rs. 3,70,000/- was paid in cash. The case further pleaded was that said land was in possession of some other person against whom the petitioner-defendant had been fighting litigation and that he had won up to the Hon ble Supreme Court and that the petitioner-defendant had intimated that he had initiated legal proceedings for eviction of the person in possession of the land and sale-deed shall be executed as and when the possession is taken from the said person. It was the further case of the plaintiff-respondent that in spite of his offer to pay the balance consideration the petitioner-defendant was not executing the sale deed. The plaintiff-respondent further averred that he had approached the police for registration of a case against the petitioner-defendant and on his complaint F.I.R. No. 300 dated 24.10.2004 under Sections 420 and 120B I.P.C. was registered at Police Station, Mohali. The plaintiff-respondent further averred that he had approached the police for registration of a case against the petitioner-defendant and on his complaint F.I.R. No. 300 dated 24.10.2004 under Sections 420 and 120B I.P.C. was registered at Police Station, Mohali. It is the case of the plaintiff-respondent that in spite of registration of the case still the sale-deed was not executed and thereafter having been left with no alternative present suit was filed for specific, performance of the agreement to sell. 3. The suit was contested by the present petitioner and he denied the agreement to sell. It was further the case of the petitioner before the learned trial Court that he had only 1/10th share in the land mentioned and therefore, there was no occasion to dispose of 16 acres of land of which he was not the owner. The claim of the petitioner was that in 1993 he had agreed to sell 8 acres of land in favour of the plaintiff at the rate of Rs. 1 lac per acre out of which a sum of Rs. 1 lac was taken as earnest money through cheque. It was his case that thereafter the plaintiff-respondent never approached him. The agreement dated 25.1.1994 was alleged to be forged and fabricated document. The receipt of payment of Rs. 3,70,000/- was also denied. The case set up by the petitioner-defendant was that this agreement has been forged by the respondent-plaintiff while he was in custody in pursuance to the registration of the case. 4. Along with the suit, an application was filed under Order 39 Rules 1 and 2 of the code praying for restraining the present petitioner from alienating the property during the pendency of the suit. Learned trial Court came to the conclusion that the plaintiff did not have a prima facie case in his favour nor the balance of convenience was in his favour. However, to protect the interest of the plaintiff-respondent a direction was issued that in case the petitioner-defendant sells the land during the pendency of the suit then he was to incorporate the factum of pendency of the suit in the conveyance deed to be executed by him. Learned lower Appellate Court, on the ground of a prima facie case, balance of convenience, held that the order to be perverse. The property further alienation should be stayed. Learned lower Appellate Court, on the ground of a prima facie case, balance of convenience, held that the order to be perverse. The property further alienation should be stayed. He further came to the conclusion that the learned trial Court failed to exercise judicial discretion and therefore, set aside the order. 5. At the time of issuing notice of motion, it was noticed by this Court as under: Counsel contends that in view of the provisions of Section 106 CPC and Section 39 of the Punjab Courts Act, appeal before the District Judge was not competent as value of the disputed property admittedly was more than Rs. 5,00,000/-. Notice of motion for July 4, 2006. Alienation of the property in dispute is stayed till further orders. Trial Court is directed to continue with the pending trial. 6. Mr. Puneet Bali, learned Counsel appearing for the petitioner by placing reliance on the provisions of Section 39 of the Punjab Courts Act, 1918 submitted that as the jurisdictional value of the suit as per the plaint was Rs. 8,80,000/- therefore, the appeal against the order of the learned trial Court could be field before the High Court. The learned District Judge did not have any jurisdiction to entertain and try the said appeal. Section 39 of the Act is reproduced below: 39. Appeals from Civil Judges (Senior Division) and Civil Judges (Junior Division): (1) Save as afroesaid, an appeal from a decree or order of a Civil Judge (Senior Division) and Civil Judges (Junior Division) shall lie- (a) to the District Judge, where the value of the original suit in which the decree or order was made did not exceed five lakh rupees. (b) to the High Court in any other case. (2) Except as hereinafter provided, all appeals, pending in the High Court, the value of which does not exceed twenty thousand rupees shall stand transferred to the District Judge exercising ordinary territorial jurisdiction in such appeals. (2-A) Subject to the provisions of Sub-section (2B) an appeal to the court of District Judge shall be heard by the District Judge or by an Additional District Judge. (2-B) An additional District Judge shall hear only such appeals as the High Court may, by general or special order, direct or as the District Judge of the District may make over to him. (2-B) An additional District Judge shall hear only such appeals as the High Court may, by general or special order, direct or as the District Judge of the District may make over to him. (3) The High Court may by notification direct that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Civil Judges (Senior Division) and Civil Judges (Junior Division) shall be preferred to such other Civil Judges (Senior Division) and Civil Judges (Junior Division) as may be mentioned in the notification, and the appeals shall, thereupon be preferred accordingly and the Court of such other Civil Judges (Senior Judges) and Civil Judges (Junior Division) shall be deemed to be a District Court for the purposes of all appeals so preferred. 7. Learned Counsel for the petitioner further contended that when Section 39 of the Act is read with Section 106 of the Code it leaves no manner of doubt that the District Judge, Patiala had no jurisdiction in the present matter as the order was passed in the present case under Order 39 Rules 1 and 2 of the Code with respect to the subject-matter of a suit where pecuniary jurisdiction was Rs. 8,80,000/- i.e. more than Rs. 5 lacs and therefore, the appeal against the decree passed by the learned trial Court was to lie to the Hon ble High Court and accordingly the present appeal against the order impugned was also not competent, Section 106 of the Code is reproduced below for ready reference. What Courts to hear appeals: Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. 8. Learned Counsel for the petitioner has placed reliance on a judgment of the Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bohra (1990-1) 97 P.L.R. 182 (S.C.) to contend that when a decree is passed by the Court having no jurisdiction then it is nullity and the same can be challenged even at the stage of execution or in the collateral proceedings. He made reference to para No. 11 of the judgment of Hon ble Supreme Court which reads as under: This Court has held that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced relied upon, and even at the stage of execution or in collateral proceedings. 9. The petitioner thereafter referred to a judgment of this Court in Ajmer Kaur and Ors. v. Punjab State and Ors. (1990-1) 97 P.L.R. 314 to contend that where the jurisdiction of the Court is barred then the Court is not required to return the petition but is required to reject the same. However, in my opinion reliance on the said judgment is misconceived as in the said case the matter was before the Civil Court with regard to which it had no jurisdiction as Section 30(g) of the Northern India Canal and Drainage Act, 1873 barred the jurisdiction of the Civil Court. In that situation it held that same was required to be rejected. On merit the contention raised by the learned Counsel for the petitioner was that in the present case the plaintiff-respondent had not come to the Court with clan hands and had concealed material facts regarding registration of criminal case and also the factum that the said proceedings were held to be falsely instituted as per the report of the Deputy Superintendent of Police. 10. The learned Counsel for the petitioner also placed reliance on Smt. Nandita Bose v. Rattanlal Nahata to contend that the appeal filed by the respondent-plaintiff was liable to be rejected and the same cannot be returned to him for presentation to the proper Court as the contention of the petitioner regarding the agreement to sell and the counter allegations of the parties are yet to be adjudicated upon. 11. I do not feel that this judgment is also of any help to the petitioner as the appeal under Order 39 Rules 1 and 2 against an order of injunction is competent and therefore, the Courts having no pecuniary jurisdiction was bound to return the same to the appellant for presentation in proper Court. 12. Mr. 11. I do not feel that this judgment is also of any help to the petitioner as the appeal under Order 39 Rules 1 and 2 against an order of injunction is competent and therefore, the Courts having no pecuniary jurisdiction was bound to return the same to the appellant for presentation in proper Court. 12. Mr. Aman Kashyap, learned Counsel appearing for the respondent on the other hand contended that in view of the judgment of Hon ble Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass 2004 A.I.R. S.C.W. 6333 : 2005 (1) C.C.C. 430 injunction cannot be declined on the basis that alienation would be subject to the law of lis pendens and construction raised will be at own risk or on the basis of an undertaking that the alienation and the construction will be at his own risk. It was contended that in view of the judgment passed by the Hon ble Supreme Court referred to above unless and until a case of irreparable loss or damage is made out by a party to the suit the Court should not permit the nature of property being changed which also includes alienation or transfer of property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. There is no dispute with the proposition laid down by the Hon ble Supreme Court. But in the present case what has to be seen is that the learned trial Court took note of the fact that suit for specific performance with regard to the alleged agreement of sale of 1994 was filed in 2005 i.e. after a lapse of 11 years. There was serious dispute regarding execution of this agreement. The learned trial Court came to the conclusion that the plaintiff-respondent had no prima facie case nor balance of convenience was in favour of the respondent-plaintiff. However, in spite this, his interest was protected with a direction to the petitioner-defendant that in the event of sale it has to be specifically mentioned in the conveyance deed that the property was the subject-matter of dispute in a civil suit, so that the person buying the property could take note of the status of the parties. However, in spite this, his interest was protected with a direction to the petitioner-defendant that in the event of sale it has to be specifically mentioned in the conveyance deed that the property was the subject-matter of dispute in a civil suit, so that the person buying the property could take note of the status of the parties. Learned Counsel relied upon A.D. Koshal v. Balakrishna to allege that the objection to the territorial/discretionary jurisdiction of the court could not be entertained in the absence of evidences of failure of justice as consequence of the trial in wrong Court. He made reference to para 3 of the said judgment which reads as under: 3. We have heard learned Counsel for the parties on the question of jurisdiction. An unfortunate aspect of his litigation has been that although that question has been agitated already in three Courts and has been bone of contention between the parties for more than a decade, the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court. That provisions is contained in Sub-section (1) of Section 21 of the Civil Procedure Code which runs thus: 21. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfillment of the following three conditions is essential: (1) The objection was taken in the Court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement; (3) There has been a consequent failure of justice. All these three conditions must co-exist. Now in the present case condition Nos. 1 and 2 are no doubt fully satisfied; but then before the two appellate Courts below could allow the objection to the taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Now in the present case condition Nos. 1 and 2 are no doubt fully satisfied; but then before the two appellate Courts below could allow the objection to the taken, it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon learned Counsel for the contesting respondents to point out to us even at this stage any reason why we would hold that a failure of justice had occurred by reason of Manjeri having been chosen as the plea of suing but he was unable to put forward any. In this view of the matter we must hold that the provisions of the Sub-section above extracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded. We, therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree. 4. In the result we accept the appeal, set aside the judgment of the High Court and remand the case back to it for deciding on merits the appeal which culminated in that judgment. As the proceedings for the final decree have been pending since 1966. We further direct that the High Court shall decide the appeal last mentioned at the earliest possible and, in any case, within three months from the receipt of the records from the Court. The Registry shall take immediate steps to have the records despatched to the High Court. 13. In view of the law laid down, learned Counsel for the petitioners contended that in the present case also though first two conditions are applicable as the petitioners had raised an objection against the maintainability of appeal before the learned lower appellate Court still there has been no consequent failure of justice and therefore, it is not open to this Court to set aside the said order under Article 227 of the Constitution of India. He also placed reliance upon a judgment of this Court in Gurmit Kaur and Anr. He also placed reliance upon a judgment of this Court in Gurmit Kaur and Anr. v. Dhanto (1987-2) 92 P.L.R. 290 wherein this Court was pleased to follow the judgment of Hon ble Supreme Court. Reference was made to para No. 3 of the said judgment which is reproduced below for ready reference. 3. After hearing the learned Counsel for the appellants, I find that the learned Additional District Judge fell in error in reversing the finding of the trial Court on issue No. 5. Section 2(1) of the Code of Civil Procedure (for short the Code) provides that no objection as to the place of suing shall be allowed by any Appellate Court or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. It has been held in Koopilan Uneens daughter Pathumma v. Koopilan Uneens son Kuntalana Kutty dead by LRs. that an objection to the place of suing may be entertained by an appellate or revisional Court, if the fulfillment of the following three conditions is essential: (1) The objection was taken in the Court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement; (3) There has been a consequent failure of justice. All these three conditions must co-exist. It was the respondent who wanted to oust the jurisdiction of the Court at Hoshiarpur to show before the learned Additional District Judge, that failure of justice has resulted in the circumstances of the case. The judgment of the learned Additional District Judge shows that the respondent did not advert to this aspect of the matter nor tried to establish that trial of the suit in the Civil Court at Hoshiarpur had resulted in failure of justice. There is even no finding to this effect recorded by the learned Additional District Judge. 14 I have considered the arguments raised by the learned Counsel for the respondent and do not agree. It is true that the question with regard to the territorial jurisdiction is required to be taken at the earliest opportunity and that the party taking such objection before Appellate and Revisional Court to prove the failure of justice. 14 I have considered the arguments raised by the learned Counsel for the respondent and do not agree. It is true that the question with regard to the territorial jurisdiction is required to be taken at the earliest opportunity and that the party taking such objection before Appellate and Revisional Court to prove the failure of justice. However, in the present case it has to be noticed that the objection was not with respect to the territorial jurisdiction of the Court trying the suit but to the pecuniary jurisdiction of the Appellate Court to entertain and try the present appeal. There is difference between the suit filed in the wrong Court then the appeal filed before the Court to which it does not lie. It is settled law that the appeal is creation of statute and unless the statute allows the Court to entertain and try the appeal the order passed has to be treated as without jurisdiction and nullity as no district Court in the State of Punjab can entertain and try the present appeal as the pecuniary jurisdiction in the present case was more than Rs. 5 lacs. Therefore, the judgment relied upon by the counsel for the respondent cannot advance his case. 15. I am abstaining from discussing the merit of the judgment passed by the learned lower Appellate Court and also as to how the order is sustainable or not as I am of the firm opinion that the learned Additional District Judge in view of the provisions of Section 39 of the Act as read with Section 106 of the Code did not have the jurisdiction to try the appeal as the same was required to be filed before the High Court. 16. Accordingly, this revision petition is accepted The order passed by the learned Additional District Judge, Patiala is set aside and direction is issued to the learned Lower Appellate Court to return the appeal filed by the respondent-plaintiff so as to enable him to file the same in the Court of competent jurisdiction.