Himachal Pradesh High Court
Prem Kumar & Others vs . Prakash Chand Sharma on 29 August, 2023
Prem Kumar & others Vs. Prakash Chand Sharma & others .
RSA No. No. 25 of 2004 Reserved on 19.08.2023 29.08.2023 Present: Mr. C.N. Singh, Advocate, for the Applicants/appellants.
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Mr. Vivek Sharma, Advocate, for
respondent No.1
rt CMP No. 13073 of 2021
The present application has been filed for the revival of the Regular Second Appeal in terms of the order dated 18.05.2018 passed by the Hon'ble Supreme Court of India in SLP (C)No. 836 of 2016, titled Prem Kumar & others Vs. Parkash Chand Sharma & others. It appears from the record that a civil suit was filed before the learned Trial Court for declaration, possession and mandatory injunction.
The suit was dismissed by the learned Trial Court on 29.07.1997. An appeal was preferred, which was allowed and the matter was remanded to the learned Trial Court for fresh disposal after framing material and essential issues. An FAO (ordinary) No. 226 of 2002 was filed before this Court and the matter was ::: Downloaded on - 31/08/2023 20:33:43 :::CIS remitted to the learned First Appellate Court with the .
direction to restore the appeal to its original number and pass an appropriate order under Order 41 Rule 25 CPC. The learned First Appellate Court remanded the matter to the learned Trial Court for recording the of findings on the issues. The learned Trial Court recorded the findings on the issues framed by the rt learned First Appellate Court and submitted the file to the learned First Appellate Court. The learned First Appellate Court allowed the appeal and set aside the judgment and decree of the learned Trial Court.
Regular Second Appeal No. 25 of 2004, was filed before this Court, which was dismissed on 27.05.2004, after holding that no decree was passed against the appellants and they could not be said to be aggrieved by the judgment of the learned First Appellate Court.
2. It appears that the parties approached the learned First Appellate Court for preparation of the decree;
however, this application was dismissed by the learned First Appellate Court. The matter was again ::: Downloaded on - 31/08/2023 20:33:43 :::CIS brought to the notice of this Court by filing CMPMO .
No. 7 of 2015. This Court set aside the order, passed by the learned First Appellate Court, and directed the judgment and decree be rectified to specify the extent and manner of appropriate relief to which the of petitioner was found entitled.
3. Aggrieved from the aforesaid order, SLP (Civil) rt was preferred before the Hon'ble Supreme Court of India and the Hon'ble Apex Court held that the petitioners shall be at liberty to move the High Court in case they are aggrieved by the particulars of the decree by seeking revival of Regular Second Appeal No. 25 of 2004. This Court was asked to consider the application on merits without being influenced by the earlier order. The learned First Appellate Court corrected the earlier judgment passed by it and restrained defendant no.1 by way of permanent prohibitory injunction from carrying out the construction on the joint land, or causing any obstruction to the path leading to the house of the plaintiff on both sides. The applicants/defendants ::: Downloaded on - 31/08/2023 20:33:43 :::CIS filed the present application seeking the revival of .
the Regular Second Appeal in view of the specific decree passed by the learned First Appellate Court.
4. The application is opposed by filing a reply, taking preliminary objections regarding lack of of maintainability, the applicants being estopped from filing the present application and the application rt being barred by limitation. However, it was not disputed that a civil suit was filed which was dismissed, an appeal was preferred and the matter was remitted to the learned Trial Court for returning findings on additional issues and the Regular Second Appeal was dismissed on the ground that no decree was passed. It was asserted that no application for correction of judgment and decree passed by the learned First Appellate Court was filed by the applicants. The application was moved by the plaintiffs on 15.10.2012, which was finally dismissed and CMPMO No.7 of 2015,was allowed. The SLP(Civil) against the order was dismissed. It was asserted that it is not permissible to revive the appeal after the ::: Downloaded on - 31/08/2023 20:33:43 :::CIS lapse of 17 years. A legal right has accrued, which .
cannot be taken away. Hence, it is prayed that this application be dismissed.
5. I have heard the learned counsel for the parties and gone through the records meticulously.
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6. The chequred history of this case shows that the parties have been in litigation for a long time and rt are suffering for no fault of their own. It is not disputed that the matter was earlier remitted to the learned Trial Court. FAO against this order was allowed and learned Additional District Judge was called upon to seek the findings on the issues so framed by it. It is also not disputed that the appeal was allowed but the precise relief granted to the successful party was not mentioned. The Regular Second Appeal was filed, which was dismissed on the ground that no executable decree was passed. It is also not disputed that an application for correction was filed, which was dismissed, and this Court had to direct the learned First Appellate Court to prepare the decree, as per the findings recorded earlier. The ::: Downloaded on - 31/08/2023 20:33:43 :::CIS defendants/appellants were not aggrieved till the .
decree was drawn up by the learned First Appellate Court. They become aggrieved only on 18.08.2021, when the decree was passed. They filed the present application in October 2021, for revival of the Regular of Second Appeal No. 25 of 2004 as per the directions issued by the rt Hon'ble Supreme Court of India.
Hence, in such a situation the plea that the application is barred by limitation cannot be accepted. The cause of action for reviving the appeal only accrued to the defendants/applicants in the year 2021, when the formal decree was drawn. Earlier there was no executable decree and they had no cause to revive the appeal as held by this Court.
7. It was stated that the applicants should have approached the learned First Appellate Court immediately after the dismissal of the Regular Second Appeal and they were at fault. This submission ignores the fact that the appellants could not have been aggrieved by any order passed by the learned First Appellate Court as long as the same did ::: Downloaded on - 31/08/2023 20:33:43 :::CIS not cause any prejudice to them. The applicants .
being the defendants are not expected to approach the Court for passing a decree against themselves. It was for the plaintiff to approach the Court to get the particulars of the reliefs specified and it was only of when the plaintiff approached the learned First Appellate Court and this Court and when the decree rt was finally drawn that the defendants/appellants felt aggrieved by the decree. They even approached the Hon'ble Supreme Court of India, against the order passed by this Court but were unsuccessful. The only consolation was that they were provided with the liberty to get the appeal revived; therefore, there is no fault on the part of the defendants/appellants in approaching the Court for the revival of the Regular Second Appeal. As already stated, the appeal could not have been revived till the formal decree was drawn up by the learned First Appellate Court.
8. The applicants had done whatever was permissible for them to do. When the appeal was allowed, they promptly filed a Regular Second Appeal before this ::: Downloaded on - 31/08/2023 20:33:43 :::CIS Court, which was dismissed on the ground that there .
was no executable decree. The applicant did not take any steps and rightly, so because in the absence of any executable decree they had no cause of action to file an appeal, their cause of action only arose when of the executable decree was drawn up. Hence, the applicants cannot be faulted for the delay in rt approaching the Court. The effect of the correction made by the learned First Appellate Court in the year 2021 will relate to the judgment and decree, which was passed on 25.04.2003 as correction was made in the judgment and decree dated 25.04.2003. The defendants/applicants had already preferred RSA No. 25 of 2004 against the judgment and decree dated 25.04.2003 before this Court, which was found to be defective, in the absence of an executable decree. The defect in the appeal was removed the moment a correction was made and the executable decree was drawn. Thus, even in the absence of the order passed by the Hon'ble Supreme Court of India, the defendants/appellants would have been within their ::: Downloaded on - 31/08/2023 20:33:43 :::CIS right to seek revival of the Regular Second Appeal no.
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25 of 2004, which was preferred earlier by them.
9. It is well settled that the act of the Court will not prejudice any person. The applicants/defendants have a right to approach the Court against the decree of that has been passed against them, hence, the present application is allowed and the Regular rt Second Appeal No. 25 of 2004 is ordered to be restored to its original number.
10. The present application stands disposed of.
RSA No. 25 of 2004.
The present appeal has been ordered to be restored as per the order passed in CMP NO.13073 of 2021.
Sh. C.N Singh, Advocate appears and waives service of notice on behalf of respondent no. 1. Issue notice to the other respondents returnable within four weeks, on taking steps within one week.
(Rakesh Kainthla) Judge August 29, 2023 (ravinder) ::: Downloaded on - 31/08/2023 20:33:43 :::CIS