Gujarat High Court
Juvansinh Nathusinh Chauhan vs Ramsingji Manshukhji Chauhan & 26 on 27 February, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/CA/12501/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (LEAVE TO APPEAL) NO. 12501 of 2014
In
FIRST APPEAL (STAMP NUMBER) NO. 3499 of 2014
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JUVANSINH NATHUSINH CHAUHAN....Applicant(s)
Versus
RAMSINGJI MANSHUKHJI CHAUHAN & 26....Respondent(s)
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Appearance:
MR VIMAL A PUROHIT, ADVOCATE for the Applicant(s) No. 1
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No. 26 - 27
RULE SERVED for the Respondent(s) No. 1 - 25
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 27/02/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This application is filed for leave to appeal against the judgement of the trial Court dated 11.2.2014. The said judgement was rendered in Special Civil Suit No.569/2013 filed by opponents no.26 and 27 for specific performance of agricultural land bearing part of survey no.109 of village Odhav, Taluka City District Ahmedabad. Opponents no.1 to 25 were the defendants. According to the applicant, one Dhanaji Manshukhji Chauhan, the tenant of the said land was granted the land in the year 1968 under section 32G of the Bombay Tenancy and Agricultural Lands Act. Said Dhanaji had agreed to sale such land to the applicant for Page 1 of 5 C/CA/12501/2014 ORDER which permission from the Collector was obtained on 3.3.1983. On the basis of irrevocable power of attorney given to the applicant, sale deed dated 9.8.1996 was also registered. This very land the heirs of the deceased Dhanaji agreed to sale to present opponents no. 26 and 27 on 16.4.2013. On 26.6.2013, the proposed purchaser has filed the Special Civil Suit seeking the decree of specific performance. On th first returnable date, the defendants appeared and invited an agreed order. The trial Court accordingly allowed the suit by consent on 11.2.2014.
2. In view of such facts, we are of the opinion that the present applicant would be the person adversely affected by the judgement of the Civil Court. He would therefore, in terms of section 96 of the Code of Civil Procedure, have right to challenge the same as pointed out by the counsel for the applicant in case of Hardevinder Singh v. Paramjit Singh & others reported in 2013 (9) SCC 261, the Supreme Court observed that :
13. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original appeal or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to emphasize, he can prefer an appeal. In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s.
Golcha Properties Private Ltd. 1971 AIR (SC) 374 is worth noting: "It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be Page 2 of 5 C/CA/12501/2014 ORDER prejudicially affected by the judgment."
14. In State of Punjab v. Amar Singh and another, 1974 AIR(SC) 994, Sarkaria, J., while dealing with the maintainability of an appeal by a person who is not a party to a decree or order, has stated thus: "84. Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party - see Province of Bombay v. W.I. Automobile Association, 1949 AIR(Bom) 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) 1 QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235."
15. In Baldev Singh v. Surinder Mohan Sharma and others (2003) 1 SCC 34, a three JudgeBench opined that an appeal under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of 'person aggrieved', the Bench observed thus: "A person aggrieved to file an appeal must be one whose right is affected by reason or the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise."
Page 3 of 5 C/CA/12501/2014 ORDER3. Learned counsel Ms. Trusha Patel opposed this application contending that the appeal itself was not maintainable, since it arises out of a consent decree. In terms of sub section(3) of section 96, therefore, no appeal would lie against such judgement and decree. She further submitted that power of attorney on the basis of which applicant claims to have executed the sale deed, did not pertain to the land in question. The power of attorney was granted for the southern portion of survey no.109 whereas what was sold under the sale deed dated 9.8.1996 was the northern portion of the land. Thus it is the northern portion of the land which the applicants have purchased from the defendants.
4. Prima facie, we are of the opinion that subsection(3) of section 96 of the Code of Civil Procedure would bar an appeal against the consent decree at the hands of the consenting party. It would be hugely doubtful whether such provision would debar even the non consenting party who is aggrieved by judgement and decree of the trial Court from filing the appeal. Subsection(1) of section 96 provides that no appeal shall lie from a decree passed by the Court with the consent of the parties. Reference to the appeal therefore, in our prima facie opinion must be read in light of later portion of the said subsection which refers to the decree of the Court passed "with the consent of the parties". In other words, if the appellant was not a party before the Court with whose consent the decree was passed, cannot be denied the right to appeal under sub section(1) of section 96. However, such contention can be dealt with at the time of finally disposing the first appeal.
Page 4 of 5 C/CA/12501/2014 ORDERHowever, for the purpose of this Civil Application, we are sufficiently satisfied that the applicant is a person aggrieved by the judgement and decree of the trial Court.
5. In the result, application is allowed. The applicant is allowed to file first appeal against the said judgement and decree of the trial Court in Special Civil Suit No. 569/2013.
6. Civil Application is disposed of. Rule made absolute.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) raghu Page 5 of 5