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2018 DIGILAW 957 (RAJ)

Lalita Devi v. Manak Chand

2018-04-09

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. I.A. (Inward No.22320/2011) The present application under Section 5 of the Limitation Act has been filed by the appellant, seeking condonation of delay in filing the present appeal. The reasons for filing the appeal belatedly, as assigned in the application at hand, are that the Court below had deprived the appellant of her rights, and decreed the suit in light of a compromise/relinquishment deed said to have been executed by the appellant, which was obtained by fraud. It has been asserted that the appellant was not called for attesting the compromise by the Court and as such he came to know about the decree and such fraud years after passing the preliminary decree. 2. It is to be noticed that with the same assertion and indication, the appellant had filed an application under Section 5 of the Limitation Act, laying challenge to the preliminary decree dated 02.12.2004 and the said application under Section 5 of the Limitation Act filed by the appellant had been rejected by this Court on 15.02.2012. 3. This Court does not find any justifiable reason for condoning the delay as the earlier application under Section 5 of the Limitation Act filed along with appeal against the preliminary decree containing identical assertions had been rejected by this Court. 4. In my considered opinion, the rejection of appellant's application at earlier stage vide order dated 15.02.2012 operates as res-judicata. 5. Apart from above, there is no explanation, much less reasonable explanation of the delay in filing the appeal, for this reason also the application under Section 5 of the Limitation Act deserves to be rejected. Hence the application at hand is liable to be and hereby rejected. 6. Having rejected the application under Section 5 of the Limitation Act, though there is no need to consider the question of the maintainability of the appeal, but as learned counsel for the parties have argued extensively on this aspect and requested the Court to pronounce upon the same, I proceed to decide the issue of maintainability of the appeal against final decree, when the appeal against preliminary decree has already been rejected. 7. 7. The appeal at hand under Section 96 of the Code of Civil Procedure has been preferred against the judgment and final decree dated 24.03.2011 passed by learned District Judge, Churu in Civil Original Suit No.10/2008 (8/1996) whereby the suit for partition filed by the plaintiff had been decreed. 8. Avoiding the unnecessary details, the facts relevant for the present purposes are that the plaintiff Manak Chand respondent No.1 herein had filed a suit for partition, in which, a preliminary decree dated 02.12.2004 came to be passed by the Trial Court, whereby shares of the contesting parties were determined. 9. Against the preliminary decree aforesaid, the appellant Lalita Devi preferred an appeal, along with an application seeking condonation of delay as the appeal was filed after expiry of the period of limitation. The said application under Section 5 of the Limitation Act filed along with the appeal was rejected by this Court vide order dated 15.02.2012 and a challenge there-against laid by the appellant before Hon'ble Supreme Court remained unsuccessful. As a result of dismissal of appellant's appeal, the preliminary decree has undisputably attained finality. 10. Thereafter, the Trial Court proceeded to pass a final decree in furtherance of the preliminary decree dated 02.12.2004, vide impugned judgment and decree dated 24.03.2011. By way of the present appeal, the appellant has sought to lay challenge to the apportionment of the shares made by the Trial Court, vide the preliminary decree dated 02.12.2004 also. While considering the application and appeal, this Court had posed a question regarding maintainability of the appeal as the appellant's appeal against the preliminary decree had been rejected. 11. It will not be out of place to reproduce the relevant part of the said order dated 13.02.2017:- "Learned counsel for the appellant prays for and is granted time to make submissions regarding the issues raised in the appeal and whether the appeal filed against the final decree can be maintained on the issues, based on which, the preliminary decree has been passed and the first appeal, against which, has been dismissed on the ground of limitation." 12. Responding to the Court's query raised on 13.02.2017, Mr. Arpit Bhoot, learned counsel for the appellant contended that the appellant's appeal against the preliminary decree had been rejected as time barred and no adjudication on its merit had been made by this Court. Responding to the Court's query raised on 13.02.2017, Mr. Arpit Bhoot, learned counsel for the appellant contended that the appellant's appeal against the preliminary decree had been rejected as time barred and no adjudication on its merit had been made by this Court. He contended that in the present factual backdrop, the appellant is not precluded from laying challenge to the terms of the preliminary decree, despite his appeal having been rejected. 13. In this regard, he referred to and relied upon provisions of Section 97 of the Code of Civil Procedure to contend that the only restriction or embargo in the way of an appellant filing appeal against the final decree is that he had failed to file an appeal against the preliminary decree. He contended that as the appellant had filed an appeal against the preliminary decree, (though the same had been rejected by this Court), he cannot be denied right of maintaining the present appeal against final decree and laying challenge to the apportionment of the shares or the shares of the rival parties, involved in the suit, which stood determined by the preliminary decree. 14. In support of his argument, Mr. Arpit Bhoot relied upon two judgments of Hon'ble the Apex Court rendered in case of Ganduri Koteshwaramma & Anr. Vs. Chakiriyanadi & Anr., (2011) 9 SCC 788 and in case of S. Sai Reddy Vs. S. Narayana Reddy & Ors., (1991) 3 SCC 647 and argued that if there is any change in the circumstances, after passing of the preliminary decree, the Trial Court can very well take cognizance of such change in circumstances and appropriately modify the order, while passing the final decree. Taking support of these judgments, Mr. Arpit Bhoot submitted that the Trial Court is not bound by the preliminary decree, while preparing the final decree and it can take into consideration all the arguments and contentions raised by the contesting parties. 15. Apart from the aforesaid judgments, Mr. Bhoot relied upon judgment of Hon'ble Supreme Court in case of S.P. Chengalvaraya Naidu (Dead) By LRs. Vs. Jagannath (Dead) By LRs. & Ors., (1994) 1 SCC 1 and submitted that the Court can examine the issue in accordance with law, ignoring the delay, if a decree is obtained by fraud, as per Section 17 of the Contract Act, the compromise or the decree is inherently nullity. 16. Mr. Vs. Jagannath (Dead) By LRs. & Ors., (1994) 1 SCC 1 and submitted that the Court can examine the issue in accordance with law, ignoring the delay, if a decree is obtained by fraud, as per Section 17 of the Contract Act, the compromise or the decree is inherently nullity. 16. Mr. Bhoot relied upon this case with a view to contend that the relinquishment deed or the compromise, said to have been executed by the appellant in favour of the other co-sharers was a forged document, and the Trial Court could not and should not have decreed the suit on the basis of such compromise. He, therefore, submitted that it was incumbent upon the Trial Court to have considered contentions raised by the appellant in this regard, while passing the final decree. 17. Mr. Chotia, learned counsel for the respondents, on the other hand, submitted that the question raised by Mr. Bhoot in the present case has already been set at rest, by Hon'ble Supreme Court way back in 1966 in case of Sheodan Singh Vs. Smt. Daryao Kunwar, (1966) AIR(SC) 1332. He read para No.16 of the said judgment for the consideration of the Court, which reads thus :- "16. This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. But none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father. It is true that the High Court dismissed the appeals arising out of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may itself not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on the merits by the Additional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may be the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicata impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicata again becomes res sub-judice and it is the decree of the appeal court which will then be res judicata. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming into the trial court's decision given on merits, the appeal court's decree cannot be res judicata, the result would be that even though the decision of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never be res judicata. We cannot therefore accept the contention that even though the trial court may have decided the matter on the merits there can be no res judicata if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court is confirmation of the decision of the trial court given on the merits. Acceptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties. We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." 18. I have considered the arguments advanced by rival parties. As far as first two judgments cited by Mr. I have considered the arguments advanced by rival parties. As far as first two judgments cited by Mr. Bhoot are concerned, they are essentially on the principle that the Trial Court can take into consideration the subsequent development/event, taking place after drawing of the preliminary decree while preparing or drawing the final decree. 19. Such position of law is settled and does not exist in the present case. Here is a case, where the preliminary decree itself has been affirmed, may be on the ground of limitation and no subsequent event or development has came into existence. The facts or contentions regarding the compromise or relinquishment deed purportedly drawn by the appellant had already been raised by the appellant and has been seemingly rejected or are deemed to have been rejected by this Court, as a result of the dismissal of the appellant's appeal against a preliminary decree. In considered opinion of this Court, the same operates as res-judicata against the appellant. These two judgments cited by the learned counsel for the appellant do not give any guidance about the issue of resjudicata involved in the present case. 20. The third judgment cited by Mr. Bhoot is also not applicable in the present case, inasmuch as the appellant's contentions regarding the compromise or 'vakalatnama' having been fraudulently drawn or obtained has been rejected by this Court, while rejecting her application under Section 5 of the Limitation Act and appeal vide its earlier order dated 15.02.2012. As against this, the judgment cited by Mr. Chotia, AIR 1996 SC is directly on the issue, wherein it has been held that if the appeal against the preliminary decree has been rejected even on the ground of limitation, it shall operate as a fetter to the appellant's right to lay challenge to the final decree on the ground already raised and rejected during the dismissal of the appeal against the preliminary decree. 21. In view of the discussion foregoing, this Court is of the considered opinion that the present appeal filed by the appellant is not maintainable and the same is therefore rejected. 22. Mr. Bhoot prayed that it may be observed that the dismissal of the appeal would not operate as a fetter against the appellant, if she chooses to avail any other appropriate legal remedy. 22. Mr. Bhoot prayed that it may be observed that the dismissal of the appeal would not operate as a fetter against the appellant, if she chooses to avail any other appropriate legal remedy. In this regard, needless it to observe that it is for that Court to decide the implication or effect of the present order, as and when such situation arises. Any observation at this juncture is uncalled for and unnecessary.