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Allahabad High Court · body

2016 DIGILAW 2917 (ALL)

Rahmat Ali v. Sayyed Hasan Askari

2016-08-23

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Attau Rahman Masoodi, J. Heard Sri Amol Kumar, learned Counsel for the appellant. 2. The appellant herein is virtually aggrieved against the impleadment of respondent nos. 3 and 4 as appellants in civil appeal no. 41 of 2006 filed under Order XLIII Rule 1(d). The appeal is directed against the trial court order passed on 04.09.2006 whereby the application of some of the respondents filed under Order IX Rule 13 for setting aside the judgment/decree dated 26.07.2000 which was passed in favour of one Mohd. Ayub was rejected. The appellant has purchased the disputed property from the heirs of late Mohd. Ayub the decree holder and is aggrieved against the order dated 19.05.2016 passed on an application filed by respondent nos. 3 and 4 under Order 1 Rule 10. 3. In nutshell facts of the case are that one Mohd. Ayub brought a suit for declaration and possession against five defendants. The suit was decreed in favour of Mohd. Ayub by judgment / decree dated 26.07.2000. The judgment / decree so passed gave rise to an application under Order 9 Rule 13 which was filed by three persons namely Syed Hasan Askari, Syed Zulfiqar Haider and Syed Jargan Haider. One of the applicants Syed Zulfiqar Haider died on 05.02.2005, as such, the application filed under Order IX Rule 13 stood abated in so far as it related to Syed Zulfiqar Haider. This fact remained unnoticed and the application under Order IX Rule 13 came to be rejected by order dated 04.09.2006, which as a matter of fact operated merely against two applicants namely Syed Hasan Askari and Syed Jargaan Haider for the reason that the legal heirs of Syed Zulfiqer Haidar after his death on 05.02.2005 were not substituted in his place. 4. Interestingly, an appeal under Order XLIII Rule 1 (d) i.e. misc. appeal no. 41 of 2006 came to be instituted before the first appellate court below wherein the appellants named in the appeal included the name of Syed Zulfiqar Haider who had already died during pendency of application filed under Order 9 Rule 13 on 05.02.2005 i.e. much before the date of rejection of the said application on 04.09.2006. 5. An objection was filed by the appellant who claims to have purchased the property in question from the legal heirs of Mohd. Ayub disputing the maintainability of misc. 5. An objection was filed by the appellant who claims to have purchased the property in question from the legal heirs of Mohd. Ayub disputing the maintainability of misc. appeal at the instance of Syed Zulfiqar Hiader on the ground that he had already died at the time of institution of appeal. 6. Looking to the objection raised by the appellant, an application under Order 1 Rule 10 was filed by the respondent nos. 3 and 4 who claim to be legal heirs of late Syed Zulfiqar Haider. The first appellate court below by means of the impugned order dated 19.05.2016 allowed the application permitting the impleadment of respondent nos. 3 and 4 under Order 1 Rule 10 in place of late Syed Zulfiqar Haider as appellants in the appeal. 7. The court below while proceeding with the matter has miserably failed to notice the effect of death of Syed Zulfiqar Haider on 05.02.2005 while the application filed by him jointly with other persons was pending and had come to be decided by order dated 04.09.2006 when he was already dead. In fact the application filed by Syed Zulfiqar Haider under Order IX Rule 13 had abated on 04.09.2016, leaving no scope for the legal heirs of Syed Zulfiqar Haider to file an appeal against the order dated 04.09.2006 whereby the application filed under Order IX Rule 13 was rejected. Once the very right of filing an appeal was not available, the misc. appeal at the first instance could not have been instituted by the legal heirs of Syed Zulfiqar Haider much-less than allowing their impleadment as co-appellant under Order 1 Rule 10 which provision confers an authority on the trial court to add necessary parties in the suit proceedings at any stage. 8. This principle, however, will not apply in so far as the appellate proceedings are concerned for more than one reason. When a decree is passed by the civil court the objection on limitation is available to the opposite party apart from contesting the decree on merit. 9. In the instant case, the very right of appeal had not accrued to the legal heirs of late Syed Zulfiqar Haider who had died during pendency of the application under Order IX Rule 13. Therefore, the impleadment of respondent nos. 3 and 4 in the misc. 9. In the instant case, the very right of appeal had not accrued to the legal heirs of late Syed Zulfiqar Haider who had died during pendency of the application under Order IX Rule 13. Therefore, the impleadment of respondent nos. 3 and 4 in the misc. appeal without there being a cause for instituting such an appeal was clearly misconceived and the court below has clearly adopted a procedure which the law does not conceive. Thus, an error apparent on the face of record is visible. However, before arriving at a conclusive finding on this aspect on the merit, it would be desirable that notice is issued to respondent nos. 3 and 4 but notice need not be issued to rest of the respondents. 10. Issue notice to respondent nos. 3 and 4, returnable at an early date. 11. The proceedings of misc. appeal no. 41 of 2006 shall go on but in so far as the appeal on behalf of respondent nos. 3 and 4 is concerned, the proceedings shall remain stayed.