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2014 DIGILAW 128 (CHH)

Yashwant Raj v. Sadanand Singh

2014-03-21

SANJAY K.AGRAWAL

body2014
JUDGMENT Sanjay K. Agrawal, J. 1. The substantial question of law formulated and to be answered in this second appeal is as under:-- "Whether the First Appellate Court was justified in dismissing the first appeal only on the ground that the appellant did not make any efforts for getting impleaded themselves before the Trial Court during the 11 years, when the matter was pending before the Trial Court?" The imperative facts required for determination of this appeal are as under:-- [For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the Trial Court.] 1.1. The plaintiff-Sadanand Singh filed a suit for declaration of title, possession and permanent injunction inter alia on the ground that suit land bearing Khasra No. 737/10, area 0.56 acres is owned and possessed by him; and adjoining land bearing Khasra Nos. 737/2 and 3 is owned by respondent No. 2. It is further case of the plaintiff that adjacent to the land of defendant No. 2, there is land of defendant No. 3-Paras Bangani, which is Khasra No. 737/1; and claimed decree for declaration of title, recovery of possession and permanent injunction. 1.2. The defendant Nos. 1 and 2 filed their separate written statements, whereas defendant No. 3 did not file any written statement either opposing or supporting the case of the plaintiff. 2. The Trial Court, by its judgment and decree, dated 5-2-2011, decreed the suit holding that plaintiff is title holder of the suit land bearing Khasra No. 737/10, area 0.56 acres of the land. 3. Thereafter, present appellants being the sons, daughters and widow of Amarchand Bangani filed an appeal under Section 96 of the Code of Civil Procedure alongwith an application under Section 151 of the Code of Civil Procedure stating inter alia that the suit property originally owned by their grandfather late Shri Prathviraj and after his death their father has inherited the suit property. It was further pleaded that since the name of plaintiff s father-Bhavnath Singh is recorded in the revenue records, the Trial Court has decreed the suit in plaintiff's favour. It was further pleaded that after the death of their grandfather Prathviraj, the plaintiffs and defendant Nos. 3 and 4 have inherited the suit property. It was further pleaded that since the name of plaintiff s father-Bhavnath Singh is recorded in the revenue records, the Trial Court has decreed the suit in plaintiff's favour. It was further pleaded that after the death of their grandfather Prathviraj, the plaintiffs and defendant Nos. 3 and 4 have inherited the suit property. The said application was rejected by the Trial Court on 20-9-2012 holding that the appellants did not take any steps for their impleadment during the pendency of suit for the last 11 years and, thereafter, dismissed the appeal. 4. Feeling aggrieved and dissatisfied with the said order/judgment, the instant second appeal has been filed under Section 100 of the Code of Civil Procedure by the plaintiffs, which has been admitted on the substantial question of law formulated as mentioned in opening paragraph of this judgment. 5. Shri Rajeev Shrivastava, learned Counsel appearing for the appellants would submit that the First Appellate Court has committed palpable error of jurisdiction in rejecting the application and thereby dismissing appeal, by holding that present appellants have no right to prefer first appeal. He would further submit that though the present appellants are not party to a suit and consequent decree, yet they are entitled to file appeal with the leave of the Court as their interest would be prejudicially affected by the judgment and decree of the Trial Court. 6. On the other hand, Shri C.B. Kesharwani, learned Counsel appearing for respondent No. 1 would submit that the First Appellate Court is fully justified in dismissing the application and thereafter dismissing the appeal as the proposed appellants are not entitled to maintain appeal as their interest is not involved in the appeal and their interest is not affected by the judgment and decree of the Trial Court. 7. I have heard learned Counsel appearing for the parties and perused the records of both the Courts below including order/judgment impugned with utmost circumspection. 8. The short question that needs consideration by this Court in this appeal is whether the present appellants were entitled to maintain the appeal under Section 96 of the Code of Civil Procedure having appealable interest in the suit property with the leave of the Court. 9. It is well-settled law; aright of appeal is not a natural or inherent right. The short question that needs consideration by this Court in this appeal is whether the present appellants were entitled to maintain the appeal under Section 96 of the Code of Civil Procedure having appealable interest in the suit property with the leave of the Court. 9. It is well-settled law; aright of appeal is not a natural or inherent right. It is well-settled that an appeal is a creature of statute and there is no such right to file an appeal unless it is given clearly and in express terms by a legislation. In M. Ramanarain Pvt. Ltd. v. State Trading Corporation of India Ltd., (1983) 3 SCC 75 , the Supreme Court held as under:-- "16. The right to prefer an appeal is a right created by statute. No party can file an appeal against any judgment, decree or order as a matter of course in the absence of any suitable provision in some law conferring on the party concerned the right to file an appeal against any judgment, decree or order." In Dayawati v. Inderjit, AIR 1966 SC 1423 , speaking for the Supreme Court, Hidayatullah, J. (as He then was) stated:-- "10.......An appeal has been said to be 'the right of entering a Superior Court, and invoking its aid and interposition to redress the error of the Court below', the only difference between a suit and an appeal is that an appeal 'only reviews and corrects the proceedings in a cause already constituted but does not create the cause'." Though Section 96 of the Code recognises the right of appeal, it does not refer to or enumerate persons who may file an appeal. As a general principle of law, however, before an appeal can be filed, two conditions must be satisfied:-- (i) The subject-matter of appeal must be a 'decree', i.e., a conclusive determination of "the rights of the parties with regard to all or any of the matters in controversy in the suit"; and (ii) The party appearing must have been adversely affected by such determination. Thus, only a party to a suit adversely affected by a decree or any of his representatives-in-interest may file an appeal. Thus, only a party to a suit adversely affected by a decree or any of his representatives-in-interest may file an appeal. But, a person who is not a party to a decree or order may, with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the decree or order or is aggrieved by it or is otherwise prejudicially affected by it. 10. Generally speaking, a decision cannot be said to adversely affect a person unless it will operate as res judicata against him in any future suit. In order to decide whether a decision will operate as res judicata and will thus adversely affect a party, the substance of the judgment and decree, and not the form thereof must be considered. The question whether a party is adversely affected by a decree is a question of fact to be determined in each case according to its particular circumstances. In the leading decision in Adi Pherozshah Gandhi v. H.M. Seervai, (1970) 2 SCC 848, speaking for the majority, Mitter, J. stated:-- "Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary or otherwise, or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But, it has been held in a number of cases that a person who is not a party to a suit may prefer an appeal with the leave of the Appellate Court and such leave would not be refused where the judgment would be binding on him under Explanation VI to Section 11 of the Code of Civil Procedure." 11. The Supreme Court in case of Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. (In Liquidation), (1970) 3 SCC 573 , has held as under:-- "3......In our opinion, apart from Rule 130 to which reference has been made by the High Court, the Official Liquidator as well as the learned Company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part not following the correct procedure it is wholly incomprehensible how the appellant could be deprived of her right to get her grievance redressed by filing an appeal against the order, which had been made in her absence and without her knowledge. It would be a travesty of justice if a party is driven to file a suit, which would involve long and cumbersome procedure when an order has been made directly affecting that party and redress can be had by filing an appeal, which is permitted by law. It is well-settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment." 12. Likewise, the Supreme Court in case of State of Punjab (now Haryana) and others v. Amar Singh and another, AIR 1974 SC 994 , has held as under:-- "84. Firstly, there is a catena of authorities, which following the doctrine of Lindley, L.J., In re : Securities Insurance Co.,(1894) 2 Ch 410, have laid down the rule that a person, who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person, who might have been made ex nominee, a party--see: Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom. 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys. 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114 , In re: B, an Infant, (1958) 1 QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235 ." 13. 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys. 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114 , In re: B, an Infant, (1958) 1 QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235 ." 13. From the above general principles, it can be said that the following persons may prefer an appeal under Section 96:-- (i) A party to the suit who is aggrieved or adversely affected by the decree, or if such party is dead, his legal representatives; (ii) A person claiming under a party to the suit or a transferee of the interest of such party, who, so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit; (iii) A guardian ad litem appointed by the Court in a suit by or against a minor or a lunatic; (iv) Any other person, with the leave of the Court, if he is adversely affected by the decree. 14. Having examined the legal position with regard to challengability of a decree passed by the Trial Court by present appellants, who are not party to the suit, reverting back to the facts of the present case, admittedly the suit property was earlier held by late Prathviraj and the present appellants are his grandsons & daughters, plaintiff Sadanand Singh only impleaded one of the grandson Mr. Paras Bangani as defendant No. 3 in a suit and even he did not file any written statement and failed to contest the suit property and, judgment and decree has been passed by the Trial Court on 5-2-2011 declaring the title in favour of the plaintiff on suit land against the interest of the present appellants, thus, the present appellants are prejudicially affected by the judgment and decree passed by the Trial Court. The appellants, in their application filed before the First Appellate Court, have clearly stated that the suit property belongs to them and they are title holder of the suit property, and they are aggrieved and prejudiced by passing of the decree by the Trial Court without impleading them as party. 15. The appellants, in their application filed before the First Appellate Court, have clearly stated that the suit property belongs to them and they are title holder of the suit property, and they are aggrieved and prejudiced by passing of the decree by the Trial Court without impleading them as party. 15. The First Appellate Court, did not consider the application for leave to appeal in its proper perspective, holding that for the last 11 years during the pendency of suit no steps were taken by the present appellants to get themselves impleaded in the suit and the First Appellate Court has also held that no document has been brought on record to show that they were not aware of the proceeding and even then they did not take any steps with regard to their impleadment in the suit for the last 11 years. Facts remain that they were not party to the suit, and in the suit property they have right, title and atleast appealable interest and if they are not granted, leave to file appeal, they would be prejudicially affected by the judgment and decree and, therefore, the First Appellate Court has failed to exercise its jurisdiction by rejecting the appellants, application and not granting leave to prefer appeal under Section 96 of the Code of Civil Procedure and thus, the application filed by the appellants before the First Appellate Court seeking leave of the Court to prefer first appeal under Section 96 of the Code of Civil Procedure deserves to be allowed on. 16. Resultantly, appeal is allowed in part. Order of the First Appellate Court dated 20-9-2012 dismissing the appellant's application and thereby dismissing the appeal deserves to be and is accordingly set aside. Matter is remitted back to the First Appellate Court to decide the matter in accordance with law. Appellants' application under Section 96 read with Section 151 of the Code of Civil Procedure filed before the First Appellate Court is allowed and it is held that Yashwant Raj and others are entitled to prefer first appeal under Section 96 of the Code of Civil Procedure and matter is restored to the file of Additional District Judge, Kabirdham for hearing and disposal in accordance with law on merits. 17. 17. Since the first appeal was filed on 3-3-2011, the First Appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order. 18. Parties are directed to appear before the First Appellate Court on 21-4-2014. 19. Record of both the Courts below be sent back to the First Appellate Court. No order as to costs.