Gujarat High Court
Lily Delphia Susiraj Anthony & 6 vs Legal Heirs Of Basheer Ahmed Samid & 3 on 23 January, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SA/404/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 404 of 2017
With
CIVIL APPLICATION NO. 17177 of 2017
In
SECOND APPEAL NO. 404 of 2017
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LILY DELPHIA SUSIRAJ ANTHONY & 6....Appellant(s)
Versus
LEGAL HEIRS OF BASHEER AHMED SAMID & 3....Respondent(s)
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Appearance:
MR CHAITANYA S JOSHI, ADVOCATE for the Appellant(s) No. 1 - 7
MR SUDHAKAR B JOSHI, ADVOCATE for the Appellant(s) No. 1 - 7
MR DR BHATT, CAVEATOR for the Respondent(s) No. 4
MR. BK. RAJ, CAVEATOR for the Respondent(s) No. 1 - 1.2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 23/01/2018
ORAL ORDER
1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been brought before this Court by the appellants - original plaintiffs for challenging the legality and validity of the orders passed by the courts below dated 13.11.2017 and 27.12.2017 respectively.
2. The brief facts, out of which the present Second Appeal has arisen, are that the original applicant had purchased the suit property in a public auction held Page 1 of 18 HC-NIC Page 1 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER on 9.1.1975 for a consideration of Rs.35,000/ from a Special Recovery Officer under the Gujarat Cooperative Societies Act for the dues to be recovered by one cooperative bank society from debtor - Anthony Joseph. It is the case of the original applicant that entire amount has been paid on 20.1.1975 and pursuant to which, a sale certificate has been issued in his favour. This original applicant had moved Civil Misc. Application No.416 of 1975 to secure the possession of auctioned property from Anthony Joseph and the details of the said property have been described in the said original application. Thereafter, on 30.7.1976, an order was passed to entrust the possession by the then Civil Judge and notional possession was entrusted from the original opponents.
2.1 It is the case of the original applicant that the legal heirs of Anthony Joseph, the opponents of that application, had submitted Regular Civil Appeal No.191 of 1976 against the decision dated 30.7.1976 and the said appeal came to be decided on 30.10.1976, against which first appeal No.997 of 1976 was filed before the High Court of Gujarat and it was contended that applicant was obstructing from taking the possession of the property. The High Court had decided the said appeal vide order dated 20.1.1977, whereby the appeal of the opponents i.e. heirs of Anthony Joseph was rejected. However, as a matter of grace, time was given upto 25.1.1978 to entrust the possession. Though it was specifically assured before the High Court that opponents will not induct any other relative or Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER anybody else in the property and the time was granted upto 25.1.1978, the possession was not entrusted. As a result of which, the present applicant had got issued a warrant of possession in the original Misc. Application No.416 of 1975 and had gone to vacate the premises with the bailiff of the court. The opponents of the application made obstruction and filed one another application in the name of minors and thereby, execution was postponed. It is against that obstruction application filed in the name of minor, the applicant had filed an application in the form of Civil Misc. Application No.156 of 1978 in the court learned Civil Judge (SD), Vadodara with a relief that obstruction application submitted through the legal heirs be rejected and the possession warrant to be proceeded further.
2.2 The record further reveals that the opponents upon duly served appeared and filed their reply at Exh.19 in which it has been contended that application is not legal and tenable. It was also contended that original Misc. Application No.413 of 1975 was not pending in any court and same if made is not binding to them. It was also contended and submitted that if possession is allowed to be given, then opponents will be ruined and they will be put on the street. It was also contended that if the husband of the opponent No.1 has given any binding or assurance in the High Court, it is not binding to them and the applicants have no relation with the husband of the opponent No.1. They have pleaded complete ignorance as to how Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER they have taken notional possession in the earlier application and by raising other contentions, the application was contested. After taking the pleadings on record, the trial court has framed the issues for determination and after considering the chronology of events and after examining the entire stand of the opponents, it was found that contention cannot be upheld and the objection found to be flimsy and it cannot be said that the purchaser of the property who had already paid a very huge amount of Rs.35,000/, can be deprived of the fruits of the said transaction and after considering the entire evidence of the opponents and after considering the relevant provisions of the Indian Succession Act, it was found that obstruction application is found to be devoid of merit and the same is rejected vide order dated 27.12.1984 and the possession warrant was ordered to be proceeded with further. At this juncture, a fact is required to be taken note of that though the public auction which took place in January,1975 till 1984 the objectors have raised one challenge or the other, though it was found to be meritless. As a result of which, ultimately on 27.12.1984, the possession warrant was allowed to be proceeded with.
2.3 It is appearing further from the record that feeling aggrieved by and dissatisfied with the same, an appeal was filed originally before the High Court by way of First Appeal No.78 of 1985 for challenging the said decision. However, on account of the issue of jurisdiction of the District Court, the appeal was Page 4 of 18 HC-NIC Page 4 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER transmitted to the District Court, Vadodara and the same was registered as Regular Civil Appeal No.243 of 2005 (old First Appeal No.78 of 1985).
2.4 It further appears that during the course of appeal, a further application was filed under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence at appellate stage and the court had vide order dated 4.10.1978 allowed the appellant to produce the evidence with a rider that whether the documents produced are additional evidence or not, shall be decided at the time of final disposal.
2.5 It further transpires that yet another application has also been filed at Exh.13 to bring the legal heirs of deceased Bashir Ahmed Samid - original applicant and the legal heirs were brought on record during the pendency of the proceedings. During the course of time, the disputed property has also changed the hands. As a result of this, another application was filed at Exh.14 to join the new purchaser of the disputed property and in the backdrop of such series of circumstances, said Regular Civil Appeal was taken up for final disposal. It also appears that the appellate court has framed the issues on the basis of available pleadings for consideration and the first appeal has been treated and tried as in manner required under the law and after considering all the materials adduced before it and after considering various decisions delivered by the Apex Court as well Page 5 of 18 HC-NIC Page 5 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER as this Court, the appeal found to be meritless and as such, the said appeal was dismissed with costs. It is against these concurrent decisions, the appellants - original plaintiffs have preferred present Second Appeal under Section 100 of the Code of Civil Procedure for challenging the said concurrent decisions.
2.6 This appeal has come up for consideration before this Court on 12.1.2018 on which, upon request of learned advocates appearing for the parties have been heard and upon further submissions, it transpires present Second Appeal is against the concurrent decisions and prima facie, there appears to be no perversity, at the admission stage itself, having found that there is hardly any merit in the appeal, it is taken up for final disposal at the request of learned advocates. Considering this situation prevailing on record and keeping in view the proposition of law laid down by the Apex Court in a decision in case of Hari Narayan Bansal vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam reported in (2015) 16 SCC 540, that if at the admission stage itself, the Court is not inclined to accept the appeal, there appears to be no case made out without framing independently, the Second Appeal can be disposed of. The Court after taking note of such decision, has made an attempt to ensure whether any manifest error is committed or any perversity is reflecting and in that context, the learned advocates have been heard.
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3. Mr.Chaitanya S. Joshi, learned advocate appearing for the appellants, has contended that legal heirs of deceased Bashir Ahmed have already sold the disputed property to the purchaser and, therefore, they have left no other interest in the property and considering this, at their instance, execution proceedings are not maintainable, as a result of which both the courts below have not examined this issue which has cropped up. In addition to this, by drawing attention to the provisions contained under Order 21 Rule 101 of the CPC, it has been canvassed that courts below have independent power to decide all the relevant issues which have not been taken up by the courts below and by drawing attention to the substantial questions of law framed in Ground (e) of the appeal memo, a request is made to consider the Second Appeal in that context. However, learned advocate has candidly submitted that it is a long drawn litigation went on right from 1975 and the appeal is arising out of concurrent decisions of the courts below and after raising such issue, no other contentions have been raised before this Court.
4. To meet with the stand taken by learned advocate for the appellants, Mr.B.K.Raj, learned advocate for the respondents, has submitted that it is always open for the decree holders to approach for execution even if the main decree holder has expired. Apart from that, irrespective of change of hands of the property, undisputedly the opponents, who are decree holders, are entitled to enforce the decree. It has also been Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER submitted that right from 1975, systematically issues have been generated one after the other just with a view to drag on the litigation and also with a view to see that possession warrant may not be executed in any manner. It has further been contended that all throughout, more than enough time has been whiled away and, therefore, at least at this stage of the proceedings, these appellants may not be given any equitable relief. It has also been contended specifically that the issues which have been raised cannot form a subject matter of substantial question of law and Ground (e) is nothing but an issue which requires an adjudication of fact which has already been examined and said exercise has already been undertaken by the courts below and as such, this cannot be treated as substantial questions of law. After submitting this, ultimately contention is raised not to now allow the litigation to precipitate any further. No other submissions have been made.
5. Having heard the learned advocates appearing for the respective parties and having gone through the reasons which are assigned by the courts below, with a view to ensure whether any perversity is reflecting or not, the Court has evaluated the finding of the courts below in which it is found that the trial court while dealing with Civil Misc. Application No.156 of 1978 has examined in detail the entire chronology of events which took place in the transaction which has been entered into with respect to the suit property and upon careful consideration of such circumstance and Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER upon examination of the proceedings which went upto the High Court, the trial court has found that no case is made out. It was also found by the trial court that as per the provisions of the Indian Succession law, the applicants have not led any evidence, but shown that their ancestral were Hindus and, therefore, said provisions are applicable. Apart from that Hindu Law, the provisions contained in the Succession Act, it was noticed by the trial court that the assurance which has been given by the predecessor of opponents is not binding and upon careful analysis of material on record, it was specifically found that such objections which have been raised are flimsy, with a view to thwart the proceedings. It was also noticed by the trial court that huge amount of Rs.35,000/ is paid in the year 1975 and till date, the fruits of the decree have not been made available and considering the entire chronology of events, it was noticed that no case is made out and warrant for possession was allowed to be proceeded. Now, this conclusion which has been arrived at is based upon series of litigation which went on between the parties and after examination of such details, the conclusion is arrived at.
6. So is the case with the appellate court, which dealt with the Regular Civil Appeal No.234 of 2005 upon transfer of original first appeal from the High Court of Gujarat. The appellate court has not only framed the issues independently for adjudication and consideration, but then additionally the appellate Page 9 of 18 HC-NIC Page 9 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER court has also found that no case is made out. The appellate court has found that it was an admitted position that all the appellants are Christian and there was no concept like ancestral property right by birth as is popular under the provisions of the Hindu Law and after examining the said provisions, the appellate court has categorically come to the conclusion and the relevant conclusions are required to be reproduced hereinafter :
"15. In present case, the appellants are failed to establish that they are followed or controlled by treaties Hindu Law or they are governed by Hindu Law. Identically, there is not a single document, which suggest that disputed property was not self acquired property of deceased Joseph or Suseraje Anthony. Even if we go by the documents produced under Order~41, Rule27 C.P.C., as per order below Exh24, none of them speaks that this property or disputed property is ancestral property, whereby present appellant hold independent right and they are not bound by orders and decree confirmed up to Hon. High Court of Gujarat. The present appellants are also failed to discern that how and why they are not bound by orders and decree, which were confirmed up to Hon'ble High Court of Gujarat. Even these appellants are failed to show and establish that they acquire right by birth in the disputed property and their such right and title are independent to the title of Joseph and Suseraje Anthony. The provision of Indian Succession Act, applies to Christian for succession does not recognize any concept of ancestral property. In such circumstances, it is evident and proved that the present appeal is filed with a means to defer the possession of disputed property only. The fulcrum of entire process is nothing but to frustrate the purchaser of disputed property and deprive him from the source of the property.
18. The Hon'ble Apex Court in case of Dnyandeo Sabaji Nayak v. Pradnya Prakash Khadekar, (2017) Page 10 of 18 HC-NIC Page 10 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER O Supreme (SC) 496, heavily came down to abuse of the process at the hand of suiter and command all the Courts to deal with such a case with high hand. Para.13 and 14, which are necessary, are excerpted herein under :
"13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.
14. Courts across the legal system this Court not being an exception are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.
7. In view of the aforesaid situation, the appellate court has found that this is a fit case in which exemplary costs is required to be awarded in view of settled position of law and for that purpose, after analyzing all the materials on record and adjudicating the issues which have been framed, heavy cost was ordered which was quantified at Rs.15,000/ and accordingly, the said appeal was rejected.
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8. Considering the aforesaid situation and the specific conclusion by the courts below, this Court found that there appears to be no perversity or manifest error of any nature reflecting from the conclusion. However, on the issue of substantial question of law, the Court is mindful of a situation that what is substantial question of law which is well propounded by the Apex Court in a decision in case of Kashmir Singh v. Harmam Singh and Anr., reported in AIR 2008 SC 1749 as to what is substantial question of law and to examine this appeal from the stand point of view of said observation, the Court deems it proper to reproduced the said observations which reads, thus;
"15. To be substantial question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."Page 13 of 18
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9. Considering the aforesaid proposition of law, a faint attempt is made by the appellants to further drag on the issue under the guise of such questions which have been formulated and this Court is of the considered opinion that said questions in view of aforesaid proposition of law cannot be termed as substantial questions of law. Hence, the sole contention which has been raised and then, ultimately, left the matter to the Court.
10. In addition to this, it has been found that this question of interpretation of Order 21 Rule 101 of the CPC has not been so pressed into service, but if the object of said Rule is to be considered, then what has been attempted to canvass is already taken care of by the courts below while coming to the conclusion and this being the position of law, it is hardly reflecting that there is any merit in the case of the appellants.
11. In addition to this, the Apex Court in a decision in case of Damodar Lal v. Sohan Devi & Others, reported in (2016) 3 SCC 78, has propounded the scope of Section 100 of the Code of Civil Procedure and keeping that proposition in mind, the following observations since are relevant, quoted hereinafter:
"13. In Kulwant Kaur and others v. Gurdial Singh Mann (Dead) by Lrs.3, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote paragraph34:
"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity visÃvis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India4, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, Through Secretary (Labour) and others5, it was held at paragraph30:
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 :
1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"Page 16 of 18
HC-NIC Page 16 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
12. In view of aforesaid situation prevailing on record and keeping in mind the proposition of law laid down by aforesaid decisions and when both the courts below have concurrently found and there is no perversity is reflecting from the record, it is not open for this Court to dislodge the concurrent finding of fact while exercising jurisdiction under Section 100 of the CPC and as a result of that, keeping in view aforesaid proposition of law laid down by the Apex Court, this Court is of the considered opinion that no case is made out by the appellants in the present Second Appeal and the same being devoid of merit deserves to be dismissed and accordingly, the same is dismissed hereby.
13. Consequently, Civil Application No.17177 of 2017 is also disposed of.
Page 17 of 18HC-NIC Page 17 of 18 Created On Tue Jan 23 23:59:00 IST 2018 C/SA/404/2017 ORDER (A.J. SHASTRI, J.) FURTHER ORDER At this stage, Mr.Joshi, learned advocate, requests for grant of time for a period of two weeks from today only with a view to explore the possibility of overall resolution, to which learned advocate Mr.Raj appearing for the appellant has resisted and has expressed that if time is granted, he has no objection under the instructions.
Considering this broad consensus, two weeks' time is granted from implementation of present order more particularly when position was prevailing since long, to explore the possibility of overall resolution between the parties.
(A.J. SHASTRI, J.) (vipul) Page 18 of 18 HC-NIC Page 18 of 18 Created On Tue Jan 23 23:59:00 IST 2018