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2014 DIGILAW 3719 (ALL)

Amit Garg v. Tabassum Gajala

2014-12-11

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri Manish Goyal, learned counsel for the plaintiff revisionists and Sri Ravi Kant, Senior Advocate assisted by Sri Ashish Kumar Singh, learned counsel appearing for the defendant respondent no. 1. 2. This revision under Section 115 CPC arises out of order 15.11.2011 passed by the court of first instance in Original Suit No. 274 of 2004 (Amit Garg and another Vs. Smt. Tabassum Gajala and others) whereby three applications of the plaintiff revisionists paper nos. 258 Ga, 260 Ga and 261 Ga have been rejected. 3. The above three applications were for the purposes of summoning of record of original suit no. 231 of 1978, directing the defendants no. 2,3 and 4 of the suit namely Javed Haider, Tanvir Haider and Naved Haider to give their specimen signatures for comparison with their admitted signatures and for opinion of a handwriting expert thereof. 4. Sri Manish Goyal learned counsel for the plaintiff revisionists submits that the matter as regards application no. 258 Ga for summoning of Original Suit No. 231 of 1978 has been rendered infructuous, in as much as, the court had subsequently ordered for the summoning of the said record. He has therefore confined his relief in the revision regarding rejection of other two applications paper no. 260 Ga and 261 Ga only. 5. The submission is that the court of first instance has framed additional issues in the suit and two of the said issues namely issues no. 16 and 17 are to the effect as to whether the judgment, order and decree dated 28.2.1979 passed in original suit No. 231 of 1978 has any effect of the binding nature over the free hold deed dated 29.2.2004 and whether the said free hold deed has been executed in violation of the said decree.The opinion of the handwriting expert regarding the signatures of Haider brothers is necessary for the decision of the above two issues. 6. Sri Ravi Kant to counter the above submission submits that the above two issues are practically redundant in view of the fact that the decree passed in original suit no. 231 of 1978 has already been set aside in a subsequent suit no. 785 of 2001 instituted by Haider brothers. 7. The dispute in the suit is regarding Nazul Bungalow no. 11 Kanpur Road, Allahabad. 231 of 1978 has already been set aside in a subsequent suit no. 785 of 2001 instituted by Haider brothers. 7. The dispute in the suit is regarding Nazul Bungalow no. 11 Kanpur Road, Allahabad. A free hold deed in respect of the said property was executed in favour of defendant respondent no. 1 by the State Government on 29.3.2004. The plaintiff revisionists have instituted the present suit no. 274 of 2004 for cancellation of the above sale deed alleging that one M.C. Gupta had an agreement to purchase the said property in his favour from the original lessee Smt. Shahar Bano. On the death of Smt. Shahar Bano her heirs namely Haider brothers started interfering with his rights over the said property, therefore, he had filed original suit no. 231 of 1978 for a decree of permanent injunction and the said suit was decreed on 28.2.1979. The said decree holder M.C.Gupta thereafter nominated predecessor in interest of the plaintiff revisionists for getting free hold rights and as such they are the only persons entitle to get free hold rights in the said property. 8. On the other hand defendant respondent no. 1 claims that the Haider brothers on 5.11.2001 have nominated her to get free hold rights in the aforesaid property. Accordingly, free hold rights have been given to her in the aforesaid property by means of free hold deed dated 29.2.2004. 9. It is in the above circumstances, the plaintiff revisionists submit that the nomination made by the Haider brothers in favour of defendant respondent no. 1 is invalid and in violation of the decree passed in original suit no. 231 of 1978. In the said suit Haider brothers have participated and the decree passed therein is binding upon them and as such they could not have made any other nomination except in favour of the plaintiff revisionist. 10. In short, the entire emphasis of the plaintiff revisionists for seeking specimen signatures of the Haider brothers and for an expert opinion thereof is based upon the decree passed in original suit no. 231 of 1978. 11. The aforesaid Haider brothers had filed original suit no. 785 of 2001 for setting aside the decree of permanent injunction passed in original suit no. 231 of 1978. The said suit was decreed on 31.3.2009 and the decree passed in original suit no. 231 of 1978. 11. The aforesaid Haider brothers had filed original suit no. 785 of 2001 for setting aside the decree of permanent injunction passed in original suit no. 231 of 1978. The said suit was decreed on 31.3.2009 and the decree passed in original suit no. 231 of 1978 was set aside.The matter is now in appeal and is pending consideration. 12. On date the said decree is not in existence and has been set aside. The judgment and order setting aside the aforesaid decree continues to exist irrespective of the fact that the appeal has been preferred against it until and unless it is finally overturned and the decree of Original Suit No. 231 of 1978 is restored. 13. In view of the above, the impact and the effect of the above decree, if any on the free hold deed dated 29.3.2004 would only be relevant and material if the decree passed in original suit no. 785 of 2001 is set aside and the decree of original suit no. 231 of 1978 is restored. 14. No doubt the court of first instance is obliged to decide and pronounce judgment on each and every issue which has been settled for adjudication between the parties but in case any issue is found to be superfluous or redundant, the court instead of adjudicating the same can decide it by simply stating that it requires no adjudication for the given reasons and the controversy involved in the suit can be adjudicated on the basis of the other surviving issues between the parties. 15. Since the decree passed in original suit No. 231 of 1978 had been set aside, it is no longer material and relevant for the court below to consider its impact in the present suit. 16. In addition to the above, if the plaintiff wants to adduce evidence regarding the signatures of Haider brothers, they can get their admitted signatures on record of this case compared with their signatures in dispute privately by any handwriting expert and submit report thereof. It is not necessary to obtain orders from the court in this regard. 17. In view of the aforesaid facts and circumstances as stated above, the opinion expressed by the court below that the necessity for deciding issue nos. 16 and 17 as settled by the court below would only arise if the decree passed in original suit no. It is not necessary to obtain orders from the court in this regard. 17. In view of the aforesaid facts and circumstances as stated above, the opinion expressed by the court below that the necessity for deciding issue nos. 16 and 17 as settled by the court below would only arise if the decree passed in original suit no. 231 of 1978 is restored is perfectly justified and requires no interference. 18. The revision as such lacks merit and is dismissed with liberty to the plaintiff revisionists to move appropriate application if so advised before the appellate court in civil appeal no. 89 of 2009. 19. The finding or any observation made in the impugned order on merits of the suit would not be binding and have any material bearing at the time of decision of the suit on merits. 20. Since there are already directions by this Court for expeditious disposal of the suit, the court below is directed to keep in mind the said direction and to proceed with the suit as expeditiously as possible. 21. The revision is dismissed.