Madhya Pradesh High Court
Smt. Najma (Died) Though Lrs. Agha Mohd ... vs Chinta Singh on 10 July, 2023
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
REVIEW PETITION No. 527 of 2023.
BETWEEN:-
1. SMT. NAJMA (DIED) THOUGH LRS. AGHA
MOHD KHAN S/O TAUFIQ MOHD. KHAN,
AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURIST R/O H.NO. 05 OPPOSITE
ANMOL APARTMENT PROFESSOR
COLONY TEHSIL HUZUR DISTRICT
BHOPAL (MADHYA PRADESH).
2. ALIZA KHAN D/O AGHA MOHD. KHAN,
AGED ABOUT 23 YEARS, R/O H.NO. 05,
OPPOSITE ANMOL APARTMENT
PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (MADHYA PRADESH).
3. AYESHA KHAN D/O AGHA MOHD. KHAN,
AGED ABOUT 18 YEARS, R/O H.NO. 05,
OPPOSITE ANMOL APARTMENT
PROFESSOR COLONY, TAHSIL HUZUR,
DISTRICT BHOPAL (MADHYA PRADESH).
4. AIN MOHD. KHAN S/O AGHA MOHD. KHAN,
AGED ABOUT 15 YEARS, OCCUPATION:
THROUGH GUARDIAN FATHER AGHA
MOHD. KHAN S/O TAUFIQ MOHD. KHAN,
AGED ABOUT 52 R/O H.NO. 05, OPPOSITE
ANMOL APARTMENT PROFESSOR
COLONY, TAHSIL HUZUR, DISTRICT
BHOPAL (MADHYA PRADESH).
.....PETITIONERS
(BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE WITH SHRI
PRAFULLA SHARMA - ADVOCATE)
AND
1. CHINTA SINGH S/O NOT MENTION NOT
MENTION (MADHYA PRADESH)
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/11/2023
10:24:08 AM
2
2. S.L NOMAAN S/O NOMAN GORI NEAR
RIFIKIYA SCHOOL BHOPAL (MADHYA
PRADESH).
3. ABEED ALI KHAN (DEAD) THROUGH SMT.
SAIDA BEE W/O LATE ABID ALI, AGED
ABOUT 62 YEARS, H.NO. 13 MALIPURA
PEERGATE TAHSIL HUZUR DISTRICT
(MADHYA PRADESH).
4. FAUZIA ABID KHAN D/O LATE ABID ALI,
AGED ABOUT 41 YEARS, H.NO. 13
MALIPURA PEERGATE TAHSIL HUZUR
DISTRICT (MADHYA PRADESH).
5. SMT. FARNAZ IFTIKHAR W/O SAAD
IFTIKHAR D/O LATE ABID ALI, AGED
ABOUT 38 YEARS, C 66 KINGS ROAD
OPPOSITE TO SAIFIA COLLEGE GATE NO.
1 HOUSING BOARD KOHEFIZA TAHSIL
HUZUR DIST. (MADHYA PRADESH).
6. STATE OF MADHYA PRADESH THROUGH
COLLECTOR BHOPAL (MADHYA
PRADESH).
7. MOHAMMAD JAMAL S/O MOHAMMAD
SHAKEEL AHMEDABAD PALACE
KOHEFIZA BHOPAL (MADHYA PRADESH)
8. MOHD. SHAAYAN S/O MOHD. SHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH)
9. MOHD. IMAAN S/O MOHD. SHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH).
10. MOHD. FAFIQ S/O MOHD. SHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH)
11. MOHD. UMAR S/O MOHD. SHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH)
12. MOHD. YUSUF S/O MOHD. SHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH)
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 7/11/2023
10:24:08 AM
3
13. MOHD. DANISH S/O MOHD. KHAKEEL
AHMEDABAD PALACE KOHEFIZA
BHOPAL (MADHYA PRADESH).
.....RESPONDENTS
(SHRI ASHOK LALWANI - ADVOCATE WITH SHRI P. K.
MISHRA - FOR RESPONDENT NO.1.)
-----------------------------------------------------------------------------------------
Reserved on : 06-07-2023
Pronounced on : 10-07-2023
-----------------------------------------------------------------------------------------
This review petition having been heard and reserved for order, coming
on for pronouncement this day, the court pronounced the following :
ORDER
This review petition under Order 47 Rule 1 read with Section 114 of the Civil Procedure Code has been filed for review / recall / modification of the final order dated 13.04.2023 passed by this Court in F.A. No.471/2016.
2. Learned senior counsel for the review petitioners contends that the appellant Chinta Singh had filed first appeal bearing FA No.471/2016 challenging the impugned judgment and decree dated 27.2.2016 passed in Civil Suit No.121-A/2007 by Second Additional Judge to the Court of First Additional District, Bhopal. The said appeal was heard and decided on 13.04.2023. Further contends that at the time when the first appeal was heard and decided, respondent no.3 i.e. Smt. Najma W/o. Agha Mohd. Khan was not represented by the counsel and respondent no.3 Smt. Najma W/o. Agha Mohd. Khan had expired on 30.03.2023 leaving behind legal representatives who filed this review petition were not brought on record. Learned Senior counsel asserts Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/11/2023 10:24:08 AM 4 that they were necessary party in this case and that first appeal should not have been adjudicated without their involvement because the impugned order was passed against the deceased individual and according to the settled law (as per Shankarlal vs. Smt. Pyari Bai, 1992 (1) MPWN 151) any judgment or order passed against a dead person without their legal representatives being brought on record, is a nullity. In order to substantiate his contention, learned Senior counsel has also relied upon a Division Bench judgment of this court passed in R.P. No.826/2015 [Smt. Meerabai vs. Babulal (died) thr. Lrs. Maganlal Kirar] vide order dated 18.1.2016. Learned senior counsel for review petitioners has fairly conceded that if one of the legal heirs of Smt. Najma would have been on record then he had been no case for review of the impugned judgment passed in the first appeal. Learned counsel has also filed certain documents to bring on record subsequent events. Hence, prayer is made to allow the review petition and decide the first appeal on merits.
3. Per contra, learned counsel for the non-applicant no.1 has vehemently opposed the contentions advanced by learned senior counsel for the review petitioners. At the outset learned counsel has contended that Smt. Najma W/o. Agha Mohd Khan was muslim by her religious faith and as per the principle of Mahomedan law, the applicants / review petitioners and their mother Smt. Najma would be legal heir. He has brought to the notice of the Court the provisions of Mahomedan law referred at clause (r) of principle of Mahomedan law which clearly exhibits that mother is legal heir of the family and is entitled to 1/6 share of her estate. Further contended that since Smt. Saida Bee / respondent no. 2 is mother of the deceased Smt. Najma and is already on record to take care of interest of late Smt. Najma neither the appeal would abate nor it can be said that the judgment has been passed against the dead person. Further contended that after hearing learned counsel for both the rival parties, this Court vide order dated 13.4.2023 has decided the appeal on merits. It is incorrect to Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/11/2023 10:24:08 AM 5 say that respondent no. 3 i.e. Smt. Najma W/o. Agha Mohd Khan was not represented by her counsel. The counsel for respondent no. 3 Smt. Najma W/o. Agha Mohd. Khan was appeared on 6.4.2023 and 13.4.2023 on the strength of Vakalatnama executed by her. Respondent no. 3 Smt. Najma W/o. Agha Mod. Khan was brought on record as legal representative of respondent no. 2 i.e. Abid Ali, along with other legal representatives i.e. Saida Bee, Fauzia Abid Khan and Smt. Farnaz Iftikhar. Thus, legal representatives of respondent no. 3 Smt. Najma were not the main contesting party to the first appeal as respondent no. 2 Abid Ali had already sold the disputed land to respondents no. 7 to 13. To buttress his contentions, learned counsel for respondent no.1 has relied upon a judgment of the Supreme Court in Shivshankara and another vs. H. P. Vedavyasa Char, 2023 SCC OnLine SC 358 (para 38). Non-applicant has also counter attacked the arguments on considering the subsequent events raised by filing certain documents. It is submitted that review petition is to be decided by appreciating the error apparent on the face of the record and not on subsequent events. Hence, prayer is made to reject the review petition being meritless.
4. Heard learned counsel for both the parties at length and perused the case laws cited by learned counsel for both the rival parties. This Court is of the considered opinion that learned senior counsel appearing for the review petitioners has rightly submitted that if one of the legal heirs of the deceased Smt. Najma is on record, the appeal would not abate and no infirmity can be found in the impugned judgment. Considering the Muslim Personal Law it is evident that mother of Smt. Najma would also be one of the legal heir who has already been arrayed as respondent no. 2. Respondent no. 2 was well aware on the date of the argument to take care of the interest of the deceased Smt. Najma as one of the successor. Therefore, taking into consideration the judgment of the Apex Court reported as Shivshankara (supra), there is no error apparent on the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/11/2023 10:24:08 AM 6 face of record. The judgment cited by the applicant passed in R.P.No.826/2015 does not help the applicant because in that case, the deceased was sole respondent and in that case, none of his heirs were present on record. Further, as per the provisions of under Order XXII Rule 10A of CPC, it is the duty of the counsel concerned to inform to the court about the death of party but when the appeal was heard on 6.4.2023 and on 13.4.2023 no such information was given about the death of respondent no. 3.
5. It has been rightly argued by learned counsel for the non-applicant that subsequent event cannot be considered for searching an error apparent on the face of the impugned judgment.
6. While exercising the power under Order 47 Rule 1 of CPC the Court has limited power and the Court cannot act as an appellate court. The court can only examine any error which is apparent on the face of the record and appreciation of which goes to root of the matter. If by appreciating the evidence or record, another view is possible the same is out of the purview of the review. The court therefore, cannot exercise the power of review without there being any error apparent on the face of record. In absence of any error, the present review petition stands dismissed. No order as to costs.
7. Consequently, all interlocutory applications filed along with the review petition by the review petitioners also stand rejected.
(ARUN KUMAR SHARMA) JUDGE JP/-
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 7/11/2023 10:24:08 AM