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2021 DIGILAW 361 (KER)

Ajimon v. Santhamma P. K

2021-03-29

N.ANIL KUMAR

body2021
JUDGMENT : This R.S.A. is directed against the judgment and decree in A.S.No.03/2019 dated 9.2.2021 on the file of the Additional District Court-I, Kalpetta, Wayanad (hereinafter referred to as 'the first appellate court') pursuant to the order dated 23.1.2019 in O.S.No.25/2016 on the file of the Sub Court, Sulthanbathery (hereinafter referred to as 'the trial court'). 2. The appellants are supplemental defendants 8 and 9 in a suit for partition of 5 items of properties on the basis that they belonged to one Kunhan and was inherited by his children, the plaintiffs and defendants respectively. The plaintiffs, the defendants 1 to 4 and deceased Sukumaran are the children of late Kunhan born in his wedlock with Kalyani. The defendants 6 and 7 are the children born to late Sukumaran and defendant No.5 is the widow of late Sukumaran. The defendants 1 and 5 to 7 contended that Kunhan had another wife, namely, Gouri and had two children. Without admitting the relationship, by way of abundant caution, the plaintiff impleaded supplemental defendant Nos.8 and 9 to resolve the dispute finally. Upon impleadment, the defendants 8 and 9 contended that Kunhan had executed a Will No.56/1994 of the SRO, Panamaram bequeathing item Nos.1, 2, 3 and 5 in the plaint B schedule to additional defendants 8 and 9. The additional defendants 8 and 9 contended before the trial court that since the plaintiffs are not admitting them as co-owners, a suit for partition against them is not maintainable. The trial court framed an issue regarding the maintainability of the suit. As per order dated 23.1.2019, the trial court held that the suit is maintainable even against the defendants 8 and 9. The said order is challenged before the first appellate court. By the judgment dated 9.2.2021, the first appellate court held that an appeal is not maintainable from a finding of the trial court. Accordingly, the appeal was dismissed by the first appellate court. Hence, this R.S.A. has been preferred. For the sake of clarity, the parties are hereinafter referred to as the plaintiffs and defendants according to their status in the trial court unless otherwise stated. 3. Based on the contention raised by the defendants, the trial court framed the following issues:- i) Is not the suit maintainable on the ground of objection raised by supplemental defendant Nos.8 and 9. (ii) Reliefs and costs. 4. 3. Based on the contention raised by the defendants, the trial court framed the following issues:- i) Is not the suit maintainable on the ground of objection raised by supplemental defendant Nos.8 and 9. (ii) Reliefs and costs. 4. Sri.B.G.Bhaskar, the learned counsel for the appellants would contend that no suit for partition will lie against the defendants 8 and 9. According to the learned counsel, the defendants 8 and 9 have been in possession of plaint schedule item Nos.1 to 3 and 5 ever since the death of Kunhan as the legatees under the Will. Elaborating on the submission, the learned counsel for the appellants contends that in case the plaintiffs desire partition of plaint item Nos.1 to 3 and 5 based on the alleged claim of inheritance under Kunhan, their remedy is to get recovery of those items from the possession of the defendants 8 and 9 before seeking suit for partition. It is further contended that the trial court committed a patent illegality in giving an option to the plaintiffs to amend the plaint by seeking the relief of recovery of possession from the defendants 8 and 9. The learned counsel for the appellants further contends that the court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. 5. The learned counsel for the appellants further contended that an order affecting the rights and liabilities of the defendants 8 and 9 is perfectly maintainable before the first appellate court and an appeal can be entertained without a certified copy of the decree treating the impugned order as a decree as defined under Section 2(2) of the C.P.C. The learned counsel for the appellants relied on the following decisions in support of his contentions on the merits:- 1. Kasi Alias Alagappa Chettiar & others v. RM.A.RM.V.Ramanathan Chettiar alias Srinivasan Chettiar through his next friend, AV.PL.CT.Ramanathan Chettiar & another [ (1947) 2 MLJ 523 ]; 2. Venkata Reddi & others v. Pothi Reddi [(1963) AIR (SC) 992]; 3. Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi [(1976) AIR (Gujarat) 152]; 4. Janardhanan v. Chandramathy [1996 KHC 356]; 5. Madhukar & others v. Sangram & others [2001 KHC 1095]; 6. H.K.N.Swami v. Irshad Basith [ (2005) 10 SCC 243 ]. 6. Venkata Reddi & others v. Pothi Reddi [(1963) AIR (SC) 992]; 3. Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi [(1976) AIR (Gujarat) 152]; 4. Janardhanan v. Chandramathy [1996 KHC 356]; 5. Madhukar & others v. Sangram & others [2001 KHC 1095]; 6. H.K.N.Swami v. Irshad Basith [ (2005) 10 SCC 243 ]. 6. Against a decree, as defined under Section 2(2) of the Civil Procedure Code, 1908 (hereinafter referred to as 'the C.P.C.') regular first appeal is provided under Section 96 of the C.P.C. 7. Sections 2(2), 2(9) and 96 of the C.P.C. are quoted below for reference :- “Section 2 xxx (2)-"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. xxx xxx xxx (9) "judgment” means the statement given by the Judge on the grounds of a decree or order. Section 96 "Appeal from original decree"- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.” 8. Normally, suit concludes by pronouncement of a judgment under Order XX Rule 1 of C.P.C. Thereafter, by virtue of Order XX Rules 6 and 7, the decree shall be drawn up which shall agree and be in accordance with the judgment and shall be signed by the Judge on being satisfied about its correctness as such. Normally, suit concludes by pronouncement of a judgment under Order XX Rule 1 of C.P.C. Thereafter, by virtue of Order XX Rules 6 and 7, the decree shall be drawn up which shall agree and be in accordance with the judgment and shall be signed by the Judge on being satisfied about its correctness as such. Order XX Rule 6, 6A and 7 of the C.P.C. read as follows:- “Order XX Rule 6-."Contents of decree"- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. Order XX Rule 6A-Preparation of decree- (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; (2) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy may be available to the party by the court shall for the purposes of rule 1 of Order XLI, be treated as the decree. But as soon as the decree is strong, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. Order XX Rule 7-"Date of decree"-The decree shall bear the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.” 9. The first question arising for consideration is as to whether the appeal is maintainable. One of the contentions taken by the defendants 8 and 9 is that the suit is bad for mis-joinder of parties. The first question arising for consideration is as to whether the appeal is maintainable. One of the contentions taken by the defendants 8 and 9 is that the suit is bad for mis-joinder of parties. As per Order I Rule 9 of C.P.C., no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Rule further provides that nothing in this Rule shall apply to non-joinder of a necessary party. The trial court entered a finding that the dispute is regarding the assets of late Kunhan and all the parties claiming under him are before the trial court as parties. Hence, the trial court is of the considered view that the suit is maintainable as against the defendants 8 and 9 and their presence is absolutely necessary to adjudicate the real controversies between the parties. The defendants 8 and 9 filed an application to decide the question of maintainability as a preliminary issue as contemplated under Order XIV Rule 2(2) of C.P.C. In view of the application filed by the defendants 8 and 9 as I.A.No.326/2017, the trial court was compelled to decide the first issue as a preliminary issue as per the scheme of the C.P.C. and entered a finding thereon. The trial court held that the suit is maintainable and decided to proceed further with the trial of the case. It is thus clear that the finding on issue No.1 is not sufficient to dispose of the suit. The suit is yet to be decided on the merits. 10. In Smt.Ganga Bai v. Vijay Kumar & others [ AIR 1974 SC 1126 ], the Apex Court considered the scope of appeal under Section 96(1) of the C.P.C in paragraphs 16 and 17 of the judgment. The paragraphs 16 and 17 read as follows:- “16. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause (i) of this Section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reasons of clause (i) of Section 104(1) forms a part of that Section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof. Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction. 17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No.72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court.” 11. In the light of the dictum laid down in Smt.Ganga Bai's case (supra) this Court is of the view that the finding challenged in this appeal is not amenable to appeal under Section 96 or under Section 104 of the C.P.C. The learned counsel for the appellants contended that Order XLI Rule 1 as amended with effect from 1.7.2002 enable the appellants to prefer an appeal against the judgment without submitting a copy of the decree. Even assuming for arguments sake that an appeal is maintainable still the finding rendered by the trial court cannot be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties not affecting the merits of the case or the jurisdiction of the court. In the case on hand, the trial court held that the suit is maintainable. The finding can be challenged on merits after the trial of the case. In case the trial court held that the suit is not maintainable, certainly an appeal is maintainable. The position is different in this case. The finding on issue No.1 can be challenged in appeal after pronouncing the judgment and decree in the case. 12. The first appellate court rightly held that an appeal is not maintainable. The condition precedent for deciding a second appeal is the existence of a substantial question of law. The first question canvassed before this Court is touching the definition of 'decree' contending that the appeal is maintainable against a finding of the trial court. This question is not at all a question of law, far less any substantial question of law involved in the case. A question of law having a material bearing on the decision of the case will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. It is settled principle of law that a finding which is not a decree or passed under the Rule as per the scheme of the C.P.C. is not appealable. The trial court has drawn right inferences from admitted facts by applying the law relating to suit for partition reasonably. 13. Judged by the above standards, this Court is of the view that the legal precedents cited by the learned counsel for the appellants are not applicable in the case on hand. The trial court held that the presence of defendants 8 and 9 are necessary parties to decide the issues before the trial court. The said finding is not perverse. The first appellate court examined the finding on record at length and arrived at a logical conclusion that the finding is not appealable. The conclusions arrived at by the first appellate court based on binding precedents do not warrant interference in a second appeal. The said finding is not perverse. The first appellate court examined the finding on record at length and arrived at a logical conclusion that the finding is not appealable. The conclusions arrived at by the first appellate court based on binding precedents do not warrant interference in a second appeal. Resultantly, the R.S.A. stands dismissed without prejudice to challenge the finding on issue No.1 in an appeal against the judgment and decree in case such an occasion arises for consideration. There will be no order as to costs. Pending applications, if any, stand disposed of.