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2013 DIGILAW 676 (MP)

Rajesh Agarwal v. Rajendra Singh

2013-06-18

A.K.Shrivastava, B.D.Rathi

body2013
ORDER Shrivastava, J. -- 1. The order passed in this appeal shall also govern disposal of connected First Appeal No.76/2003 (Dr. Shanti Raghuvanshi and another v. Dr. Rajendra Singh and others), since both these appeals have been filed against a common judgment and decree dated 6th February, 2003 passed by learned First Additional District Judge, Guna in Civil Suit No.16-A/2001. 2. By taking shelter under section 96 of CPC the defendants 4 to 8 have filed this first appeal assailing the judgment and decree dated 6th February, 2003 passed by learned First Additional District Judge, Guna in Civil Suit No.16-A/2001; whereby the suit of plaintiffs has been decreed. 3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since on the limited points Shri Agrawal, learned counsel for the appellants has addressed this appeal. The contention of learned counsel is that the manner and fashion in which the impugned judgment and decree has been passed by learned trial Court is surrounded by dark clouds of doubt. A glaring illegality has been pointed out by learned counsel on page No.2 of the certified copy of the impugned judgment and has submitted that date has not been mentioned although the month of January, 2003 has been written in the judgment and the certified copy of the impugned judgment is a photo copy of the original, although on page No.17 the date 6th February, 2003 has been mentioned. Learned counsel has also pointed out that application for obtaining the certified copy of the impugned judgment and decree was submitted on 7th February, 2003 and the same was delivered on 14.2.2003 to the defendants. Learned counsel further submits that in the original judgment by altogether different typewriter date 6th February, 2003 has been mentioned. It has also been put forth by learned counsel that on 6th February, 2003 only, the final arguments were advanced by respective counsel for the parties and thus, it has been put forth by learned counsel that the judgment was already written much earlier to the hearing of the arguments. 4. It has also been put forth by learned counsel that on 6th February, 2003 only, the final arguments were advanced by respective counsel for the parties and thus, it has been put forth by learned counsel that the judgment was already written much earlier to the hearing of the arguments. 4. It has been then contended by the learned counsel that at the time of writing of the judgment, issue No.4 was amended without any application of the parties and if the Court was of the view that issue No.4 is to be amended, certainly opportunity ought to have been provided to the parties to lead evidence or at least the Court should ask whether parties want to lead any evidence on the amended issue. Having not done so, the learned trial Court has acted illegally and has further deviated from the well settled procedure prescribed under Order XIV rule 5 of CPC and Order XVIII. 5. By putting a deep dent upon the impugned judgment passed by learned trial Court, it has been contended by learned counsel that Hanumant was not the party in the suit but a decree of 1/3 share has been passed in his favour and, therefore, on this ground also, the impugned judgment and decree cannot be allowed to remain stand. 6. Lastly, it has been put forth byhim that defendant No.3 was Keshar Bai who had died during pendency of the suit on 11.1.2002 but without bringing her LRs on record, a decree has been passed in her favour by giving 1/3 share of the suit property and, therefore, the decree has been passed against a dead persons which is ab initio void. Hence, on these premised submissions, it has been put forth by learned counsel that the suit be dismissed or the case be remanded to learned trial Court for passing a fresh judgment. 7. On the other hand, Shri Jain, learned counsel for the plaintiff-respondents argued in support of the impugned judgment and submitted that well reasoned judgment has been passed which does not require any interference. The appeal sans merits and, therefore, it be dismissed. 8. Having heard the learned counsel for the parties, we are of the firm view that this appeal deserves to be allowed and the case is required to be sent back to learned trial Court for passing a fresh decision. 9. The appeal sans merits and, therefore, it be dismissed. 8. Having heard the learned counsel for the parties, we are of the firm view that this appeal deserves to be allowed and the case is required to be sent back to learned trial Court for passing a fresh decision. 9. Indeed, the present suit has been filed for declaration of share, partition as well as for a declaration tht different sale-deeds which were executed by defendants No.1 and 2 in favour of defendants No.4 to 8 are illegal and void. 10. Before we apt to consider the arguments raised by learned counsel for the parties, it would be condign to go through the orders passed by this Court while hearing the matter on different dates. On 7.4.2003, the following order was passed by this Court : “7.4.2003 : Shri D.K. Agrawal, learned counsel for the appellant. List with recors. Shri Agrawal states that the impugned order was prepared in January, 2003, whereas it was signed by the Judge on 6.2.2003. Shri Agrawal also states that the arguments were heard on that date itself but the defendants No.4 to 8 were not heard, although one Shri A.K. Jain has been noted to have appeared on their behalf. Thus, the District and Sessions Judge, Guna is directed to enquire into the matter and submit his report forthwith. List the matter after four weeks.” Thereafter, when the matter was taken up for hearing on 9.9.2008, following order was passed by this Court : “9.9.2008 : Shri D.K. Agrawal, Advocate for defendant-appellants. Shri R.D. Jain, senior counsel with Shri D.P.S. Bhadoriya for plaintiffs-respondents. It transpires that Keshar Bai has died. She was wife of Hanumant Singh. The trial Court has declared one third share of Hanumant Singh. It appears that there was plea that Hanumant Singh was alive at the time when the suit was filed though he was residing at America as averred in paras 1, 4 and 6 of the plaint. It is submitted that Keshar Bai has died but there is nothing on record to indicate that Hanumant Singh has also died. It is stated at Bar that Hanumant Singh has performed yet another marriage in America. In case Hanumant has died, whether Hanumant Singh has any issue required to be ascertained by the learned counsel appearing for the parties. It is submitted that Keshar Bai has died but there is nothing on record to indicate that Hanumant Singh has also died. It is stated at Bar that Hanumant Singh has performed yet another marriage in America. In case Hanumant has died, whether Hanumant Singh has any issue required to be ascertained by the learned counsel appearing for the parties. They have prayed for time to ascertain the aforesaid fact and to file appropriate application. Prayer allowed. As prayed by the counsel for the parties, one month’s time is granted. List it after one month.” 11. On bare perusal of order sheet dated 7.4.2003, this Court finds that despite there was a direction given to District and Sessions Judge, Guna to enquire into the matter and submit his report forthwith and further it was directed to list the appeal after 4 weeks, but till today no report has been received. 12. On bare perusal of the certified copy of the impugned judgment and decree which was given to the appellants in photostat, it is found that in between the word Dinank (date) and January 2013, there is a long gap which is usually kept vacant and the same is filled as soon as the judgment is pronounced. Sometimes, it may escape from the mind of learned Judge while signing the judgment to write the date on the first page but in the present case, the situation is very serious. If we keep page No.2 of the certified copy of the judgment which is in the photostat from in juxtaposition to page No.2 of the original judgment, we find that by rubbing the word January, month February has been substituted and typed by an altogether different typewriter and the date 6 has been typed by the same change typewriter. According to us, had the judgment been written only on 6th February, 2003, in the certified copy which is in the photo copy from, the month January, must not have been typed. It is pertinent to mention here that arguments were never heard by learned Judge who passed the impugned judgment in the month of January, since on bare perusal of the order-sheet dated 6th February, 2003, it reflects that arguments were heard only on 6.2.2003. It is pertinent to mention here that arguments were never heard by learned Judge who passed the impugned judgment in the month of January, since on bare perusal of the order-sheet dated 6th February, 2003, it reflects that arguments were heard only on 6.2.2003. Thus, it appears that without hearing the arguments, the judgment was written somewhere in the month of January, 2003 whichis in clear violation to Order XX rule 1 of CPC. Looking to the conduct, it is apparent that the learned Presiding Judge was biased towards the defendants and was very keen to decree the suit anyhow. Although this appeal is languishing for last 10 years, no report by the then District Judge, Guna has been received and during this long period of 10 years, so many District Judges must have been transferred. 13. Coming to the second contention of learned counsel which is in respect of the amendment of issues, on bare perusal of the original issues dated 8.10.2002, which were framed by the same Judge who passed the impugned judgment, it is clear that issue No.4 was amended suo motu. The issue No.4 which was originally framed is reproduced as under : ^^¼4½ D;k laifRr fodz;&i= esa Lo- j?kqukFk dks 1@3 Hkkx ds vfrfjDr Hkkx dks LoRo djus dk vf/kdkj ugha Fkk blfy, fodz;&i= ‘kwU; ,oa fu”izHkkoh gS\^^ But at the time of the passing of the impugned judgment, issue No.4 has been amended and the word Uttaradhikari (Heir) has been added which was not in the original issue number 4. The stand of defendants-appellants before learned trial Court was that late Raghunath did not execute any sale-deeds but his heirs have executed the sale-deeds and, therefore, in order to meet out the said stand, suo motu amendment has been made in issue No.4. No doubt, even without any application an issue can be amended by the trial Court but it is equally true that there should be an order in that regard. After amending the issue, learned trial Court was required to assign the reasons whether further evidence is to be recorded or not? We have gone through the entire order-sheets and we have also gone through the order-sheet dated 6.2.2003, the date when the judgment was pronounced, but we do not find that there is any whisper to amend the issue No.4. We have gone through the entire order-sheets and we have also gone through the order-sheet dated 6.2.2003, the date when the judgment was pronounced, but we do not find that there is any whisper to amend the issue No.4. Hence, it is quite apparent in order to meet out the stand of defendants-appellants, the word Uttaradhikari (Heir) has been added in issue No.4. It will be fruitful to mention here that in the original issues which were framed on 8.10.2002, in issue No.4, the word Uttaradhikari (Heir) has not been mentioned. 14. Coming to the 3rd contention of learned counsel for the appellants that a decree has been passed in favour of the person who is not a party. Indeed, learned trial Court decreed the suit by holding that Hanumant Singh s/o Anant Singh Raghuvanshi is having 1/3 share in the suit property and he has also been declared owner up to that extent. But, Hanumant Singh is not a party in the suit. Said Hanumant Singh is neither plaintiff nor has been added as defendant in the suit. According to plaintiffs, said Hanumant Singh is a missing person. Indded, this has also been so pleaded by the plaintiffs in the plaint. But according to us, it is only an averment, and therefore, had the notice been issued to said Hanumant Singh on his last address where he was residing, certainly some report of bailiff must have been received in that regard and, therefore, we cannot accept the said averment in the plaint that he is a missing pesons, and, therefore, when Hanumant Singh was not a party in the suit and no decree was claimed either in his favour or against him, the learned trial Court has erred in decfreeing the suit in his favour. Thus, again it appears that in order to give benefit to the plaintiffs, the said decree has been passed in favour of Hanumant Singh because according to the plaintiffs, said Hanumant Singh relinquished his share to the father of the plaintiffs, but there is no document on record in this regard. 15. Last submission put forth by learned counsel is that a decree has been passed against a dead person. 15. Last submission put forth by learned counsel is that a decree has been passed against a dead person. According to him, defendant No.3 Keshar Bai had died on 11.1.2002 and without impleading her LRs on record, the judgment has been passed against a dead person and, therefore, impugned judgment is void ab initio. However, on going through the record, we find that an application under section 151 CPC was filed by the plaintiffs on 7.2.2002 to delete her name because her LR defendant No.2 Raj Kumar was already on record. This application was opposed by the appellants by filing a reply on 13.2.2002 and in the reply it has been denied that plaintiff No.2 Raj Kumar s/o late Mohan Singh is the sole LR of late Keshar Bai. According to defendants, he is not at all the LR but the LR of deceased-defendant No.3 is the first defendant Smt. Shanti Raghuvganshi w/o late Shri Narendra Singh Raghuvanshi. Hence, according to us, in view of the opposition of the application about the disputed questions of fact that who is the LR of the deceased-defendant No.3, an enquiry should have been made by learned trial Court under Order XXII rule 5 of CPC, but the learned trial Court totally deviated from the said procedure. 16. Hence, we are of the view that the impugned judgment in the manner and fashion it has been passed, cannot be allowed to remain stand and same is hereby set aside and the case is send back to learned trial Court to re-decide the suit in accordance with the law. 17. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned trial Court is hereby set aside. Learned trial Court is directed to decide the suit afresh. The parties are directed to appear before learned trial Court on 29th July, 2013 and learned trial Court is hereby directed to decide the suit as early as possible preferably within 12 months from 29th July, 2003. Looking to the facts and circumstances of the case, the appellants are entitled for the cost of this appeal. Counsel fee Rs.10,000/-, if pre-certified. We are not requesting Hon’ble Acting Chief Justice to take appropriate action on the administrative side against the Judge who passed the impugned judgment since we have been informed that he has already been retired compulsorily. 18. Counsel fee Rs.10,000/-, if pre-certified. We are not requesting Hon’ble Acting Chief Justice to take appropriate action on the administrative side against the Judge who passed the impugned judgment since we have been informed that he has already been retired compulsorily. 18. Let a copy of this order be also kept in connected First Appeal No.76/2003. .............