Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 113 (JK)

Ab. Aziz Mir v. Suhail Nabi

2015-03-24

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : Muzaffar Hussain Attar, J.:- 1. The Ist. Additional District Judge, Srinagar, passed a decree and judgment on 24th June, 1997 in a Civil Original Suit titled Mst. Zainab Begum versus Mushtaq Ahmad Dar and others. The learned trial Court passed the decree for pre-emption in respect of suit property in favour of the Plaintiff-non applicant. The Applicant-Appellant was not party in the Suit. The Applicant-Appellant, after learning about the decree passed by the learned trial Court, challenged the same in a writ petition (OWP 45/1998). The learned writ Court allowed the writ petition vide its decision dated 19th February, 2007. The judgment and decree, passed by the learned trial Court, was set aside and case was remanded to the learned trial Court for fresh adjudication. The learned trial Court was directed to implead the writ petitioner as party-defendant in the said case. The learned trial Court was also directed to allow the writ petitioner to file the written statement. The Plaintiff-non Applicant was also given liberty to amend the Suit, if required, in view of the changed circumstances of the case. 2. The Plaintiff - non Applicant, feeling aggrieved of the judgment of the learned writ Court, challenged the same in Letters Patent Appeal (LPA) 73/2007. The Letters Patent Bench of the Court set aside the judgment of the learned writ Court and restored the judgment and decree of the learned trial Court dated 24th June, 1997 along with execution proceedings. 3. The Applicant-Appellant challenged the judgment of the Letters Patent Bench before the Hon'ble Supreme Court in a Special Leave Petition (SLP) but subsequently withdrew the same. The Applicant-Appellant, through his counsel, prayed before the Hon'ble Supreme Court that he be permitted to withdraw the SLP, reserving liberty to seek such other remedy as may be permissible in law. The SLP was dismissed as withdrawn with aforesaid liberty. 4. It is in the aforestated backdrop that this Application has been filed with the prayer that leave be granted to the Applicant-Appellant to file Appeal against the judgment and decree passed by the learned Ist. Additional District Judge, Srinagar. 5. Mr. J.H. Reshi, learned counsel for the Applicant - Appellant submitted that the Applicant was not party in the Suit and the decree passed in the Suit is adversely affecting his rights qua the suit property. Additional District Judge, Srinagar. 5. Mr. J.H. Reshi, learned counsel for the Applicant - Appellant submitted that the Applicant was not party in the Suit and the decree passed in the Suit is adversely affecting his rights qua the suit property. It is further submitted that the suit property has been transferred to him by way of oral gift and part of it is being used for commercial activity. Learned counsel advanced arguments in respect of merits of the main case and submitted that, in the facts and circumstances of this case, the decree and judgment, sought to be challenged by way of filing Appeal, in law, would be set aside. He further submitted that after gaining knowledge about the decree and judgment, the Applicant - Appellant was advised to challenge the same by filing writ petition. Learned counsel further submitted that acting bona, fide on the legal advice, writ petition was filed, which was allowed by the learned writ Court. He further submitted that the judgment of the learned writ Court was, however, set aside by the Letters Patent Bench of the Court. Mr. Reshi submitted that the Applicant - Appellant cannot be rendered remedy-less and he, being the only affected person because of the judgment and decree of the learned trial Court, has to be given leave to appeal against the aforesaid judgment and decree to vindicate his rights recognized by law. Learned counsel, accordingly, prayed that the Application be allowed and Applicant be granted leave to file Appeal against the aforesaid decree and judgment. 6. Mr. B.A. Bashir, learned Senior counsel, appearing for non - Applicant - decree holder, seriously and vehemently contested the Application. He submitted that the Applicant - Appellant, in view of the judgment of the Hon'ble Division Bench, is precluded from challenging the decree and judgment, in as much as, the Letters Patent Bench has ruled that the Applicant is bound by the decree and judgment of the learned trial Court. Learned counsel invited attention of the Court to various paragraphs of the Division Bench judgment, more particularly, paragraph 24 thereof and submitted that it has been held that principle of Lis Pendens would apply in respect of transfer/alienation, which has been effected after filing of the Civil Suit. Learned counsel also submitted that in this fact situation, the Applicant - Appellant has lost the right to file the Appeal. Mr. Learned counsel also submitted that in this fact situation, the Applicant - Appellant has lost the right to file the Appeal. Mr. Bashir invited attention of the court to the finding recorded by the Letters Patent Bench to the effect that in the facts of this case, the learned writ Court could not set aside the decree and judgment in a writ petition. Learned counsel also submitted that after the Suit was amended by the non Applicant - decree holder, the learned trial Court passed the order of status quo and thereafter the suit property was transferred in favour of the Appellant - Applicant. Learned counsel submitted that transfer of property in favour of the Applicant - Appellant, in violation of Court orders, is rendered illegal and the Appellant - Applicant has no right to seek leave of the Court for challenging the decree and judgment of the learned trial Court. 7. Learned counsel for the parties, in support of their contentions, cited various judgments at the bar. 8. It is the settled legal position that any transaction, which takes place during pendency of the Suit in respect of suit property, is affected by the doctrine of Lis Pendens, which principle is enshrined in Section 52 of the Transfer of Property Act. Whether a person is bona fide purchaser or otherwise, would not strip off the doctrine of Lis Pendens of its impact on such transaction. A party, which gains interest in an immoveable property, which is subject matter of the Suit, is always bound by the decree and judgment of the Court, notwithstanding the fact that he is not party to the Suit. This principle of law is based on the principle of equity. The immoveable property, which is subject matter of the Suit, is the nucleus, around which are woven the interests of the beneficiaries of the suit property. It is the interest, which flows from the property, which is germane to the issues, which are to be settled by the Court of competent jurisdiction. The rights and interests flow from the property, which is subject matter of the Suit and it is those rights and interests, which are to be adjudicated upon by the Court of competent jurisdiction. It is the interest, which flows from the property, which is germane to the issues, which are to be settled by the Court of competent jurisdiction. The rights and interests flow from the property, which is subject matter of the Suit and it is those rights and interests, which are to be adjudicated upon by the Court of competent jurisdiction. When the Court of competent jurisdiction returns its findings in respect of the suit property, then all those persons, who have secured interest in such property, are bound by the judgment and decree of the Court notwithstanding the fact that such a person may not be party to the Suit. 9. The Letters Patent Bench of this Court has upheld the principles underlying Section 52 of the Transfer of Property Act. It is for this reason that the Applicant - Appellant has to suffer consequences of the decree and judgment. In case the argument of Mr. B.A. Bashir - learned Senior Advocate, is accepted, then the Appellant - Applicant will be rendered remedyless. 10. True it is that Applicant-Appellant is bound by the decree and judgment of the learned trial Court but, simultaneously, he has a right, given by Section 96 of the Code of Civil Procedure (CPC), to challenge the decree and judgment before the appellate Court. This statutory right cannot be taken away from the Appellant - Applicant because he had challenged the decree and judgment in a writ petition, which writ petition, in the facts of this case, was, ultimately, held to be not maintainable by the Letters Patent Bench. 11. The Letters Patent Bench, at paragraph 35 of the judgment, has observed that the Applicant-Appellant, if at all felt aggrieved by the judgment and decree and the execution proceedings initiated on that basis, could have filed Appeal after obtaining leave to appeal in view of mandate contained in AIR 1991 SC 374. 11. The Letters Patent Bench, at paragraph 35 of the judgment, has observed that the Applicant-Appellant, if at all felt aggrieved by the judgment and decree and the execution proceedings initiated on that basis, could have filed Appeal after obtaining leave to appeal in view of mandate contained in AIR 1991 SC 374. The Hon'ble Supreme Court, in the said decision, has ruled that 'a person, who is not party to the Suit, may prefer Appeal with leave of the appellate Court and such leave shall be granted if he would be prejudicially affected by the judgment.' The argument of learned counsel for non Applicant - decree holder that the transaction in favour of the Applicant - Appellant is illegal in view of the status quo order passed by the learned trial Court, would be an issue, which would require to be considered as and when the Appeal would be listed for consideration of the Court. All other issues about merits of the case, which are raised and debated, would be considered and findings returned when the Appeal is listed for consideration. At the moment, it is an admitted fact that the Applicant-Appellant is prejudicially affected by the decree and judgment of the learned trial Court. He is not precluded from challenging the same. The Appeal has to be considered in accordance with law. 12. For the above stated reasons, this Application is allowed. Leave is granted to the Applicant-Appellant to file the Appeal against the decree and judgment dated 24th June, 1997 passed by the Ist Additional District Judge, Srinagar, in a Civil Original Suit titled Mst. Zainab Begum versus Mushtaq Ahmad Dar and others. 13. Registry to list the Condonation of Delay Application/Appeal as also the Civil Revision Petition 43/2013 before the bench having the roster. The Civil Revision Petition be not treated as part heard.