Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 255 (UTT)

Ram Babu Meharotra v. Harnam Singh

2023-04-04

SHARAD KUMAR SHARMA

body2023
ORDER : Sharad Kumar Sharma, J. With the prior consent of the learned counsels for the parties as given on 17.03.2023, the Second Appeal has been placed today, though being public Holiday, they agreed to argue on merits of the Second Appeal. 2. Consequently, the Second Appeal has been notified to be listed on the orders of the Hon’ble The Chief Justice. 3. This Second Appeal carries a very chequered history. The precise chronological dates and events are given hereunder :- i. In 1967, a Suit was filed for recovery of money, which was due to the plaintiff Bank, on a financial assistance which was extended to the defendants to the Suit. ii. On 21st May, 1966, the Suit No.17 of 1966, Nainital Bank Ltd. Vs. Ram Babu Mehrotra, stood instituted before the Court of Addl. Civil Judge, Nainital. iii. On 9th June, 1966, the aforesaid Suit for recovery of money was decreed. iv. On 17th April, 1973, the Execution Case No. 19 of 1967, was registered before the Court of Addl. Civil Judge, Nainital, for executing the decree of 9th June, 1966. v. Form IV-60 was issued in execution case under Order 21 Rule 66 in a reference to the proceedings under Section 73 of the CPC. vi. A publication of the auction notice by the Government approved auctioneer was undertaken. vii. On 19th September, 1968, the auction sale notice was published in a local newspaper by the Government Approved Auctioneer called as “Khabar Sagar”. viii. Auction proclamation was made on 9th February, 1973, and auction was held on 10th July, 1973. ix. On 31st July, 1974, a Misc. Civil Appeal No. 39 of 1973, was allowed ex parte, as against the decree of 9th June, 1966. Consequently, the sale dated 10.07.1973 was set aside by the Court of District Judge. x. Being an ex parte decree, a restoration was filed under Order 41 Rule 21 of the CPC, to set aside the ex parte order dated 31st July, 1974, passed in Civil Appeal No.39 of 1973. xi. On 24th May, 1975, the ex parte decree dated 31st July, 1974 was set aside and the Misc. Civil Appeal No. 39 of 1973, was restored to its original number. xii. Misc. Civil Appeal No. 39 of 1973, Harnam Singh Vs. Ram Babu Mehrotra, was decided on merits. The judgment of Addl. xi. On 24th May, 1975, the ex parte decree dated 31st July, 1974 was set aside and the Misc. Civil Appeal No. 39 of 1973, was restored to its original number. xii. Misc. Civil Appeal No. 39 of 1973, Harnam Singh Vs. Ram Babu Mehrotra, was decided on merits. The judgment of Addl. Civil Judge dated 9th May, 1973, was set aside and the sale deed of 10th March, 1973 was confirmed. xiii. On 31st October, 1975, Justice M.P. Saxena, confirmed the sale and directed the dispossession of the appellants from the disputed property, to be handed over to the auction purchaser. xiv. On 22nd July, 1980, on the basis of the confirmation of sale dated 10th March, 1973, Nagar Palika, Haldwani, ordered mutation of the name of auction purchaser Harnam Singh, and he was also assessed for payment of municipal taxes. xv. On 6th July, 1987, the Misc. Second Appeal was preferred before the High Court of Judicature at Allahabad and the same was dismissed thereby confirming the judgement of Executing Court. xvi. On 5th February, 1988, a review was filed by the appellant, being Review No. 11 of 1987, which remained pending. xvii. In 2003, the case was transferred from Allahabad High Court on the directions of the Hon’ble the Chief Justice of High Court of Judicature at Allahabad as per Section 35 of the Reorganization Act. xviii. On transfer, on 28th April, 2006, notices were issued to the respondents and it was informed in the office report that appellant No.2, has died and the service on respondent Nos. 1/1 to 1/5 and respondent Nos. 1 and 2 was found sufficient. xix. On 9th June, 2006, the Second Appeal was dismissed for want of prosecution by this High Court. xx. After ten years, the Restoration Application No. 781 of 2016, was filed to recall the order dated 9th June, 2006. xxi. On 14th May, 2018, the Coordinate Bench passed an order, that if the substitution is not filed within time i.e. two weeks as given, the Second Appeal would stand dismissed without reference to the Bench, as no substitution was filed because Harnam Singh had died in 1999 till the matter was taken up on 14th May, 2018. xxii. xxi. On 14th May, 2018, the Coordinate Bench passed an order, that if the substitution is not filed within time i.e. two weeks as given, the Second Appeal would stand dismissed without reference to the Bench, as no substitution was filed because Harnam Singh had died in 1999 till the matter was taken up on 14th May, 2018. xxii. On 29th May, 2018, the Second Appeal was dismissed due to non compliance of the order dated 14th May, 2018, and the restoration application, seeking recall of the order dated 9th June, 2006, was also dismissed. xxiii. It was thereafter that on 18th June, 2018, the certified copy of the order dated 29th May, 2018, was issued by the Registry of this Court. xxiv. On 28th June, 2018, the information of dismissal of the Second Appeal on 29th May, 2018, was sent to the District Judge, Nainital, vide Letter No.7558/27/6/18. xxv. On 17th August, 2021, i.e. almost after three years, the recall was filed seeking recall of the order dated 14th May, 2018, without seeking of the recall of the order dated 29th May, 2018, actually dismissing the Appeal itself in default in compliance of the order dated 14th May, 2018. 4. The respondent No.2, in the present Second Appeal is a decree holder in a Suit, being Suit for the recovery money due to be paid, by the predecessors of the present appellants in the Suit was instituted as back as on 21.05.1966 being Suit No.17 of 1966. The Suit stood decreed and the present appellants and their predecessors were held to be the judgment debtors vide judgment dated 09.06.1966. 5. Seeking execution of the decree, the Decree Holder Nainital Bank filed a Civil Execution No.19 of 1967, Nainital Bank Ltd. Vs. Ram Babu and others of the decree rendered on 09.06.1966. 6. As a consequence of the judgment and decree of 09/09/1966, the property was put to auction by a government auctioneer after notifying the same in the 24th Edition of Local Newspaper on 19.09.1968, the auction was held as per the provisions contained under Order 21 of the CPC on 10th March, 1973. In the auction, which proceeded, which was thus held as many as six bidders participated in the auction and later on, late Mr. In the auction, which proceeded, which was thus held as many as six bidders participated in the auction and later on, late Mr. Harnam Singh, the opposite party No.1 herein to the Second Appeal was declared as to be a successful bidder in an auction proceeding, which was held on 13th March, 1973. 7. Alleging thereto be certain irregularities in conduct of auction proceedings, the Second Appeal was preferred on, being Execution Second Appeal No. 1670 of 1975, being aggrieved as against the judgment and decree of District Judge, Kumaon, as it was rendered in Misc. Civil Appeal No. 39 of 1973, Ram Babu Meharotra Vs. Harnam Singh and others. As against the said judgment and decree of 09.06.1966, which was having its birth from the Suit No.17 of 1996, which was instituted by respondent No.2, for recovery of amount as back as in 1966, the Execution Second Appeal No. 1670 of 1975, Ram Babu Mehrotra Vs. Harnam Singh and others, was decided by the High Court of Judicature at Allahabad vide its judgment of 6th July, 1987, whereby, the Allahabad High Court vide its judgment of 6th July, 1987, had dismissed the Appeal of the judgement debtors and thereby, apart from affirming the judgment and decree rendered in the Suit for recovery of money filed by the decree holder respondent No.2, Bank, has also affirmed the auction sale made by the government auctioneer Thakur Gopal Singh Rawat on 13th March, 1973. 8. It is being aggrieved against the judgment of 6th July, 1987, it was on 8th August, 1987, a Review Application was preferred under Order 47 Rule 1 of the CPC to be read with Section 114 of the CPC, being Review Application No.11 of 1987, as it stood filed before the Allahabad High Court on 1st September, 1987. The Review Application, thus filed by appellants remained pending, and there were various phases of litigation which were carried during the pendency of the Review Application, but it was not decided on merits till the State was created vide the Notification of Govt. of India. 9. The State was notified to be created under the provisions of the U.P. Reorganisation Act, 2000, as it was published in the Gazette Notification, after the Presidential assent as given on 25th August, 2000, by Notification No. 37 dated 25th August, 2000. 10. of India. 9. The State was notified to be created under the provisions of the U.P. Reorganisation Act, 2000, as it was published in the Gazette Notification, after the Presidential assent as given on 25th August, 2000, by Notification No. 37 dated 25th August, 2000. 10. The learned counsel for the appellants, had argued that, since at the stage when the State was created, the principal lis of the Second Appeal it already stood decided by the judgment of 6th July, 1987, for which, a review was preferred on 1st September, 1987, since being a review under Section 114 to be read with Order 47 Rule 1 of the CPC, it could not have been transferred to the State of Uttarakhand in view of the embargo created by the provisions contained under Section 35 of the Reorganisation Act. Section 35 of the U.P. Reorganisation Act, 2000, the aforesaid provision is itself required to be extracted hereunder. The same is extracted hereunder :- “35. Transfer of proceedings from Allahabad High Court to Uttaranchal High Court. - (1) Except as hereinafter provided, the High Court at Allahabad shall, as from the appointed day, have no jurisdiction in respect of the transferred territory. (2) Such proceedings pending in the High Court at Allahabad immediately before the appointed day as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances, to be proceedings which ought to be heard and decided by the High Court of Uttaranchal shall, as soon as may be after such certification, be transferred to the High Court of Uttaranchal. (3) Notwithstanding anything contained in subsections (1) and (2) of this section or in section 28, but save as hereinafter provided, the High Court at Allahabad shall have, and the High Court of Uttaranchal shall not have, jurisdiction to entertain, he r or dispose of appeals, applications for leave to the Supreme Court, applications for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court at Allahabad before the appointed day: Provided that if after any such proceedings have been entertained by the High Court at Allahabad, it appears to the Chief Justice of that High Court that they ought to be transferred to the High Court of Uttaranchal, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly. (4) Any order made by the High Court at Allahabad- (a) before the appointed day, in any proceedings transferred to the High Court of Uttaranchal by virtue of sub- section (2), or (b) in any proceedings with respect to which the High Court at Allahabad retains jurisdiction by virtue of sub- section (3), shall for all purposes have effect, not only as an order of the High Court at Allahabad, but also as an order made by the High Court of Uttaranchal.” 11. In order to answer the argument which had been extended by the learned counsel for the review applicants, the appellants, herein, to meet out their argument, that the Second Appeal could not have been transferred to this Court owing to the embargo created by Section 35 of the Act, is being answered against them in the light of the provisions contained under Sub-section (3) of Section 35 of the Act, which has been highlighted above. 12. The provision contained under Sub-section (3) of Section 35, is not an absolute provision, which creates a bar of transferring of any proceeding to the High Court of Uttarakhand on its creation with the enforcement of the Reorganization Act, for the reason being that, the proviso appended to Sub-section (3) of Section 35 provides, it carves out an exception, that where the Chief Justice of High Court of Judicature at Allahabad thinks that the matter ought to have been transferred to the High Court of Uttarakhand, he shall by an order, transfer the proceedings to the High Court accordingly. Meaning thereby, the transfer of a pending proceeding, which was otherwise barred under Section 35 of the Reorganization Act, for example, review application or contempt proceedings could still be opened to be transferred by the Chief Justice of Allahabad High Court under the proviso to Sub-section (3) of Section 35. 13. In order to answer the argument, the reference to the relevant extracts of ordersheet becomes relevant. The records of Second Appeal was received by this Court and the same stood transferred before this Court on 17th May, 2003, and on its transfer, the notices were issued to the parties on 28th April, 2006, and there is an office report of 17th May, 2006, that some of the parties have received the notices and some of them were reported to have died. But however, the Appeal was taken up before the Coordinate Bench on 9th June, 2006, and the same was dismissed for want of prosecution (this aspect pertaining to the impact of dismissal of the Second Appeal for want of prosecution would be dealt with hereinafter). 14. The ordersheet shows that the High Court of Uttarakhand, being conscious of the provisions contained under Section 35 of the Reorganization Act, with regard to the transfer of Review Petition No. 11 of 1987, in Second Appeal No. 1670 of 1975, Ram Babu Meharotra and others Vs. Harnam Singh and others, sought a clarification from the High Court of Judicature at Allahabad, vide its letter dated 16th January, 2023. The said letter was responded back by the Registry of the Allahabad High Court vide its letter No. 1942/classification/23 dated 9th February, 2023, wherein, the following observations were made :- “with regard to above, this is to inform that the file of SA No.1670 of 1975: Shri Ram Babu Malhotra and Ors. Vs Shri Harnam Singh and Anr. (Decided) with LCR was received by the staff of Uttarakhand on 11.10.2001 along with bunch of other files from this Hon’ble Court, vide order dated 19.09.2001 of Hon’ble the Chief Justice, High Court of Judicature at Allahabad.” 15. Vs Shri Harnam Singh and Anr. (Decided) with LCR was received by the staff of Uttarakhand on 11.10.2001 along with bunch of other files from this Hon’ble Court, vide order dated 19.09.2001 of Hon’ble the Chief Justice, High Court of Judicature at Allahabad.” 15. As per the information imparted by the Registrar General of High Court of Judicature of Allahabad, it was specifically remarked, that the records of the Second Appeal No. 1670 of 1975, along with the Review Petition has been transferred to High Court of Uttarakhand, as per the directives issued by the Chief Justice of High Court of Judicature at Allahabad vide its order of 19th September, 2001. This information imparted by the Registry of Allahabad High Court, would be deemed to be well within the ambit of the proviso to Sub-section (3) of Section 35 of the Act, and since in the absence of there being any challenge given to it, the transfer of the Second Appeal, along with the records of the Review before this Court for its consideration was not in violation of the provisions contained under Section 35, as it has been attempted to be argued. 16. Thus this plea taken by the learned Counsel for the applicants about the implication of Sub-section (3) of Section 35 of the Act, is not acceptable by this Court and is overruled and consequently would stand rejected. 17. There is another logic, that if the literal meaning of review is taken into consideration in a proceeding, it is in the nature a trial of a previously decided issue between the parties, which is brought into Court again, for its reconsideration on some of the aspects, which have got semblance and bearing with regard to the apparent error committed by the Court. The expression “review” as it has been literally denoted from the excerpts of Law Lexicon, the same has been decided in the context of what implications with the word “review” would have in the light of the judgments of 1990 (Supp) SCC 420, Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal, as well as that of the judgment reported in JT 1993 (5) SC 27, Nagaraj Vs. Central Government Industrial Tribunal, as well as that of the judgment reported in JT 1993 (5) SC 27, Nagaraj Vs. State of Karnataka, where the expression “review” has been dealt with by the Hon’ble Apex Court in the following manner :- “The expression “review” is used in two senses : (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of record. The Supreme Court has further held that, when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be correct ex debeito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. The principle that the power of review must be conferred by statute either specially or by necessary implication is inapplicable to decisions of Judicial Tribunal which is supposed to do complete justice to the parties before it.” 18. In fact, rather the analysis of the interpretation given by the two judgments is from the perspective that the legislative intent of the review was to correct inadvertent apparent error committed by the Tribunal or the Court in order to meet out the implications of a Latin proverb ex debeito justitiae. In fact, that means it is the Court, which had passed an order and which has got an inherent jurisdiction vested, which is created by the statute to review its own judgment, on any apparent error being pointed out by the party aggrieved by the judgement rendered by the Court which is being sought to be reviewed. In fact, the implication of review has been widely determined by the Hon’ble Punjab and Haryana High Court in AIR 1958 PUN 63, in the matters of Parduman Singh Vs. State of Punjab, wherein, it has been observed that the review means a judicial reexamination in case on certain specified or prescribed circumstances of an apparent error. 19. There could be yet another analytical analysis of the terms “review” in the perspective of its judicial interpretation, in the context of the present case 20. State of Punjab, wherein, it has been observed that the review means a judicial reexamination in case on certain specified or prescribed circumstances of an apparent error. 19. There could be yet another analytical analysis of the terms “review” in the perspective of its judicial interpretation, in the context of the present case 20. The tenacity of argument of the learned counsel for the applicant, that in fact, the review has to be made by the Court itself, who has passed an order, has had to be interpreted otherwise because in the matter reported in AIR 1952 Pepsu 82, Kastar Singh Surjan Singh Vs. Custodian Muslim Evacuee Property Pepsu, it has been observed that review of own order does not mean particularly a person passing an order is the one who can only review its orders. The said rectification of a judicial review is different from the scope of review but some time they may overlap and the two specific independent powers which have been conferred upon the authority both by the Court which can be exercised for reviewing a judgment. 21. This Court is of the view, that the basic intent that the review has to be placed before the same Court, who has passed the judgment is only for the purposes to enable the Court, who has rendered the judgment to scrutinize the apparent error, which has been committed by the Court itself, so that it may be corrected on the same being pointed out by the same Judge passing the judgment, on the grounds taken in the review application. The said basic underlying objective that the review has to be heard by the same Judge, cannot be pressed into now at this stage after more than two decades of creation of State of Uttarakhand, seeking a review of the judgment rendered by the Allahabad High Court and that too on 6th July, 1987, because even placement of the review application before the same Court, would not have met the objective of review in the absence of the Judge concerned now being available before the Allahabad High Court, whose judgment is to be reviewed and hence, pressing upon review before this Court, will hardly have any bearing, because now it has to be analysed by this Court, as to what is the apparent error committed by the Court, but that itself may not entail consideration at this stage. 22. Because owing to the fact that when the Appeal stood transferred and it subsequently stood dismissed on 9th June, 2006, what had happened is that the present appellants have filed a Restoration Application No. 781 of 2016, which was a defective restoration as having preferred after almost more than ten years of dismissal in default, as it was preferred on 17th November, 2016. 23. It is that during its pendency, it was brought to the notice of the Court, that the auction purchaser Harnam Singh had met with the sad demise on 14th May, 1999, and the said information imparted on 14th May, 2018, would be deemed to be an information under Order 22 Rule 10 of the CPC. But still, failure on part of the appellants to substitute the heirs of late Harnam Singh, the auction purchaser would amount to be an automatic dismissal of the Second Appeal under Order 22 Rule 9 of the CPC. 24. But be that as it may. The Coordinate Bench on 14th May, 2018, had observed, that since the factum of death of the auction purchaser has already been brought on record, and no substitution has been filed within the prescribed period of limitation, the Court observed that if the appellant does not file a Substitution Application, within two weeks, his Restoration Application as preferred on 17th November, 2016, would be deemed to be dismissed without even reference to Bench. 25. Despite of the order of 14th May, 2018, the Substitution Application was not filed within time. Consequently, the Court passed an order whereby the Restoration Application has been dismissed on 29th May, 2018. The relevant part is extracted hereunder :- “S.A. No. 1565 of 2001 (1670/1975) Registrar (Judicial) May kindly like to peruse the Hon’ble Court’s order dated 14.05.2018, that – “.... Learned senior counsel for respondent submits that respondent no.1-Shri Harnam Singh has died on 14.04.1999 and further submitted that the appeal has already been abated. Learned counsel for the appellant seeks and is granted two weeks’ time to verify this fact and do needful. In case, substitution application is not filed within two weeks, the restoration application shall stand dismiss without reference to the Court. List thereafter.” In this regard, it is submitted that no Substitution Application has been filed by the Counsel for the Appellant till date. Further, Misc. Appl. In case, substitution application is not filed within two weeks, the restoration application shall stand dismiss without reference to the Court. List thereafter.” In this regard, it is submitted that no Substitution Application has been filed by the Counsel for the Appellant till date. Further, Misc. Appl. bearing number (CLMA 7203/2018) alongwith Vakalatnama has been filed by Mr. Subhang Dobhal, Advocate, on behalf of the Resp.No.1, praying therein to take notice of the facts regarding the death of Resp.No.1. Submitted, for kind perusal and orders. Section Officer 29.05.2018 Perused the office report. Office has reported that no Substitution application has been filed till date, whereas, Hon’ble Court vie order dated 14.05.2018 had granted two weeks time to file the Substitution application, with further direction that “In case, substitution application is not filed within two weeks, the restoration application shall stands dismiss without reference to the Court.” As Substitution application has not been filed within the period prescribed by the Hon’ble Court, restoration application stand dismiss, as directed by the Hon’ble Court. 29.05.2018 (A.K. Sangal) Registrar (Judicial)” 26. Meaning thereby, the effect of the order of 29th May, 2018, as extracted above would be that of the deeming dismissal of the Second Appeal by an order passed by the Coordinate Bench on 14th May, 2018, would stand merged with the order of dismissal of Restoration Application by an order of 29th May, 2018. Not even that, the certified copy of this order too was issued on 18.06.2018, and the information of this order was sent to District Judge, Nainital, by the Registry of this Court on 28.06.2018. 27. It is not even that also, subsequently, the appellants filed a Recall Application, being Recall Application No. 11840 of 2021, by filing the same before the Registry on 17th August, 2021. We may not exclude the fact that the knowledge of death was attributed to the appellants by an order of 14th May, 2018. 27. It is not even that also, subsequently, the appellants filed a Recall Application, being Recall Application No. 11840 of 2021, by filing the same before the Registry on 17th August, 2021. We may not exclude the fact that the knowledge of death was attributed to the appellants by an order of 14th May, 2018. Filing a recall by the appellants on 17th August, 2021, would obviously result into a rational conclusion, that the appellants had the knowledge of death and yet he has chosen to file a recall application at a much belated stage with a delay of 1154 days, which was also sought to be condoned and in the Restoration Application thus preferred, the learned counsel for the appellants had modulated the prayer in the Recall Application to the following effect : “It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to restore the present appeal to its original number after recalling the judgment dated 14-05-2018, and to hear the present appeal on its own merits, failing which the applicant will face irreparable loss and injury. And/or any order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 28. Filing of the Recall application on 17th August, 2021, by choosing to seek a recall of the order of 14th May, 2018, would amount to, that the appellant has voluntarily given away and waived of his rights to put a challenge to the order dated 29th May, 2018, by virtue of which, his Recall Application dated 17th November, 2016, was actually stood dismissed by an order dated 29th May, 2018. Hence, it would amount to be a waiver of his rights, when the applicant has filed a Recall Application in 2021, limiting his relief to put a challenge to the order of 14th May, 2018, without putting a challenge to the order of 29th May, 2018, by which the Recall Application was actually dismissed, due to non compliance of the order dated 14.05.2018. In fact, the consequential effect of surviving of an order dated 29th May, 2018, would be that rather the counsel to the Second Appeal has been beating around the bush without actually putting a challenge to the order of 29th May, 2018, in a lis which otherwise, has met with its judicial death by an order of 29th May, 2018, as a consequence of its effect of its merger with order dated 29.05.2018. 29. In the application brought on record, the factum which has been placed before this Court is to the effect that in an application filed under Order 22 Rule 10A of the CPC, it has been brought on record, that after the death of auction purchaser Harnam Singh, his heirs who were otherwise to be substituted by his two heirs in whose favour, the will was executed on 9th April, 1999, i.e. Paramjit Singh Kapoor and Rajendra Pal Singh Kapoor, they have already obtained the probate from the Court of District Judge in Probate Case No. 44 of 2010, which too has attained finality. 30. We cannot ignore the fact. Though not relevant, but still, a passing remark is required to be made, that the litigation, which stood initiated way back in 1966, has now attained an age of 57 years and under the garb of the argument extended by the appellants about the effect of transfer of the Review Application, which has already been answered earlier, keeping in view the age of lis and its pendency, which has otherwise is no more in existence in the eyes of law, is an apparent abuse of process of law and that cannot be permitted to be perpetuated by this Court in the exercise of its powers under Section 100 C.P.C. 31. Hence, the Second Appeal has got no merit as such, which at all requires consideration of the Appeal on merits in the light of its already dismissal on 29th May, 2018, an order which has attained finality.