Orissa High Court
International Society For Krishna vs Piyush Hasmukhlal Desai ...... Opp. ... on 31 January, 2014
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 6499 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India
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International Society for Krishna
Consciousness (ISKCON) represented
By Gour Netai Das. ...... Petitioner
-Versus-
Piyush Hasmukhlal Desai ...... Opp. Party
For Petitioner : M/s. B.P. Tripathy,
P.K. Chand, D.Satpathy,
J.Mohanty and C.R. Panda.
For opp. party : M/s. B.B. Mishra &
D.Sahoo.
Mr. Niranjan Behera .
(For intervenor)
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Decided on 31.01.2014
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
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M. M. DAS, J.The respondent no. 1 in R.F.A. NO.29 of 2005 pending before the learned District Judge, Puri is the petitioner in the present writ application.
2. As the facts are unfolded in this judgment, the peculiarity of the case will be exhibited.
It is the admitted case of the parties that the present petitioner and the sole opposite party as plaintiffs, filed Title Suit No. 118 of 1988 in the court of the learned Sub Judge, Puri against the original appellant in the aforesaid appeal, namely, Hasmukhlal Ballav Das Desai seeking a decree for declaration of right, title and interest 2 over the suit properties to an extent to Ac.30.99 decimals covering various plots over Khata No. 88 in Mouza - Sipasarubali, Thana- Sadar, Puri, District - Puri with consequential relief. In the said suit, the aforesaid Hasmukhlal Ballav Das Desai was the sole defendant, who is the father of the present opposite party. A written statement was filed by the said sole defendant in the aforesaid suit wherein the said sole defendant, who was the original appellant in the appeal pending before the learned court below, inter alia, stated as follows :-
"Written statement on behalf of the defendant
1. That the facts mentioned in the plaint need no reply.
2. That the ISCKON had practically provided funds for purchase of the schedule of the property at Puri.
3. That when defendant had find difficulty on his part to registered the schedule of the property in the name of ISKCON, the defendant was completed to register the schedule of the property in his name.
4. That the defendant have no objection if the schedule of property to be declared to be the property of ISKCON or plaintiffs and ISKCON or plaintiffs has right, title & interest over the property. Defendant has no right, title and interest over the schedule of property."
3. On the basis of such admission in the written statement, the aforesaid suit was decreed by declaring the right, title and interest of the plaintiffs in the said suit. The said decree remained undisturbed till 1999. One Biswanath Karnani said that he is the Power of Attorney holder of Hasmukhlal Ballav Das Desai (defendant in T.S. No. 118 of 1988) and instituted a title suit in the year 2000 bearing T.S. No. 123 of 2000 in the court of the learned Civil Judge (Senior Division), Puri representing the Principal as plaintiff. The said suit was subsequently transferred to the court of the learned 3 Additional Civil Judge (Senior Division), Puri and renumbered as T.S. NO. 119 of 2001 (hereinafter referred to as T.S. No. 123/119 of 2001 - 2000) in the aforesaid suit filed by the Power of Attorney holder, the present petitioner and the opposite party were arrayed as defendants 1 and 2.
4. It appears that after issuance of the summons, the present petitioner only entered his appearance and filed a written statement denying the plaint allegations. It may be stated here that the plaintiff Hasmukhlal Ballav Das Desai, in the said plaint asserting with regard to the title, inter alia, pleaded that the defendant No.2, i.e., present opposite party is his son, who became a member of the ISKCON on the persuasion of one Gour Gobinda Swami of ISKCON, who had considerable influence on the son of the plaintiff (opposite party herein) and his son was blindly following the dictates of the said Gour Gobinda Swami. On his persuasion, the opposite party transferred his valuable property to the ISKCON without any necessity or without any rhyme or reason or without the receipt of any consideration amount. He further pleaded that the opposite party, who was the defendant No.2 in the suit, did not care for his family life or even for his relationship with his father. Even after expiry of the said Gour Gobinda Swami, the defendant No.2 (opposite party herein) is away from the plaintiff and does not keep any relationship with him. The plaintiff received information from one Jagannath Patra about threat of ISKCON, to enter into the disputed property and on making necessary application for information with regard to any court case, could come to know about the decree passed in T.S. NO. 118 of 1988 4 by the learned Sub Judge, Puri mentioning that he is the original owner of the suit property and the defendants have no right, title and interest and alleging fraud to have been perpetuated against him, which would be evident from the record of T.S. No. 118 of 1988, made a prayer in the subsequent suit for a decree declaring the decree passed in T.S. NO. 118 of 1988 by the learned Sub Judge, Puri as illegal, fraudulent and void, for which it should be set aside and for permanent injunction restraining the defendants, i.e., the present petitioner and the opposite party from interfering with the possession of the plaintiff over the suit property. The said suit was heard by the learned Civil Judge (Senior Division), Puri. Ultimately, by judgment and decree dated 24.12.2004 and 07.01.2005 respectively, the suit was dismissed on contest.
5. Being aggrieved by the dismissal of the suit, the plaintiff Hasmukhlal Ballav Das Desai filed R.F.A. No. 29 of 2005 in the court of the learned District Judge, Puri. In the said appeal, the petitioner and the opposite party were arrayed as respondents 1 and 2 respectively. Notice of the said appeal was served on the respondents, pursuant to which the petitioner, who was respondent No.1, appeared in the said appeal, but the opposite party, who was the respondent No.2 chose not to appear in spite of due service of notice as is evident from the LCR of the appeal. On 28.02.2008, the present opposite party, who was the respondent No.2 in the said appeal, being represented by one Sri Bijay Kumar Panda as his Power of Attorney, filed a petition under Order - 22, Rule - 3 CPC praying to substitute the legal representatives of the appellant stating, inter alia, that the appellant is 5 dead since 09.10.2006. He filed two other applications for setting aside the abatement and condonation of delay. In the aforesaid application, it was stated that the sole appellant has expired on 09.10.2006 in the United States of America leaving behind him his two sons, namely, the said respondent (opp. party herein), i.e., Piyush Hasmukhlal Ballav Das Desai and one Kamlesh Hasmukhlal Desai. It was further stated that he was not aware of the said appeal and the High Court proceeding and direction. It was further stated that on 22.02.2008, he came to know from his Power of Attorney holder about the High Court's direction and continuance of the appeal. Here it may be stated that the opposite party, on being set ex parte by the learned trial court, approached this Court in W.P.(C) No. 5082 of 2008, which was heard and dismissed by this Court by order dated 26.09.2012. In the said petition, the opposite party claimed to pass orders to transpose him as appellant in place of the sole deceased appellant.
6. The learned lower appellate court issued notice of the said application to the other alleged son of the original appellant, who was stated to be the other legal heir to be substituted along with the present opposite party in place of the sole deceased appellant. The learned lower appellate court, by order dated 24.062008, recorded that the notice issued to LR No.II of the deceased appellant is back undelivered with a report "attempted, not known". By the said order, he directed to issue fresh notice to the LR No.II and posted the appeal to 28.08.2008. On 28.08.2008, again the learned lower appellate court posted the matter to 15.09.2008 awaiting the Postal A.D. On 15.09.2008, by the impugned order he held that since notice was 6 issued by Registered Post to the proposed L.R. No.II in the address given and the A.D. has not returned, as more than a month has elapsed, the notice is held to be sufficient on him. He took up the petitions for substitution, setting aside abatement and condonation of delay and recorded that considering the facts and circumstances, the delay appears to be bona fide. Accordingly, he condoned the delay setting aside the abatement and directed substitution of the legal representative of the sole deceased appellant by transposing the present opposite party, who was the respondent No.2 in the appeal, as the appellant and directing that the other legal representative shall be added as proforma-respondent.
7. This Court, during hearing of the writ application, called for the LCR. On perusal of the records of the learned lower appellate court, it transpires that even though it is alleged that the sole appellant Hasmukhlal Ballav Das Desai expired on 09.10.2006, but on each of the dates, to which the appeal was posted thereafter, the sole appellant was represented by his learned counsel, who filed 'Hazira' noting the presence of the appellant. The writ application, which was filed by the present opposite party, was also pending before this Court and was being prosecuted. Therefore, the learned lower appellate court, accepting the plea of the opposite party that he had no knowledge about the pendency of the appeal is farfetched.
8. Be that as it may, the vital question, which arises to be determined in this writ application is to whether the party in a civil suit can act against his own interest ?
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9. The facts as narrated above, clearly goes to show that the present opposite party was one of the co-plaintiffs in the earlier suit, i.e., T.S. No. 118 of 1988, which was decreed in favour of the plaintiffs. He was also impleaded as defendant in the suit, from which the present appeal arises. The deceased appellant, in his pleading, as already stated above, inter alia, pleaded conflict of interest between him and the present opposite party. When in the suit, from which the appeal arises, the plaintiff prayed for declaring the decree passed in the earlier suit filed by the present opposite party along with the petitioner, which was decreed in their favour, to be void and illegal and for restraining the defendants, i.e., the present petitioner and the opposite party, from coming upon the suit land, can the opposite party continue the appeal by being transposed as an appellant in place of the deceased sole appellant ? It is further to be seen as to whether any right to sue survives on behalf of the present opposite party to continue the appeal.
10. It is trite law that Order - 22 CPC only applies when a right to sue survives in favour of a person, who is the legal heir of the deceased party. The deceased appellant having filed the suit against the present opposite party, who was armed with a decree along with the present petitioner, to set aside the said decree as void alleging fraud against the defendants, by no stretch of imagination, it can be said that right to sue, i.e., to continue to prosecute the appeal survives with the opposite party. Order - 22 CPC in Rule - 1 clearly prescribes that the death of a plaintiff or defendant (here the appellant) shall not cause the suit (appeal) to abate if the right to sue survives. Rule - 3 8 thereof prescribes the procedure incase of death of the sole plaintiff (appellant). It is provided therein that when a sole plaintiff (appellant) or sole surviving plaintiff (appellant) dies and the right to sue survives, court on application made in that behalf shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit (appeal).
11. The facts as discussed above, clearly shows the peculiarity of the case, where the opposite party acting against his own interest wanted to be transposed as the appellant. It, therefore, cannot be said that the right to continue the appeal survived with the opposite party as he upon being substituted as an appellant would be acting against his own interest, which cannot be permitted under law.
12. No doubt, it was mentioned in the application for substitution under Order - 22, Rule - 3 CPC that there is another son of the sole deceased appellant, who by the impugned order was added as proforma-respondent. Hence, if the right to continue the appeal survived, it was only with the other son of the sole deceased appellant, who has never come forward before the court to continue the appeal. In such circumstances, the petition for substitution on behalf of the opposite party was not maintainable. Therefore, there being no application filed on behalf of the other alleged legal heir of the sole deceased appellant, to be substituted in his place, the learned court below could not have mechanically allowed the application for substitution after condoning the delay and setting aside the abatement by transposing the present opposite party as appellant. 9
13. In view of the above discussion, the impugned order dated 15.9.2008 under Annexure-1, being found unsustainable in law, is set aside and the appeal, i.e., R.F.A. is held to have abated as a whole. The writ application is allowed. There shall be no order as to costs.
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M.M. Das, J.
Orissa High Court, Cuttack.
January 31st , 2014/Subha.
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