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2013 DIGILAW 132 (PAT)

Gita Devi v. Yatindra Nath Singh

2013-01-29

JYOTI SARAN

body2013
ORAL ORDER Heard Mr. Ashok Kumar, learned counsel for the petitioner and Mr. Chandrakant, learned counsel for the opposite party. 2. This application is directed against the order dated 14.12.2009 passed by learned Additional District Judge-IV, Siwan whereby learned Judge has been pleased to dismiss the Misc. Appeal No. 12 of 2002 filed by the petitioner and affirm the order dated 17.10.2001 passed in Misc. Case No. 10 of 1993 whereunder the application filed by the petitioner seeking substitution, had been rejected. 3. Facts of the case briefly stated is that Title Suit No. 244 of 1986 was filed by the opposite party herein, seeking specific performance of contract as against one Bhola Pandey (since deceased) with regard to the suit property on the basis of an agreement for sale stated to have been executed on 28.10.1984. The suit was decreed ex parte on 18.9.1987 by the learned Sub Judge, Siwan. An Execution Case No. 24 of 1987 followed and a sale deed was executed through the process of the Court. An application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) was filed by the said Bhola Pandey giving rise to Misc. Case No. 5 of 1989 and which was dismissed for non-prosecution. Misc. Case No. 10 of 1993 filed for restoration of Misc. Case No. 5 of 1989 was also dismissed when the learned Sub Judge refused to restore the Misc. Case No. 5 of 1989. The said Bhola Pandey moved this Court in C.R. No. 1990 of 1994 and which was allowed by order passed on 3.11.1995 requiring the trial Court to consider the restoration application on merits and not on technicality. As a consequence of the order passed by this Court, the proceeding in Misc. Case No. 10 of 1993 filed for restoration of Misc. Case No.5 of 1989 revived but while the proceeding was pending, the said Bhola Pandey deceased. The date of his death is not known to this petitioner who claims purchase from the said Bhola Pandey, of the suit land which was subject matter of Title Suit No. 244 of 1986 by virtue of three sale deeds dated 14.2.1984 and one registered sale deed dated 18.1.1985. The date of his death is not known to this petitioner who claims purchase from the said Bhola Pandey, of the suit land which was subject matter of Title Suit No. 244 of 1986 by virtue of three sale deeds dated 14.2.1984 and one registered sale deed dated 18.1.1985. The petitioner claiming right over the suit property by virtue of the sale deeds aforementioned prayed for substitution by filing an application on 16.6.2001 and which was objected to by the opposite party who filed his rejoinder on 28.6.2001 mentioning therein that the case had abated by the death of Bhola Pandey two years ago. The Sub Judge-I, Siwan by order dated 17.10.2001 dismissed the Misc. Case No. 10 of 1993 holding the same as having abated. The petitioner filed M.A. No. 60 of 2002 before this Court and this Court by order dated 11.3.2002 while returning the memo afforded liberty to the petitioner to file the appeal before the appropriate forum. It is thereafter the appeal was filed before the Court below and the learned Additional District and Sessions Judge-IV, Siwan by the impugned order dated 14.12.2009 was pleased to dismiss the Misc. Appeal No. 12 of 2002 while observing in paragraph 7 of the impugned judgment and order that the appeal of the petitioner did not contain the date of death of Bhola Pandey, the original petitioner; that there was no application filed for setting aside the abatement under Order 22 Rule 9 of the Code or a petition for condonation of delay in moving the Court below and that the petitioner had not submitted any document to demonstrate a derivative title to the suit property by virtue of the sale deeds. The orders of the Court below have been questioned in the present proceedings. 4. The Ashok Kumar, learned counsel for the petitioner has submitted that the learned Court below have misdirected itself in holding the proceedings as having abated when in fact, the application for substitution had been filed by the petitioner within the period of 3 years as stipulated under Article 137 of the Limitation Act and which is the proper provision for maintaining an application for substitution arising from a miscellaneous application as also held in a Bench decision of this Court reported in 1990 BBCJ 107 (Om Chand versus Sheobrat Kuer & Ors.). It is thus submitted that where the opposite party himself had admitted that the said Bhola Pandey had deceased two years prior to the filing of the substitution petition, it by itself proved that the substitution was within a period of 3 years prescribed under Article 137 and thus was within time. It is thus submitted that once the said opinion of the Court below is removed then the petitioner steps into the shoes of the original petitioner Bhola Pandey to maintain the restoration application. 5. The prayer of the petitioner has been contested by Mr. Chandrakant, learned counsel for the decree holder. It is submitted that the petitioner having lost a test with the decree holder-opposite party in Eviction Suit No. 15 of 1986 by virtue of a judgment and order dated 10.9.1996 which was affirmed in Eviction Appeal No. 7 of 1996 when the appeal was dismissed by the appellate Court by judgment and order dated 17.8.2010 of the Additional District Judge, F.T.C.II, Siwan, he has chosen to unsettle the matter by trying to intervene in the miscellaneous proceedings filed by the vendor late Bhola Pandey. It is submitted that the eviction suit had also been preferred by the petitioner against the opposite party relying upon the four sale deeds which is the basis for maintaining the substitution application and which plea of the petitioner did not find favour when the eviction suit as also the appeal arising there from was dismissed in the light of the judgment and decree passed in Title Suit No. 244 of 1986 and in view of the sale deed executed in favour of the opposite party pursuant to the decree. It is thus submitted that the sale deed having been executed through the process of the Court under the judgment and decree passed in Title Suit No. 244 of 1986 the appropriate remedy for the petitioner if any, would be by way of an independent suit but certainly not by intervening in an application filed under Order 9 Rule 13 of the Code by the vendor. 6. I have heard learned counsel for the parties and have perused the materials on record. 7. Had it been merely a matter of substitution without there being any dispute as to locus and title, this Court would have drawn in favour of the submission made by Mr. 6. I have heard learned counsel for the parties and have perused the materials on record. 7. Had it been merely a matter of substitution without there being any dispute as to locus and title, this Court would have drawn in favour of the submission made by Mr. Ashok Kumar, learned counsel appearing for the petitioner but the matter does not stop there inasmuch as the learned Courts below have also gone into the very locus of the petitioner to intervene in the matter and have rejected his contention in absence of any documents brought on record by the petitioner to establish his right of intervention in the proceedings. It is but obvious that the petitioner not being a legal heir of the deceased Bhola Pandey but claiming to be a legal representative by virtue of the sale deeds which he claims to have been executed in his favour by late Bhola Pandey, the relevant documents for establishing his right were never placed before the Court below. Even otherwise the right if any, of the petitioner is conditional upon a declaration as to the genuineness of the sale deeds said to have been executed by Bhola Pandey in his favour. Obviously, the genuineness of the said sale deeds could not have been a subject matter of the Title Suit No. 244 of 1986 which had been filed for specific performance of Contract in the light of the agreement of sale deed dated 28.10.1984 executed by Bhola Pandey in favour of the opposite party. That the legal heirs of Bhola Pandey never chose to get substituted in the miscellaneous proceedings arising from Misc. Case No. 10 of 1993 seeking to restore Misc. Case No. 5 of 1989 which was filed questioning the ex parte judgment and decree passed in Title Suit No. 244 of 1986, is an aspect drawn in favour of the opposite party. Until such time that the right claimed by the petitioner over the suit property by virtue of the sale deeds dated 14.2.1984 and 18.1.1985 is upheld by a competent Court of law, he is a stranger to the proceedings. The claim of the petitioner of being a legal representative of the deceased Bhola Pandey and seeking to intervene in the miscellaneous proceedings in such circumstances would be a travesty in law. 8. The claim of the petitioner of being a legal representative of the deceased Bhola Pandey and seeking to intervene in the miscellaneous proceedings in such circumstances would be a travesty in law. 8. For the reasons aforesaid, this Court does find any reasons for interfering with the order impugned in the present application and this application is accordingly, disposed of. 9. This Court however, before parting with the order would like to put on record that the findings by the Courts below as impugned in the present proceedings as also the findings recorded herein would not operate prejudicial to the interest of the petitioner if he chooses to take recourse to the remedies that is available to him under law for establishing his right.