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2019 DIGILAW 339 (UTT)

DHARAMPAL SINGH v. SATISH KUMAR

2019-05-15

LOK PAL SINGH

body2019
JUDGMENT Hon'ble Lok Pal Singh, J. Since common questions of law and facts are involved in the aforementioned writ petitions, therefore, the same are taken up together and are being decided by this common judgment for the sake of brevity and convenience. 2. Petitioners have invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking quashing of the impugned judgment and order dated 30.11.2010, passed by Addl. District Judge III, Dehradun in Civil Appeal no. 58 of 2010 (arising out of misc. case no. 04 of 2009) Satish Kumar vs Dharampal and another, as also Civil Appeal no. 59 of 2010 (arising out of misc. case no. 05 of 2009), Satish Kumar vs Shyam Sunder and others. 3. Brief facts of the case are that Shyam Sunder Chhabra, Ram Kishan Chhabra, Shankar Lal Chhabra and Smt. Prakash Rani filed a suit for partition in regard to the demised property, being suit no. 738 of 1993, Shyam Sundar Chhabra vs Vilayati Lal and others. Dharampal s/o late Harnam Das was defendant no. 3 in the aforesaid suit, whereof Vilayati Lal, father of respondent no. 1, was defendant no. 1 in the aforesaid suit. Father of respondent no. 1 filed his written statement and contended that late Smt. Lajwanti [mother of Vilayati Lal (defendant no. 1) and grandmother of the plaintiffs & mother-in-law of plaintiff no. 4] executed a Will dated 13.12.1973 in favour of defendant nos. 1 and 2 and their family members. During the pendency of suit, respondent no. 1 filed an impleadment application under Order 1 Rule 10 CPC on 23.11.1996, being application no. 37A, supported by an affidavit (paper no. 38A) of respondent Satish. Objection thereon (paper no. 40C2) was filed by the plaintiffs against the impleadment application. The trial court vide order dated 08.10.1997 dismissed the impleadment application filed by respondent no. 1 Satish Kumar. 4. Respondent no. 1 did not challenge the order of dismissal of his impleadment application. Thereafter, the suit was heard by the trial court. The same was dismissed by judgment and decree dated 26.11.2001. Respondents (in WPMS no. 24 of 2011) namely, Shyam Sunder Chhabra, Ram Kishan Chhabra, Shankar Lal Chhabra and Smt. Prakash Rani filed Civil appeal nos. 241 of 2001 and 242 of 2001, and petitioner no. 2 Pankaj also filed appeal no. 253 of 2001. The First Appeal was allowed by I Addl. Respondents (in WPMS no. 24 of 2011) namely, Shyam Sunder Chhabra, Ram Kishan Chhabra, Shankar Lal Chhabra and Smt. Prakash Rani filed Civil appeal nos. 241 of 2001 and 242 of 2001, and petitioner no. 2 Pankaj also filed appeal no. 253 of 2001. The First Appeal was allowed by I Addl. District Judge, Dehradun, vide judgment and decree dated 17.07.2004, and the judgment of the trial court dated 26.11.2001 was set aside and suit for partition was decreed. 5. Feeling aggrieved, father of respondent no. 1 late Vilayati Lal filed three Second Appeals, being S.A. no. 72 of 2004, Vilayati Lal and others vs Dharam Pal and others; S.A. no. 73 of 2004, Vilayati Lal and others vs Shyam Sunder and others and S.A. no. 67 of 2004, Vilayati Lal and others vs Shyam Sunder Chhabra and others. All these three second appeals were heard together. Said appeals were dismissed by judgment and order dated 17.07.2007, passed by this Court. Feeling aggrieved, late Vilayati Lal preferred Special Leave to Appeal (Civil) no. 21161, 21162 and 21163 of 2007 before the Hon'ble Apex Court, which were dismissed by judgment and order dated 07.12.2007. Judgment and decree passed by the Appellate Court in three civil appeals, being C.A. no. 241 of 2001, 242 of 2001 and 253 of 2001 attained finality. 6. Petitioners Dharampal and Pankaj filed an execution application seeking execution of the judgment and decree dated 17.07.2004, being Execution Case no. 06 of 2008, Dharam Pal vs Vilayati Lal and others. On receipt of the execution application, Civil Court Amin was appointed to prepare the final decree so that the preliminary decree passed by the appellate court and which was affirmed upto to the Hon'ble Apex Court, be executed. 7. Respondent no. 1 Satish Kumar, who had filed an impleadment application being paper no. 37A and 51A in the O.S. no. 738 of 1993, filed his objection under Order 21 Rule 97 CPC before the Executing Court, stating therein, that he is the sole and absolute owner of the property in question as a Will was executed by late Smt. Lajwanti in his favour during her lifetime on 16.12.1976. Smt. Lajwanti expired on 26.09.1992. The objection filed by respondent no. 1 was registered as Misc. Case no. 04 of 2009, Satish Kumar vs Dharam Pal. Smt. Lajwanti expired on 26.09.1992. The objection filed by respondent no. 1 was registered as Misc. Case no. 04 of 2009, Satish Kumar vs Dharam Pal. It is contended by Satish Kumar that he raised construction over the said property during the life time of his grandmother and the property is recorded in his name in the Municipal Board, Rishikesh. It is also contended that he is in possession being owner of the property. It is further contended by Satish Kumar in his objection that 15-20 days back his wife informed him that Civil Court Amin came to take the possession of the property in question. The averments made by respondent no. 1 Satish Kumar in paragraph nos. 9, 10, 11, 15 and 21 of his objections are extracted hereunder: “9. That about 15 to 20 days back the applicant was informed by his wife that the civil court Amin along with some of the O.Ps. had come to the said property during the absence of the applicant and showed her some official papers and told her that the applicant should vacate the said property since the court had directed its possession to be delivered to the O.Ps. 10. That thereafter the applicant cam to Dehradun and engaged the services of Sri N.K. Sarin, Advocate, who made enquires from the court and offices andinformed the applicant that the O.Ps. no. 1 to 6 hadobtained a decree of partition in respect of the saidproperty of the applicant as well as in respect ofone other property of late Smt. Lajwanti being no. 1, Railway Road, Rishikesh, District Dehradun. 11. That the applicant further learnt that the O.Ps. no. 3 to 6 had filed a suit no. 730 of 1993 against O.Ps.no. 1, 2, 7 and 8 claiming partition of their 1/4thshare in the properties viz. No. 1, Railway Road and 61 Tilak Road, Rishikesh, District Dehradun. 15. That the applicant did not have any knowledge of the said suit, appeal or any subsequent proceedingsbefore 15-20 days back when the civil court Amincame to the property in suit and the applicant thereafter made enquiries and came to know of the whole litigation with respect to his property. 21. That it is in the interest of justice that the objections / claim of the applicant be allowed and the execution proceedings so far are they related to the property no. 61 (New no. 21. That it is in the interest of justice that the objections / claim of the applicant be allowed and the execution proceedings so far are they related to the property no. 61 (New no. 88), Tilak Road, Rishikesh, District Dehradun, be dismissed and it be declared that the decree dated 17.07.2004 of the court of the A.D.J. / F.T.C. V, Dehradun, passed in Civil Appeal nos. 241 of 2001, 242 of 2001 and 253 of 2001 (original suit no. 738 of 1993) are not binding upon the applicant. 8. Petitioners filed their objection against application filed by respondent no. 1 under Order 21 Rule 97 CPC. The Execution Court by its order dated 13.08.2010 dismissed the objection petition filed by respondents under Order 21 Rule 97 CPC. While dismissing the petition, the trial court has recorded the finding that before the trial court three Wills, allegedly executed by Smt. Lajwanti, were produced viz. Will dated 13.12.1973, 16.12.1976 and 23.01.1991. The trial court has considered Will dated 16.12.1976 as genuine Will. The Will dated 13.12.1973 and 23.01.1991 were discarded. The Execution Court has also recorded the finding that preliminary decree was passed. The contention of respondent no. 1 was considered by the Execution Court that the applicant was not a party in the original suit. The court further observed that an impleadment application was filed by the applicant, which was dismissed. The applicant Satish Kumar did not challenge the order of rejection of the impleadment application. 9. It is apt to note here that the respondent no. 1, who is claiming the rights over the suit property on the basis of Will dated 13.12.1973, did not file any suit for declaration of his alleged rights over the property in dispute, he was aggrieved that he was not impleaded asparty in the original suit no. 738 of 1993. If he was not impleaded as party in the suit then he had a right to seek declaration of his alleged rights over the suit property. But neither he challenged the order part of his impleadment application nor the judgment and decree passed in the suit. 10. Thus, Satish Kumar has the knowledge of O.S. no. 738 of 1993, Shyam Sunder Chhabra vs Vilayati Laland others, but he did not challenge the decree passed by the court in the aforesaid suit, which has attained finality. But neither he challenged the order part of his impleadment application nor the judgment and decree passed in the suit. 10. Thus, Satish Kumar has the knowledge of O.S. no. 738 of 1993, Shyam Sunder Chhabra vs Vilayati Laland others, but he did not challenge the decree passed by the court in the aforesaid suit, which has attained finality. Thus, Satish Kumar has no right to say that the judgment and decree dated 28.07.2004 is not binding upon him. The Execution Court further observed that the court cannot go beyond the decree and rejected the application by judgment and order dated 13.08.2010. 11. Feeling aggrieved, respondent no. 1 Satish Kumar preferred a Civil Appeal no. 58 of 2010, Satish Kumar vs Dharam Pal and others, stating therein, that the Civil Judge while rejecting the application under Order 21 Rule 97 CPC has committed illegality in recording the finding that application under Order 1 Rule 10 CPC has already been rejected. Apart from the aforesaid ground other grounds were also raised. The appeal was heard by Addl. District Judge, Dehradun. The Appellate Court by impugned judgment and order dated 30.11.2010 allowed the appeal and remanded the matter to the Civil Judge (S.D.) to decide the objection filed by respondent no. 1 after framing the issues in the matter. An application for impleadment was filed by Satish Kumar in the suit, which was dismissed. However, it was observed that it was the duty of the plaintiffs of O.S. no. 738 of 1993 that applicant being necessary party of the case ought to have been impleaded party defendant in that suit. Further findings have been recorded that a suit for partition only can be decided finally when all the interested parties of the suit may be impleaded. Satish Kumar was not party in the suit, therefore, the Civil Judge should have framed the issues in the matter and after recording its finding on the issues should have remanded the matter to the trial court to decide the objection filed by respondent no. 1 under Order 21 Rule 97 CPC after framing issues. Hence, present writ petition. 12. Heard learned counsel for the parties and perused the material brought on record. 13. Record of the case was summoned to verify the facts as to whether an impleadment application was filed by respondent no. 1 Satish Kumar in O.S. no. 738 of 1993, or not? Hence, present writ petition. 12. Heard learned counsel for the parties and perused the material brought on record. 13. Record of the case was summoned to verify the facts as to whether an impleadment application was filed by respondent no. 1 Satish Kumar in O.S. no. 738 of 1993, or not? Since averment has been made by respondent no. 1 that he was not aware of the judgment and decree passed in the original suit and he came to know of said fact only when his wife informed him about 20-25 days before filing of application under Order 21 Rule 97 CPC that civil court Amin came to his house to take possession over the property in dispute in an execution proceedings, then he was constrained to file objection under Order 21 Rule 97 CPC. Perusal of record of O.S. no. 738 of 1993 would reveal that an application (paper no. 37A) under Order 1Rule 10 CPC was filed by respondent no. 1 supported byaffidavit (paper no. 38A). The fact that the application was dismissed by order dated 08.10.1997 is verified from the record. It is found that the impleadment application paper no. 37A was dismissed by the trial court vide judgment and order dated 08.10.1997. 14. The Execution Court while deciding the application under Order 21 Rule 97 of CPC has recorded a categorical finding on the point raised by the respondent saying that he became the owner of the property in dispute on the strength of the Will dated 13.12.1973 executed by late Smt. Lajwanti Devi in his favour, therefore, the decree passed by the Civil Court is not binding upon him. The petition filed by the respondent could not be treated as a suit. 15. Feeling aggrieved a Regular appeal was filed by the respondent. An appeal would lie against a judgment and decree not against the findings recorded in a case. Though only a revision would lie, but as the appeal was instituted and has been decided by the Additional District Judge, who is also the competent court to hear the civil revision and appeal, if appeal has been preferred. It makes no difference as the forum of hearing the revision and the appeal is the same, but the criteria of deciding an appeal or revision is entirely different. It makes no difference as the forum of hearing the revision and the appeal is the same, but the criteria of deciding an appeal or revision is entirely different. Though instead of appeal a revision has been preferred, but it appears to this Court that the Lower Appellate Court has remanded the matter to the Execution Court to frame the issues in the matter and thereafter to decide the issues and objections filed by the respondent on merit. 16. The judgment of Lower Appellate Court is unsustainable firstly for the reason that a petition filed under Order 21 Rule 97 of CPC is not akin to a suit. Rather the objections is to be decided by the court on the pleadings and evidence raised by the objector. The trial court /Execution Court need not to frame the issues. Thus, the Lower Appellate Court has committed illegality in remanding the matter with the direction to the Execution Court to frame the issue and decide the objection. 17. Hon'ble Apex Court in the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust (1998) 3 SCC, 723, has held that it is necessary for the Court that the question raised by the resister or obstructor must have been legally raised. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution court can decide whether the question raised by a resister or obstructor legally arises between the parties and answer the same. In the present case, the question posed before the Execution Court was answered by it giving reasons. Thus, the judgment passed by the Execution Court was in the realm of the ratio laid down by the Hon'ble Apex Court in the judgment (supra). 18. Being an order passed on an application under Order 21 Rule 97 of CPC, revision would lie, but instead of revision a regular appeal was filed. The scope of deciding a regular appeal and revision is entirely different. In a regular appeal the entire matter is to be considered by the appellate court, but in a revision, the appellate court cannot act like an appellate court to consider the matter as a trial court. The scope of deciding a regular appeal and revision is entirely different. In a regular appeal the entire matter is to be considered by the appellate court, but in a revision, the appellate court cannot act like an appellate court to consider the matter as a trial court. The revisional power can be exercised in three contingencies, viz., where the subordinate court has exercised a jurisdiction not vested in it by law; or failed to exercise a jurisdiction so vested; or acted in exercise of its jurisdiction illegally or with material irregularity which has occasioned in failure of justice. But, in the present case, firstly the court below has committed illegality in entertaining the appeal instead of revision. Secondly, the lower appellate court has considered the entire matter before it and exceeded in its jurisdiction. Thus, the impugned order is interferrable on account of exercise of jurisdiction in entertaining the appeal instead of revision. Since the Execution Court has considered the points involved in the matter in detail and adjudicated the points involved in the matter as the duty cast upon the Execution Court, the lower appellate court not only exceeded in its jurisdiction, but has recorded the unwarranted findings and remanded the matter to the Execution Court. 19. Secondly, the Lower Appellate Court has considered the appeal as against the judgment and decree passed by the trial court, whereof the appeal if could be considered it was against an order adjudicating the rights between respondent no. 1 and petitioner on an objection filed by the respondent under Order 21 Rule 97 of CPC. In exercise of revisional jurisdiction, the revisional or Lower Appellate Court should embark upon all the facts. The question of law and propriety of order impugned should be considered. But in the present case, the Lower Appellate Court has exceeded in its jurisdiction in considering the objection filed by respondent no. 1 as a regular proceedings of suit and remanded the matter on account of non-framing of issues. However, the question involved or the question/point involved in the matter is addressed by the court is the sufficient compliance as has been held by Hon'ble Apex Court in Sayeda Akhtar vs Abdul Ahad (2003) 7 SCC 52 . 1 as a regular proceedings of suit and remanded the matter on account of non-framing of issues. However, the question involved or the question/point involved in the matter is addressed by the court is the sufficient compliance as has been held by Hon'ble Apex Court in Sayeda Akhtar vs Abdul Ahad (2003) 7 SCC 52 . Paragraph 11 of said judgment is extracted hereunder: “Thereafter the court of appeal considered the pleadings of the parties as also the materials brought on record by the parties to the suit on the said issue and held: “The evidence produced by the respondent proves that the appellant had created nuisance because quarrelling falls under the mischief of nuisance." 20. Thirdly the Execution Court has recorded the finding that the objector who filed the objection with the assertion that he was not aware of the judgment and decree passed by the trial court against his father and in fact he came to know when civil court Amin reached on the spot and asked his wife to hand over the possession, prior to that he was not aware. Thus, the ground taken by him that he was not aware of the decree is absolutely false. This fact is established on record that respondent no. 1 filed the impleadment application. This fact was also elaborately discussed by the Execution Court, but the Lower Appellate Court did not consider this valuable fact and evidence available in this regard and in a cryptic manner allowed the appeal on misconception of law that the Execution Court should have framed the issues and then addressed itself. 21. This fact has also not been considered by the Lower Appellate Court that the respondent objector has agitated to plead his case by filing objection supported by an affidavit. Similarly, the petitioners have filed the objection to the application under Order 21 Rule 97 of CPC supported by an affidavit. Thereafter the rejoinder affidavit was filed. Therefore, the respondent no. 1 did not press before the Execution Court that the issues be framed in the matter and after framing the issues he may be permitted to adduce the evidence and the matter be decided thereafter. Thus, there was no occasion for the Lower Appellate Court to go beyond the procedure prescribed in law as well as adopted by the parties. 22. The suit was filed way back in the year 1993. Thus, there was no occasion for the Lower Appellate Court to go beyond the procedure prescribed in law as well as adopted by the parties. 22. The suit was filed way back in the year 1993. The first generation which instituted the suit could not taste the fruit of the decree passed in their favour and now the second generation is litigating for the same. Not only this, the respondent, who has filed the objections has not come with clean hands as respondent no. 1 has concealed the material fact that he came to know 20-25 days that civil court Amin came to his house to take possession over the property in dispute in an execution proceedings before filing of the objections by him under Order 21 Rule 97 of PCP, though, respondent no. 1 filed an application in the original suit no. 738 of 1993, which was dismissed. Thus, respondent no. 1 has concealed the material fact from the Court and tried to take undue advantage so he may continue in possession over the property in dispute. Besides this, respondent no.1 who had filed the impleadment application in original suit in which his father Vilayati Lal was party and the alleged Will dated 13.12.1973 was relied upon by the respondent no.1 and his father, the trial court elaborately considered the Will. In the judgment and decree passed by the appellate court, the appellate court has elaborately discussed and found that the Will dated 13.12.1973 is not genuine and the Will dated 13.12.1973 and 23.01.1991 were discarded. The order rejecting the impleadment application of the respondent no.1 was not challenged and he kept mum thereafter. However, his father Vilayati Lal contested the suit upto the Hon'ble Apex Court but he lost the case. After the death of respondent no.1 father, he derived the rights of the properties belonged to Late Vilayati Lal. Respondent is also bound by the decree passed by his father. Thus, he has got no right to resist the decree. 23. Hon'ble Apex Court in the case of Maria Margarida Sequeira Fernandes vs Erasmo Jack De Sequeira (Dead) through LRs. (2012) 5 SCC, 370. has elaborately discussed that now-a-days the tendency of raising false claims and false defences has increased and held that raising of false claims and defence should be curbed by the courts. Paragraph nos. 81 and 82 of said judgment are extracted hereunder: “81. (2012) 5 SCC, 370. has elaborately discussed that now-a-days the tendency of raising false claims and false defences has increased and held that raising of false claims and defence should be curbed by the courts. Paragraph nos. 81 and 82 of said judgment are extracted hereunder: “81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent. 82. This Court in a recent judgment in Ramrameshwari Devi vs Nirmala Devi, (2011) 8 SCC 249 aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or notice for uncalled for litigation. It is a mater of common experience that the court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimized if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings." 24. The Hon'ble Apex Court in Ravinder Kaur vs Ashok Kumar (2003) 8 SCC, 289, while dealing in the matter of execution and petition filed against the execution application under Section 47 and Order 21 Rule 58 of CPC and having considered that a false claim in the guise of petition should be curbed with stern hands and also deprecated the practice of remanding the matter to the court below. 25. 25. Thus, in view of the above, this court is of the considered view that the trial court had rightly rejected the application filed by the respondent no. 1 under Order 21 Rule 97 of CPC giving its reasons and arriving to the conclusion that the application under Order 21 Rule 97 of CPC is misconceived and respondent no 1 had participated in O.S. no. 738 of 1993, but the Lower Appellate Court without considering the fact that the appeal is not maintainable and there could be a revision at the most at the behest of respondent no. 1, not only entertained the appeal, but allowed the appeal without setting aside the findings recorded by the Execution Court and remanded the matter. 26. In view of the findings recorded above, this court is of the view that the lower appellate court has illegally exercised the jurisdiction of appeal instead of revision and further committed illegality in remanding the matter to the trial court, whereas there is no illegality, perversity or jurisdictional error in the order passed by the Execution Court. By means of impugned order miscarriage of justice has been done with the petitioners as they have been deprived of non-execution of the decree passed long back in their favour without any justifiable reason. Both the writ petitions are, accordingly, allowed. Impugned order is set aside. The order passed by the Execution Court is restored.