Allahabad High Court
Km. Shreya Vidyarthi vs Ashok Vidyarthi And 7 Others on 5 March, 2018
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 16 Case :- FIRST APPEAL No. - 411 of 2017 Appellant :- Km. Shreya Vidyarthi Respondent :- Ashok Vidyarthi And 7 Others Counsel for Appellant :- Bipin Lal Srivastava Counsel for Respondent :- Santosh Kumar Kesarwani Hon'ble Ashwani Kumar Mishra,J.
1. The present appeal has been filed under section 97 of Civil Procedure Code challenging the judgment dated 8.7.2016, as well as final decree for partition dated 6.8.2016, passed by the Additional District Judge, Court No.23, Kanpur Nagar in Original Suit No.630 of 1978.
2. An application has been filed by the plaintiff-respondent under Chapter VIII Rule 24 of the Rules of the Court for summary determination of appeal. It is contended that that the questions urged in this appeal have already been decided by this Court. It is emphasized that determination by this Court has attained finality with the dismissal of Civil Appeal No.3162-3163 of 2010, on 16.12.2015. Contention is that same issues are again being urged by the defendant-appellant, which is not permissible in law.
3. In order to examine the issue, facts relevant for the present purposes, needs to be noticed first.
4. Plaintiff-respondent Ashok Vidyarthi instituted Original Suit No.630 of 1978 against his two sisters Km. Shrilekha Vidyarthi and Km. Madhulekha Vidyarthi, as well as Smt. Savitri Vidyarthi, mother of the plaintiff and his two defendant sisters for partition. Plaintiff's wife and his minor children were arrayed as defendant nos.4 to 7. Following reliefs were sought:-
"(a) A decree of injunction permanently restraining the defendants no.1 and 2, their men, servants, and agents, from ejecting in any way (including even by way of execution of decree of the suit no.37 of 1969 passed by the I- Additional Civil Judge Kanpur, under section 6 of Specific Relief Act) the plaintiff from the part of the bungalow in suit, occupied by the plaintiff;
(b) And, in the alternative, a decree for partition ascertaining and separating by metes and bounds the plaintiff's share of 1/10th of the bungalow no.7/89 Tilaknagar Kanpur, which is bounded as below:-
East : Tilaknagar Road West : Premises no.7/90 North : Premises no.7/88 Sout : Premises no.7/89-A
(c) Cost of suit."
5. Suit was contested by the defendants and a counter claim for damages was also raised. Ultimately, the suit was dismissed by the First Additional District Judge, Kanpur, on 19.8.1987. A First Appeal No.693 of 1987 was thereafter filed by the plaintiff before this Court. The suit was decreed in appeal after setting aside the decree of trial court on 12.8.2009. The present appellant then filed Civil Misc. Recall Application No.262907 of 2009 contending that on the relevant date she was a minor and as provisions of Order XXXII Rule 3 CPC had not been complied the decree passed in appeal was liable to be recalled. The recall application was rejected on 24.11.2009. The present appellant thereafter preferred Civil Appeal No.3162-3163 of 2010 before the Apex Court raising similar ground which too was rejected on 16.12.2015 by a reasoned order. A review filed thereafter on same grounds was also rejected by Apex Court on 15.3.2016.
6. The preliminary decree for partition was thereafter put in execution. The present appellant filed an objection under section 47 which came to be rejected on 8.7.2016. By the order a direction was issued to the office to prepare a final decree for partition. Accordingly, a final decree for partition has been drawn on 6.8.2016. Appellant then preferred a petition under Article 227 of the Constitution of India being Petition No.9707 of 2016, challenging the orders and the decree, which was dismissed vide following orders passed on 9.12.2016:-
"Heard Sri S.K. Varma, Senior Counsel, assisted by Sri Bipin Lal Srivastava, learned counsel for the petitioner.
The petitioner has preferred this petition under Article 227 of the Constitution of India making the following two prayers:-
(i) to set aside the final decree dated 06.08.2016 prepared in the original suit for partition No.630 of 1978;
(ii) to direct the executing court to decide her objections filed under Section 47 C.P.C. paper No.4Ga.
It appears that a preliminary decree determining the shares of the parties was passed in the suit for partition by the appellate court and the said decree has attained finality.
On basis of the aforesaid preliminary decree proceedings for preparation for the final decree were initiated wherein the petitioner filed objections under Section 47 C.P.C.
It is contended that without deciding those objections, a final decree has been passed on 06.08.2016.
Once a final decree has been passed, the remedy of the petitioner is to challenge the final decree may be by taking a ground that it has been passed without deciding her objections. The final decree so passed in the suit for partition cannot be assailed directly by taking recourse to a petition under Article 227 of the Constitution of India.
There is no occasion for directing to decide objections of the petitioner filed in proceedings for the preparation of final decree when the final decree has already been prepared and the remedy of the petitioner is to challenge the final decree.
In view of the aforesaid facts and circumstances of the case, the petition lacks merit and is dismissed."
7. It is thereafter that present appeal has been preferred alongwith delay condondation application. Delay in filing of the appeal was condoned on 18.1.2017, and the appeal thereafter has been admitted on 21.8.2017 and following orders were passed on 21.8.2017 upon the stay application:-
"(Order on Civil Misc. Stay Application No.155553 of 2017) Heard learned counsel for the parties.
It is sought to be urged by learned counsel for the appellant that at the time of passing the preliminary decree in suit for partition, the appellant/defendant was minor. The appellant filed an objection before preparation of the final decree. The Trial Court without deciding the application proceeded to prepare the final decree. It is, therefore, sought to be urged that decree was a nullity and no decree in the eye of law.
Submissions requires consideration.
Till the next date of listing, effect and operation of the impugned judgment and decree dated 29.04.2017 passed by Additional District Judge, Kanpur Nagar shall be remain stayed."
8. It is thereafter that an application under Chapter VIII Rule 24 of the Rules of the Court has been filed upon which affidavits have been exchanged and the matter is taken up for its determination.
9. Sri S. K. Verma, learned Senior Counsel, assisted by Sri Bipin Lal Srivastava appearing for the appellant submits that on the date of passing of decree by this Court, the appellant was a minor and was not properly arrayed inasmuch no guardian was appointed for her. It is contended that the preliminary decree passed by this Court is, therefore, nullity in law. It is also contended that a specific objection in this regard was filed before the executing court, which has not been examined on merits. It is contended that the executing court has proceeded on the assumption that there is no objection filed, thereby ignoring the specific objection filed and accordingly the order under challenge is liable to be set aside on the short ground that it fails to consider the objection. Submission also is that the impugned judgment suffers from complete non application of mind. Reliance is placed upon decisions in Mubarak vs. Deputy Director of Consolidation, U.P. Lucknow, Camp at Meerut [1975 AWC (Alld) 467], Smt. Kaushalya Devi and others vs. K.L. Bansal [AIR 1970 SC 838], M/s Saraswat Trading Agency, Awardholder vs. Union of India and others [AIR 2004 Calcutta 267], Ran Singh vs. The Gandhar Agricultural Co-operative Service Society [AIR 1976 P&H 94 (FB)], Nathumal vs. Mohd. Nazir Beg and another [AIR 1955 Alld. 584] and Ram Chandra Arya vs. Man Singh and another [AIR 1968 SC 954].
10. Sri Santosh Kumar Kesarwani, learned counsel appearing for the plaintiff-respondents, on the other hand, submits that the proposition of law urged on behalf of the appellant is not disputed, but the same has no applicability in the facts of the present case. It is submitted that an issue which has already been specifically dealt with and decided by the Apex Court cannot be permitted to be re-agitated in execution proceedings or before this Court. It is further submitted that the allegation of non application of mind or non consideration of objection is wholly misconceived, inasmuch as the court below has merely observed that there is no objection filed to the scheme of partition and so far as aspect of minority of appellant is concerned, the same has rightly not been commented upon by the court below once the issue stands conclusively determined under the judgment of the Apex Court.
11. I have heard Sri S. K. Verma, learned Senior Counsel, assisted by Sri Bipin Lal Srivastava appearing for the appellant and Sri Santosh Kumar Kesarwani, learned counsel appearing for the respondents and have perused the materials brought on record.
12. On the basis of submissions advanced following points arise for determination in appeal:-
(i) Whether the preliminary decree for partition dated 12.8.2009, as affirmed by the Apex Court is a nullity for the reason that it was passed against a minor, without complying with requirement of Order XXXII Rule 3 CPC?
(ii) Whether the trial court has failed to consider the objection of the appellant under section 47 CPC while conforming the partition scheme and drawing final decree for partition?
13. Sri S. K. Verma, learned Senior Counsel submits that appellant Km. Shreya Vidyarthi was born on 22.9.1992 and was a minor on the date of passing of decree by this Court. She is stated to be the daughter of Madhulekha Vidyarthi and was adopted by Shrilekha Vidyarthi. Both Madhulekha Vidyarthi and Shrilekha Vidyarthi died during pendency of the First Appeal No.693 of 1987. Three applications appear to have been filed in the appeal for substitution etc. This Court while allowing the appeal had observed as under in its judgment dated 12.8.2009:-
"From the order dated 12.1.2009, passed on the ordersheet, it appears that in this case three Miscellaneous Applications seeking substitution etc. were allowed and the legal heirs of respondents were brought on record. Lateron corrections were carried out accordingly. Km. Shreya Vidyarthi, said to be adopted daughter of Km. Srilekha Vidyarthi, respondent no.1, has already been impleaded on the formal application moved by Km. Shreya Vidyarthi that she may be permitted to contest the Appeal as adopted daughter of Km. Srilekha Vidyarthi. This Application was allowed. As per order dated 18.5.2009, it appears that Km. Shreya Vidyarthi has been treated to be a major and she was permitted to contest the Appeal for her own legal right (as adopted daughter of respondent no.1, Km. Srilekha Vidyarthi). Sri A.K. Pandey, learned counsel, had put in appearance to represent respondent no.8, that is, Km. Shreya Vidyarthi (a major)."
(emphasis supplied)
14. It appears that this Court proceeded to treat the appellant as having attained majority and was heard through her counsel Sri A.K. Pandey, Advocate. It would be appropriate to take note of the orders dated 18.5.2019, referred to in the judgment at this stage. Two separate orders passed on the same date i.e. 18.5.2009 upon miscellaneous applications are reproduced hereinafter:-
"In this appeal respondent No.1 Km. Srilekha Vidyarthi had expired. She had adopted Km. Shreya Vidyarthi as her daughter. An application was moved that she may be permitted to contest the appeal as adopted daughter of Km. Srilekha Vidyarthi. The application was allowed vide order dated 10.10.2007 on the consent of the parties. However, she has not been impleaded as respondent in the appeal. Accordingly, office is directed to implead Km. Shreya Vidyarthi adopted daughter Km. Shrilekha Vidyarthi, R/o 7/89 Tilak Nagar, Kanpur Nagar as respondent No.8.
The order on the other application reads as under:-
Learned counsel for other appellant submits that Km. Shreya Vidyarathi is now a major and therefore she may be allowed to contest the appeal in her own right. Permission is granted. Sri A.K. Pandey, learned counsel who was represented respondent no.8 so far as is allowed a week's time to obtain fresh power of attorney on her behalf as a major and to file the same in his appeal."
15. Recall Application No.262907 of 2009 on behalf of appellant Shreya Vidyarthi, supported with affidavit of Sri Rajendra Prasad Mishra, thereafter was filed stating that she was a minor and had not engaged Shri A. K. Pandey, Advocate. The appellant was described in the following manner:-
"Km. Shreya Vidyarthi, aged about 17 years (Minor), Adopted daughter of Smt. Srilekha Vidyarthi widow of Col. Virendra Singh Arya, R/o 7/89 Tilak Nagar, Kanpur through her guardian Sri Rajendra Prasad Mishra S/o Late Shri S.B. Mishra R/o 80/71 Cooperganj, Kanpur."
16. Recall Application No.262907 of 2009 was contested and ultimately dismissed by a detailed order dated 24.11.2009, which is reproduced hereinafter:-
"This case is listed for disposal of the application seeking recall of the judgement and order dated 12.8.09 which was presented on 6.10.09. Km. Shreya Vidhyarthi is represented by one Sri Rajendra Prasad Mishra, son of late Sri S.B.Mishra, r/o 80/71, Cooperganj, Kanpur who has filed an affidavit in support of the application. Sri Zafar Naiyer, learned senior advocate assisted by Sri Sandeep Harkauli has put in appearance on behalf of applicant.
After hearing the parties, this appeal of 1987 was disposed of on 12.8.09 by a detailed judgment running in 28 pages. This Court had taken note of the fact that Km. Shreya Vidhyarthi was represented by one Sri A.K.Pandey, advocate. As per order sheet, Sri A.K.Pandey had put in appearance in this case on 15.7.09 and 16.7.09. Late Smt.Srilekha Vidyarthi as well as Shreya Vidyarthi have filed written arguments in this case which were considered by this Court.
The Court has taken note of the fact that now Sri Zafar Naiyer, senior advocate, Sri Sandeep Harkauli and Tariq Naiyer (who were not counsel for Sri Lekha Vidyarthi & Shreya Vidyarthi during the pendency of the appeal and at the time of the final hearing of the appeal) have filed this application seeking recall of the order dated 12.8.09. The judgment and order dated 12.8.09 is not an exparte order. It is a detailed order taking note of the submission, written arguments and versions of the parties. Moreover Sri Rajendra Prasad Mishra who claims himself to be guardian and caretaker of Km. Shreya Vidyarthi had also not filed any affidavit in this case till the disposal of the appeal. He has appeared for the first time claiming himself to be caretaker and guardian of the applicant.
Shri Ashok Vidyarthi has filed counter affidavit/objection to this application. He has submitted that Km. Shreya Vidyarthi is not a minor but in fact she is major. As per adoption deed dated 14.9.91 and the affidavit of Smt. Nandini Shukla, the natural real mother of Km. Shreya Vidyartyarthi (who was earlier known as Ankita at the time of the adoption)was born on 22.9.90. She is 18 years and four months old now. Sri Rajendra Prasad Mishra who has sworn the affidavit as a local guardian of a major lady in support of the application has no locus standi to maintain this application. Km. Shreya Vidyarthi was impleaded as respondent No.8 in the first appeal No.693 of 1987 and she was a major when the case reached at the final stage of disposal and hearing. The written arguments of Km. Shreya Vidyarthi are already on record which were perused by the Court. She despite being major, neither her counsel nor she herself did pursue the case and did not put in appearance in the court wilfully. It was done with an ulterior motive. Sri Ashok Vidyarthi has drawn attention of the Court to a written compromise entered between Km. Shreya and a builder well notarized and signed on 23.1.09 claiming herself to be major. On this date the first appeal No.693 of 1987 was pending. She was inducted in this appeal on 10.10.07 and the Court has taken notice of this order in the order dated 18.5.09. Attention of the Court was drawn to the application dated 10.10.07 submitted by Km. Shreya Vidyarthi through Sri Pankaj Bhatia advocate, 45 Lawyers Chamber, High Court, Allahabad seeking permission to contest the case. As per order sheet permission to contest the appeal by Km. Shreya Vidyarthi was allowed vide order dated 10.10.07 after obtaining consent of the parties. A specific order to this effect has been passed by this Court on 18.5.09. According to Sri Ashok Vidyarthi, this application has been filed with ulterior motive to unsettle a settled controversy. The application is time barred also. Interestingly after signing a notarized agreement as a major on 23.1.09 Km. Shreya Vidyarthi through Rajendra Prasad Mishra by filing his affidavit cannot be permitted to take a turn around and make a false statement before the Court that Km. Shreya is a minor. A copy of the agreement duly signed by Km. Shreya Vidyarthi has been annexed with the objections. Moreover Km. Shreya has also been given a share in the property.
A rejoinder affidavit has also been filed by Km. Shreya Vidyarthi today rebutting the submission put forth by Sri Ashok Vidyarthi. This has been perused by the Court.
Learned counsel for the parties have been heard at length. This Court has already rendered a detailed judgement running in 28 pages on 12.8.09. It is not an exparte order. This Court had taken note of the written arguments submitted by the appellant, respondents including that of Km. Shrilekha Vidyarthi etc. Neither Sri Rajendra Prasad Mishra who now claims to be a guardian of a major lady and care taker of Km. Shreya Vidyarthi had pursued the case on earlier dates nor learned counsel who has appeared today made any submission at the time of the final hearing of the appeal. It is not that these persons were sitting on the fence and watching the proceedings and outcome of the case. The review petition has not been preferred by those counsel who had argued the case on the date of the final hearing. It was expected and as has been held by Hon'ble Apex Court in a case reported in AIR 1997 SC 1005- Tamil Nadu Electricity Board and another Vs. S.N. Raju Reddiar that a review petition should be argued by the same set of lawyers who had appeared in the original proceedings.
However, I have heard the learned counsel for the parties at length and perused the record. In the present case there appears to be no error apparent on the fact of record. The same material on the basis of which the judgment was rendered is still available. There is no discovery of a new and important fact, matter or evidence. This application has to be dealt in the light of the provisions contained in Order 47 Rule 1 C.P.C.. There is nothing in the application and affidavit which may persuade the Court to review and recall the judgment rendered on 12.8.09. No fresh material or document have been placed by the applicant to seek recall of the judgment and for a different opinion. It is noteworthy that this Court in its judgement rendered on 12.8.09 has taken care of the interest of Km. Shreya Vidyarthi, respondent No.8 who has been held to be entitled for 1/4th share in the property in the suit. It is not a case where a minor was deprived of his or her share in the property. There are no grounds to review/recall the judgement. Accordingly, the application is misconceived and the same is dismissed."
17. The present appellant, who was the 8th defendant in Suit No.630 of 1978 then preferred an appeal before the Apex Court being Civil Appeal No.3162-3163 of 2010. One of the specific ground taken before the Apex Court was that the appellant was a minor on the relevant date, and that the decree of the High Court was nullity as it had been passed against a minor, without complying with the requirement of Order XXXII Rule 3 CPC. This contention has been noticed in para 9 of the Apex Court's judgment dated 16.12.2015, passed in Civil Appeal No.3162-3163 of 2010, and is reproduced hereinafter:-
"9. Certain facts and events which had occurred during the pendency of the appeal before the High Court will require a specific notice as the same form the basis of one lime of the case projected by the appellant before us in the present appeal, namely, that the order of the High Court is an ex-parte order passed without appointing a legal guardian for the appellant for which reason the said order is required to be set aside and the matter remanded for a de novo consideration by the High Court."
(emphasis supplied)
18. The plea was examined with reference to the materials brought on record and the contention was repelled. The observations made by the Apex Court as are contained in para 10 to 14 are also reproduced hereinafter:-
"10. The first significant fact that has to be noticed in this regard is the death of Madhulekha Vidyarthi during the pendency of the appeal and the impleadment of the appellant as the 8th respondent therein by order dated 31.08.2007. This was on the basis that the appellant is the sole legal heir of the deceased Madhulekha. The said order, however, was curiously recalled by the High Court by another order dated 10.10.2007. The next significant fact which would require notice is that upon the death of her mother Srilekha Vidyarthi, the appellant-defendant herself filed an application for pursuing the appeal in which an order was passed on 16/18.05.2009 to the effect that the appellant is already represented in the proceedings through her counsel (in view of the earlier order impleading the appellant as legal heir of Madhulekha). However, by the said order the learned counsel was given liberty to obtain a fresh vakalatnama from the appellant which, however, was not so done. In the aforesaid fact situation, the High Court proceeded to consider the appeal on merits and passed the impugned judgment on the basis of consideration of the arguments advanced by the counsel appearing on behalf of the appellant at the earlier stage, namely, one Shri A.K. Srivastava and also on the basis of the written arguments submitted on behalf of the deceased Srilekha Vidyarthi. It is in these circumstances that the appellant has now, inter alia, contended that the order passed by the High Court is without appointing any guardian on her behalf and contrary to the provisions of Order XXXII Rules 3, 10 and 11 of the CPC.
11. Insofar as the merits of the appeal are concerned, the High Court took the view that on the facts before it, details of which will be noticed in due course, there was a joint family in existence in which the second wife Rama Vidyarthi had played a predominant role and that the suit property was purchased out of the joint family funds namely the insurance money and the advance received from the Pratap Press Trust, Kanpur. Insofar as the devolution of shares is concerned, the High Court took the view that following the death of Hari Shankar Vidyarthi, as the sole surviving male heir, the respondent-plaintiff became entitled to 50% of the suit property and the remaining 50% was to be divided between the two wives of Hari Shankar Vidyarthi in equal proportion. Srilekha and Madhulekha Vidyarthi, i.e. defendants 1 and 2 in the suit, as daughters of the second wife, would be entitled to share of Rama Vidyarthi, namely, 25% of the suit property. On their death, the appellant would be entitled to the said 25% share whereas the remaining 25% share (belonging to the first wife) being the subject matter of a Will in favour of her minor grand-children (sons of the respondent-plaintiff), the respondent-plaintiff would also get the aforesaid 25% share of the suit property on behalf of the minors. Accordingly, the suit was decreed and the order of dismissal of the suit was reversed.
12. The aforesaid order of the High Court dated 12.08.2009 was attempted to be recalled by the appellant-8th defendant by filing an application to the said effect which was also dismissed by the High Court by its order dated 24.11.2009. Challenging both the abovesaid orders of the High Court, the present appeals have been filed.
13. Having heard learned counsels for the parties, we find that two issues in the main arise for determination in these appeals. The first is whether the High Court was correct in passing the order dated 24.11.2009 on the recall application filed by the appellant and whether, if the appellant had really been proceeded ex-parte thereby rendering the said order untenable in law, as claimed, should the matter be remitted to the High Court for reconsideration. The second question arising is with regard to the order dated 12.08.2009 passed by the High Court in First Appeal No. 693 of 1987 so far as the merits thereof is concerned.
14. The detailed facts in which the appellant-8th defendant came to be impleaded in the suit following the death of Madhulekha Vidyarthi (defendant No. 2) and thereafter on the death of Srilekha Vidyarthi (defendant No. 1) has already been seen. From the facts recorded by the High Court in its order dated 24.11.2009 it is clear and evident that the appellant had participated in the proceeding before the High Court at various stages through counsels. Therefore, there is no escape from the conclusion that the order passed in the appeal was not an ex-parte order as required to be understood in law. The appellant was already on record as the legal heir of Madhulekha Vidyarthi (defendant No. 2) and was represented by a counsel. The High court had passed its final order after hearing the said counsel and upon consideration of the written arguments filed in the case. In its order dated 24.11.2009 the High Court has observed that full opportunity of hearing on merits was afforded to the appellant. Even before us, the appellant has been heard at length on the merits of the case. In these circumstances there can hardly be any justification to remand the matter to the High Court for a fresh consideration by setting aside the impugned order."
(emphasis supplied)
19. Other pleas urged on behalf of the appellant were duly considered and the appeals were dismissed on 16.12.2015. A review thereafter was preferred before the Apex Court on the ground that the issue of minority of appellant has not been examined. The review was also rejected on 15.3.2016 vide following orders:-
"These Review Petitions have been filed against the judgment dated 16th December, 2015 whereby the appeals were dismissed.
Delay condoned.
We have perused the Review Petitions as well as the grounds in support of the Review Petitions. In our opinion, no case for review of judgment dated 16th December, 2015 is made out. Consequently, the review petitions are dismissed."
20. In para 14 of the Apex Court's judgment it is clearly noticed that the decree of the High Court was not ex-parte, and that the appellant was already on record as the legal heir of Madhulekha Vidyarthi and was represented by a counsel. Claim of appellant, who admittedly had turned major by then, was considered by the Apex Court on merits also and her plea in opposition to the preliminary decree has been rejected. The issue of minority of appellant as being a ground to render the preliminary decree null and void therefore stands conclusively determined against the appellant by the Apex Court.
21. The issue which has already been considered by the Apex Court cannot be permitted to be reopened all over again in collateral proceedings. In Sunil Kumar Verma and others vs. State of U.P. and others [2016 (1) SCC 397] following observations made in para 20 to 23 by the Apex Court are reproduced:-
"20. In the obtaining factual matrix, we are disposed to think that it was absolutely inappropriate on the part of the High Court to go in search of ratio of the judgment rendered by the Single Judge on the earlier occasion, when the controversy had really been put to rest by this Court. The Division Bench, we are disposed to think, should not have entered the arena which was absolutely unwarranted. The decision rendered by this Court inter se parties was required to be followed in the same fact situation. When the factual matrix was absolutely luminescent and did not require any kind of surgical dissection, there was no necessity to take a different view. Needless to say, this kind of situation procrastinate the litigations and the litigants, as has been stated, though in a different context in Koppisetty Venkat Ratnam v.Pamarti Venkayamma [(2009) 4 SCC 244 : (2009) 2 SCC (Civ) 109] is extremely expensive and time-consuming.
21. In this regard, a few lines from Sundarjas Kanyalal Bhatija v. Collector[(1989) 3 SCC 396] is worth reproducing: (SCC p. 406, para 8) "8. ... One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority."
22. We have highlighted this aspect as we intend to ingeminate that this kind of unnecessary enthusiastic quest should be avoided. It is because it is contrary to the principles of judicial discipline. In this regard reference to Official Liquidator v.Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] would be apt. In the said ruling, it has been observed thus: (SCC p. 52, para 78) "78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system."
23. In view of the aforesaid analysis, we find no reason that the appellants herein should not reap the benefits of absorption and, accordingly, it is directed that they shall be absorbed by the State Government as per their seniority and be given the benefit of increments, within eight weeks hence. Needless to say, they will be entitled to their seniority as per the prevalent rules. If anyone has been retired from service, he shall get the retiral benefits inclusive of pension."
22. Learned Senior Counsel for the appellant has laid great emphasis upon an order of the Apex Court in Appeal No.3162-3163 of 2010, dated 4.4.2011, which reads as under:-
"These applications have been filed seeking discharge of the appellant as the guardian and next friend of the minor, namely; Shreya Vidyarthi. It is stated that the date of birth of the appellant is 22.9.1992 and therefore, she has attained the age of majority on 22.9.2010.
The averments made in the applications are however, controverted by the respondents. Learned counsel for the respondents submits that the alleged adoption of the appellant itself is doubtful, as the adoption deed was registered on 14th September, 1991 before the appellant was born.
In my opinion, it is not necessary to express any opinion on the merits of the controversy raised by the respondents for the purposes of disposal of the present applications. The applications are, therefore, allowed accepting for the time being that the statement made by the appellant are true and correct.
All the issues arising between the parties are left open."
23. The contention is that the date of birth of the appellant as 22.9.1992 has been accepted by the Apex Court, and that the issue of her minority at the time of decree has not been determined, is noticed only to be rejected. The Apex Court had noticed the contention of the appellant that her date of birth is 22.9.1992 and has attained majority on 22.9.2010. The order of the Apex Court was passed upon the application seeking discharge of appellant as guardian and next friend of appellant minor and no opinion on merits of the claim was made in the order. The appellant had also not brought on record the adoption deed, which is alleged by the respondents to be dated 14.9.1991, particularly as it questions the appellant's date of birth as 22.9.1992. All such issues, however, loose significance in view of the final judgment of the Apex Court wherein the issue of minority has been specifically dealt with and adjudicated against the appellant.
24. Coming to the various judgments relied upon by the Senior Counsel for the appellant, in support of the submission that a decree passed against a minor, without appointing a legal guardian and complying with the requirement of Order XXXII Rule 3 CPC, is a nullity, there is no issue on it as the proposition is well too settled to be questioned. However, these judgments have no applicability on the facts of the present case, in view of the fact that the plea has already been adjudicated upto the Apex Court, and negatived, and the same does not require consideration all over again.
25. In view of the discussions made and for the reasons recorded in the judgment of the Apex Court, the first point framed for consideration is answered against the appellant and it is held that the preliminary decree for partition drawn in the matter is not a nullity.
26. Turning to the second question, it would be appropriate to note that after the preliminary decree for partition was affirmed by the Apex Court, the court concerned has proceeded with taking of steps for preparing a final decree. A partition scheme accordingly was prepared by the Amin to which no objection has been filed by the appellant. The argument of Sri Verma that the objection filed under section 47 CPC has not been examined, or that the court has proceeded on an erroneous presumption that no objection under section 47 was filed, are also not tenable in law. The alleged objection filed before the executing court is Annexure-4 to the stay application filed in support of the appeal. After noticing the background facts it is stated in para 21 onwards that on the date of judgment by this Court on 12.9.2009, the appellant was a minor and the decree was nullity. This issue has rightly not been taken note of by the court below as the issue had already been addressed by the Apex Court upon an appeal preferred by the appellant herself. There is no objection to the partition scheme framed pursuant to the preliminary decree. The court below therefore was justified in endorsing the scheme of partition after observing that no objection to it had been filed. There is no illegality in the judgment dated 8.7.2016 directing the office to prepare scheme of partition and to draw the final decree. The consequential final decree has not been shown to be illegal for any other ground. The only ground of minority of appellant since has been decided against the appellant by the Apex Court, it is not open to be urged now. The argument that the order under challenge suffers from non application of mind must also fail. The second question posed for consideration is also decided against the appellant. No other point is pressed.
27. For the reasons recorded above, the present appeal fails and is dismissed with cost assessed at Rs.5000/-.
Order Date :- 5.3.2018 Ashok Kr./Anil (Ashwani Kumar Mishra, J.)