Rajasthan High Court - Jaipur
Sringar Kanwar (Smt.) Through Lrs. And ... vs Hari Singh Through Lrs. on 17 October, 2005
Equivalent citations: RLW2006(1)RAJ275, 2006(1)WLC51
Author: Jitendra Ray Goyal
Bench: Jitendra Ray Goyal
JUDGMENT Shiv Kumar Sharma, J.
1. This cluster of six appeals includes five DB Civil Special Appeals against the judgment and decree date March 4, 1987 of learned Single Judge whereby the first appeals bearing numbers 1/1983 and 27/1983 of Smt. Sringar Kanwar and Hari Singh were partly allowed and the decree of Trial Court dated November 18, 1982 was modified. The sixth Civil Misc. Appeal is preferred against the order dated December 7, 1987 by which defendant's application under Order 9 Rule 13 CPC, to set aside the ex parte decree dated November 18, 1982, was dismissed.
2. The litigation has a chequered history:
On October 12, 1959, the plaintiff Hari Singh (since deceased) filed a suit for declaration and possession against defendant Smt. Sringar Kanwar. It was inter alia stated in the plaint that Thakur Berisal Singh, husband of Sringar Kanwar, adopted Hari Singh on September 24, 1943 and executed a deed of adoption which was registered. Thakur Berisal Singh died on October 10, 1947 leaving behind ancestral immovable properties mentioned in the schedule annexed with the plaint. In the year 1954 Smt. Sringar Kanwar filed a suit for ejectment and rent against Hari Narain regarding the shop mentioned at No. 8 in the schedule. Hari Singh was impleaded in the suit. It was pleaded by Sringar Kanwar that she was owner of the shop and adoption of Hari Singh was illegal as Berisal Singh had made a will (Ex.Al) in her favour on May 14, 1947 and he had also executed agreement with the natural father of Hari Singh about postponement of right of Hari Singh. Hari Singh alleged that Berisal Singh could not execute any will as the property was ancestral. The suit filed by Sringar Kanwar against Hari Narain came up in Regular First Appeal No. 7/1959 before this Court and following order was passed on August 5, 1965:-
It would thus appear that Hari Singh's natural father Amar Singh had agreed that Berisal Singh and his wife Smt. Sringar Bai would retain full control of the whole of Berisal Singh's property, that Hari Singh would have no right to squander away that property and that he would become its full owner on Berisal Singh's death and the death of his wife in the same way as Berisal Singh was its owner in his life time.
3. Hari Singh claimed declaration to the effect that he was adopted son of Berisal Singh and he was owner of the properties mentioned in schedule he claimed possession of property against Smt. Sringar Kanwar and other defendants. Smt. Sringar Kanwar filed written statement denying adoption of Hari Singh and pleaded that after the death of Berisal Singh she was owner of the properties mentioned in the schedule. Initially the suit filed by Hari Singh was dismissed and vide order dated February 10, 1981 in appeal filed by Hari Singh the case was remanded back for decision on three issues.
4. After dismissal of the suit of Hari Singh, Prem Chand purchased a shop and Thadi from Sringar Kanwar through sale deed for a consideration of Rs. 14,999/-. At that time one Mathuradas tenant was in possession of shop and Thadi. After the purchase of property Prem Chand filed suit for ejectment against Mathuradas and after a long litigation Prem Chand was given the possession of the shop and Thadi.
5. Pursuant to the directions made by the High Court while remanding the suit of Hari Singh, the Additional District Judge No. 2, Jaipur City passed decree on November 18, 1982 against which first appeal No. 1/83 and 27/83 were preferred. Learned Single Judge on March 4, 1987 decided the appeals thus:-
(i) That Smt. Sringar Kanwar will have the right to enjoy the property, to collect the usufruct and to remain in possession of the property throughout her life time. She will have not right to alienate right or interest of Hari Singh in the said property. She will have also no right to waste or damage the property.
(ii) That the property which she has sold prior to the coming into force of the Hindu Succession Act shall be binding on Hari Singh and 50% share will be only in the property which was in existence on 17th June, 1956, the day on which the Hindu Succession Act came into force. All mortgages effected by Sringar Kanwar prior to 17th June 1956 shall also be binding on Hari Singh. Any sale, transfer, mortgage, gift or the transfer in any manner made by Smt. Sringar Kanwar on or after 17th June, 1956 shall not be binding on Hari Singh. All the transfer by way of sale, gift, mortgage or in any mode, effected by Sringar Kanwar divesting the property completely from the right of ownership are hereby declared null and void and shall not be binding against Hari Singh.
(iii) That the property shall be treated as a joint property with 50% share each of Hari Singh and Sringar Kanwar and shall remain in the ownership of both till the partition is effected.
(iv) Both the parties, namely Sringar Kanwar and Hari Singh will have the right to get the possession of the property from the strangers under the decree of this court and in case the possession is taken it shall be handed over to Sringar Kanwar with a condition that she will have the right to enjoy the property so taken over during her life time. She will have also the right to get the usufruct of the property but she will have no right to alienate the property and to waste or damage the property till her specific part of the property is determined by way of partition.
(v) The property which is in the possession of respondents Nos. 7 and 8 vide mortgage deed dated 16.1.49 and which has been purchased under auction sale dated 18th March, 1955 shall continue to be in the possession of the auction purchaser as a sole owner.
(vi) Both the parties will have the right to get the possession of the property from the respondents who are party in appeal No. 27/83 and whose transfers have not been recognised. If the property is in possession of the persons who are under the share of the respondents and whose transfers have not been recognised then also by applying the doctrine of lis-pendence the decree shall be executable against them.
(vii) The physical possession shall remain with Sringar Kanwar but the possession shall be construed as a constructive joint possession of both with a limitation that Hari Singh will have no right to enter the property and to disturb the enjoyment of Sringar Kanwar.
(viii) The property may be given by Sringar Kanwar on lease but the interest of both the parties should be safe-guarded so that in future there may not be any difficulty.
Both the appeals are disposed of accordingly. No order as to costs.
6. Against the judgment and decree dated March 4, 1987 of the learned Single Judge that the instant special appeals have been filed.
7. In special Appeal No. 88/87 preferred by defendant appellant Sringar Kanwar and 4 others against plaintiff Hari Singh a prayer has been made to set aside the judgment and decree dated March 4, 1987 of learned Single Judge and to dismiss the suit of plaintiff respondent holding that the defendant Sringar Kanwar was the absolute owner of property in dispute after coming into force Hindu Succession Act.
8. In special appeal No. 95/87 preferred by Dhanraj Karan Singh @ Bahadur Singh a prayer has been made to set aside judgment and decree dated March 4, 1987 of learned Single Judge as well as November 18, 1982 and to the extent of property described at Item No. 2 in Schedule (Ga) annexed to the plaint the suit of plaintiff be dismissed.
9. In special appeal No. 108/87 preferred by Vijay Narain against plaintiff Hari Singh and defendant Sringar Kanwar the prayer has been made to set aside the judgment and decreed dated March 4, 1987 of learned Single Judge as well as November 18, 1982 of Trial Court.
10. In special appeal No, 71/87 preferred by Prem Chand against plaintiff Hari Singh and Chandra Singh and prayer has been made to set aside the judgment and decree of learned single Judge dated March 4, 1987. It was also prayed that while dismissing the suit of plaintiff respondent Hari Singh a direction be issued that defendant Sringar Kanwar is absolute owner of the property after coming into force the Hindu Succession Act.
11. In special appeal No. 13/88 preferred by Ashok Kumar against plaintiff Hari Singh the prayer has been made to set aside the judgment and decrees of learned Single Judge and trial Judge. It was also prayed to dismiss the suit of plaintiff.
12. The Misc. Appeal No. 33/88 preferred by Gopal Singh against Hari Singh and Sringar Kanwar a prayer was made to allow the application under Order 9 Rule 13 CPC to set aside the exparte judgment and decree dated November 18, 1982 and the order dated December 7, 1987 and a direction was also sought in the name of Trial Court to decide the suit afresh in accordance with rules.
13. We have heard the submissions canvassed before us by the learned counsel for the parties.
14. Following meaningful questions emerge in the instant matters:-
(i) Whether after coming into force of Section 14(1) of the Hindu Succession Act, 1956 Smt. Sringar Kanwar became full owner of the property and she had right to alienate the property by will or any other manner?
(ii) Whether Smt. Sringar Kanwar became the owner of the property by virtue of will dated May 15, 1947 executed by Thakur Berisal Singh in her favour?
(iii) After having not invoked the provisions contained in Order 41 Rule 26A of CPC, whether the defendant appellant Gopal Singh had right to get the exparte decree set aside under Order 9 Rule 13 CPC?
15. Having carefully scanned the material on record we notice that on December 24, 1943 Thakur Berisal Singh, holder of the ancestral properties in the city of Jaipur, adopted Hari Singh as his son and executed a registered deed of adoption (Ex. 15). On the date of adoption Thakur Berisal Singh was the sole surviver Coparcener with his wife Sringar Kanwar as member of Hindu Undivided Family having various ancestral properties and with the adoption Hari Singh became a Coparcener with Thakur Berisal Singh in the Hindu Undivided Family. On January 3, 1944 Berisal Singh executed a gift deed in favour of Chandra Singh in respect of the ancestral properties, mentioned at Sr. No. 2 of Schedule Ga of the plaint instituted later by Hari Singh. On May 14, 1947 Thakur Berisal Singh executed a registered will (Ex.Al) in respect of part of the ancestral properties in favour of Sringar Kanwar, Chandra Singh and Gopi singh. On October 10, 1947 Thakur Berisal Singh died leaving behind him his adopted son Hari Singh and his widow Smt. Sringar Kanwar.
HINDU WIDOW'S RIGHT TO PROPERTY IN BRITISH INDIA AND THEREAFTER
16. Before adverting to Section 14 of the Hindu Succession Act 1956 (for short '1956 Act') we deem it appropriate to consider the position of Hindu widow in British India. As per Mulla's Hindu Law the Sapindas would succeed in the following order:-
Son, grand son and great grand son and after April 14, 1937, when Hindu women's right to property Act, 1937 came into force, a widow would take the same share as a son. The widow of a predeceased son would inherit in the like manner as a son, if there is no son surviving of such predeceased son; and in like manner as a son's son, if there is surviving a son or son's son of predeceased son. The same rule was to apply mutatis mutandis to the widow of a predeceased son.
17. Having scanned the relevant statutory provisions, we notice that the Jaipur Legislative Council promulgated the Hindu Women's rights to property Act, 1947 which received the assent of his Highness the Maharaja on September 24, 1947. As per Section 1(3), this Act had to come into force at once. This Act was however published in the Jaipur Gazette on November 1, 1947. In order to adjudge as to from which date the Act came into force, we perused Jaipur General Clauses Act, 1944. Section 5(1) of Jaipur General Clauses Act, 1944 provides that "where any Act is not expressed to come in operation on a particular day then it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of His Highness the Maharaja is first published in the Jaipur Gazette, and if it is any other Act, on the day on which it is first published as on Act in the Jaipur Gazette. We thus find that in view of Section 5(1) the Hindu Women's rights to property Act, 1947, came into force on November 1, 1947 when it was published in Jaipur Gazette and on the date of death of Thakur Berisal Singh i.e., on October 10, 1947 the Act was not in force in the territory of Jaipur State. Thus as per order of succession among Sapindas the entire ancestral property of Thakur Berisal Singh was inherited by Hari Singh and not by Sringar Kanwar widow of Thakur Berisal Singh. A close look at the Adoption Deed demonstrates that on adoption Hari Singh had to live with Thakur Berisal Singh as his real son to serve and obey him. Pursuant to the directions of the adoption deed Hari Singh, a minor, after the death of Thakur Berisal Singh continued to live in the ancestral property left by Thakur Berisal Singh along with and under the guardianship of his adoptive mother Sringar Kanwar, who executed a registered Power of Attorney in her capacity as guardian of Hari Singh for the proper management of the property left by Thakur Berisal Singh. On attaining the age of majority. Hari Singh started recovering the rent from the tenants and thereby certain disputes arose between Hari Singh and Sringar Kanwar. It appears that Hari Singh filed a suit against Sringar Kanwar and other persons seeking declaration that Hari Singh was adopted son of Thakur Berisal Singh and the gift deed dated January 3, 1944 and will dated May 14, 1947 in respect of the parts of ancestral property made by Thakur Berisal Singh to be void and also against the alienees of Sringar Kanwar and tenants for possession. The suit filed by Sringar Kanwar against the tenant Hari Narain was finally decided by the High Court on August 5, 1965 wherein the High Court interpreted the deed of adoption of Hari Singh.
18. Learned Single Judge in the impugned judgment after discussing the provisions of sub Section 1 of Section 14, explanation thereto and Sub-section 2 of Hindu Succession Act, 1956 (herein after to be referred as '1956 Act') observed thus:-
There was no pre-existing right in the widow at the time of adoption. Under this settlement, the right to enjoy the property during the life time was created in favour of the widow for the whole property, thereby restricted the rights of the adopted child in the matter of enjoyment of the property. Apart from this, this court has also held that the widow had the life interest in the matter of enjoyment of the property... the property remained with the widow and had the character which was there at the time when she got the possession of the property under the settlement deed of 1943 Ex.15. This property has not come in the hands of the widow in lieu of maintenance or any other way and it has come in the hands of the widow under an agreement which was executed by the natural father at the time of adoption of Hari Singh by Thakur Berisal Singh.
19. It was further held that the property which got sold to defendant No. 7 by Sringar Kanwar prior to coming into force of Hindu Succession Act, because of legal necessity, was held valid. As regards the alienation made by Sringar Kanwar during the pendenancy of the suit filed by Hari Singh on October 12, 1959 and thereafter all hit by lis pendenance and were not saved and set aside and the direction was given for taking possession from them and their alienees whosoever may be. Learned Single Judge further upheld the decision of lower court declaring the gift deed dated Januaary 3, 1944 as well as the will dated May 14, 1947 as null and void because the same were in respect to the part of the ancestral property, which Thakur Berisal Singh, after the adoption deed on December 24, 1943, could not make. After holding the arrangement as made in the adoption deed dated December 24, 1943 (Ex.15) being resjudicata, it was indicated that the property had not come into the hands of the widow in lie of 'maintenance or any other way and that it had come into the hands of the widow under an arrangement which was executed by natural father at the time of adoption of Hari Singh.
RIGHTS OF FEMALE HINDU UNDER SECTION 14 OF HINDU SUCCESSION ACT, 1956
20. Since the determination of questions involve in these appeals relate to the interpretation of Section 14 of the 1956 Act, it would be appropriate to scan the said section that reads as under:-
14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation : In this Sub-section "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
21. A look at the scheme of 1956 Act demonstrates that it is a codifying enactment which has made far reaching changes in the structure of Hindu Law of inheritance and succession. The Act confers upon Hindu female full rights of inheritance and sweeps away the traditional limitations on her power of dispositions which were regarded under the Hindu Law as inherent in her estate.
22. Learned counsel appearing for Sringar Kanwar placed reliance on V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944. A look at para 10 of the said judgment reveals that under the compromise Tulasamma was allotted the schedule properties but was to enjoy only a limited interest therein with no power of alienation at all. According to the terms of the compromise the properties were to revert to the plaintiff after the death of Tulasamma. Subsequently Tulasamma continued to remain in possession of the properties even after coming into force of 1956 Act. In para 72 of the said judgment it was stated that the compromise by which the properties were allotted to Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, therefore, the case of Tulasamma was taken out of the ambit of Section 14(2) and was declared squarely within Section 14(1) read with the explanation thereto. In our opinion the ratio indicated in V. Tulasamma's case is not applicable to the facts of the instant matter. As already noticed the dispute having arisen between Hari Singh and Sringar Kanwar, the deed of adoption was interpreted by this Court on August 5, 1965, wherein this court interpreting the later part of the document came to the opinion that any arrangement even if made by the adoptive father with regard to the rights in the property with the consent of natural father went beyond enjoyment of the property and extinguished the rights of the adopted son, the same were bad in law. While interpreting the adoption deed this court observed that Sringar Kanwar would retain full control over the whole property of Berisal Singh and that Hari Singh would not have any right to squander away that property and that he would be full owner on Berisal Singh's death and the death of his wife. It was further held that such an arrangement would not be said to be an incompatible with Hari Singh's position as an adopted son. It was further held that under such arrangement, while Sringar Kanwar enjoying the property during her life time, could not make any alienation of the property so as to deprive Hari Singh of any part of the property which he may get on death of Sringar Kanwar in view of the arrangement so made, as only Hari Singh's rights were postponed until the death of Sringar Kanwar. This finding was already held to be resjudicata in the judgment dated February 10,1981, Hari Singh v. Sringar Kanwar 1981 RLW 190 and the same finding has been given by learned Single Judge in the impugned judgment under appeals.
23. Since the interpretation of deed of adoption Ex.15 has been held to be resjudicata and no property was allotted to Sringar Kanwar in lieu of right of maintenance therefore no question of conferring upon her anything to enjoy the property in view of any pre-existing right of maintenance or any right whatsoever therein. On death of Thakur Berisal Singh the entire ancestral property devolved upon Hari Singh and therefore, if there was any right to maintenance by Sringar Kanwar she could have against Hari Singh who was the minor even at the time of death of Thakur Berisal Singh on October 10, 1947 and had been continuing to live and there was no arrangement after the death of Berisal Singh. Thus it cannot be said that Sringar Kanwar was enjoying the ancestral property in lieu of maintenance or in view of any pre- existing right of maintenance.
24. In Bhura v. Kashiram , the only controversy between the parties was whether the will conferred only a limited estate or an absolute estate on Sarjabai in so far as the suit property was concerned. Their Lordships of the Supreme Court on a true construction of the will observed thus:-
The limited estate conferred upon Sarjabai by the will (Wp.4) could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in Sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to " any property acquired by way of gift or under a will or by any other instrument prescribing a restricted right in such property. In view of our finding that the will (Ex.P-4) itself prescribed a restricted right or life estate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act, 1956.
25. In Rajgopal Chettiar v. Hamasaveni Ammal , the Apex Court held that testator's intention to give absolute right in the property to his daughter is negatived by a clear mention in the will that after his daughter the property shall be intimately go to her male children. There was no question of mentioning this in case the intention of the testator was to give the properties absolutely in favour of his daughter and not merely life interest.
26. As already noticed that it was only with a view with the express intention that Hari Singh may not squander away the property that Thakur Berisal Singh arrogated to himself the rights of full control over the property during his life time in himself as well as also during the life time of his wife Sringar Kanwar and that the same had been held by High Court that the same gave only a life interest in the ancestral property to preserve the same to be given to Hari Singh on the death of both of them absolutely with all the rights which Thakur Berisal Singh had therein. On October 10, 1947 on death of Thakur Berisal Singh the entire coparcenary property as per Mitakshara law devolved on Hari Singh. On the said day the provisions of Hindu Law of Mitakshara were not modified by the provisions of the Women's Right to Property Act, 1947 in the territory of Jaipur State as the same came to, be in force in State of Jaipur only on November 1, 1947, therefore there was no devolution of property on Sringar Kanwar. Thus Section 14 of 1956 Act is of no help to Sringar Kanwar.
27. It is also evident from the material on record that Sringar Kanwar had filed a suit for partition during her life time. But during pendency of the suit she died. In view of the settled legal position that Thakur Berisal Singh could not either gift or make will of the property it goes as a corollary thereof that Sringar Kanwar had no right to make any gift or execute will of the property as no property could be said to be vested in Sringar Kanwar prior to her death.
28. As regards the appeals Filed by alienees in whose favour Thakur Berisal Singh had made the gift or will which has been declared invalid in accordance with law and they did not choose to file any first appeal against the decision of the Trial, Court after the remand, the instant special appeals in our opinion are not maintainable. The appeals preferred by alienees of Sringar Kanwar in regard to transfer of properties during the pendency of the suit filed by Hari Singh against her, are hit by doctrine of Us pendence, therefore, cannot operate against the legal representatives of Hari Singh. We are of the view that whatever rights they obtained from Sringar Kanwar lapsed with her death and did not survive after her death.
IF NO DATE IS FIXED BY THE APPELLATE COURT IN THE ORDER OF REMAND AS PER THE MANDATE OF ORDER 41 RULES 26A CODE OF CIVIL PROCEDURE, WHAT OPTIONS ARE LEFT WITH THE LITIGATING PARTIES:-
29. That takes us to the Civil Misc. Appeal No. 33/1988 which was filed against the order dated December 7,1987 whereby the application of the defendant appellant Gopal Singh under order 9 Rule 13 CPC seeking setting aside ex parte decree and judgment dated November 18, 1982 was dismissed. It appears from the record that the Division Bench of the High Court decided the appeal on February 10, 1981 and remanded the matter to the Court of Additional District Judge No. 2, Jaipur City, Date for appearance of parties was however fixed. The matter was taken up in the court of Additional District Judge No. 2, Jaipur City on March 18, 1981 and April 9, 1981 was fixed for appearance of the counsel for parties. In the order sheet it was ordered that parties be informed through their advocates. It also appears that ex parte decree was passed on November 18, 1982 and application for setting aside ex parte decree was filed on January 12, 1983. We have heard Mr. N.K. Maloo learned counsel and scanned the authorities cited by him.
30. Having weighed the material on record we notice that the suit was filed by Hari Singh on October 12, 1959 against Sringar Kanwar and 53 others. Defendant No. 3 was Bhanwar Bai (Grand mother of defendant appellant Gopal Singh) and defendant No. 24 was Gopal Singh. On a preliminary issue the suit was dismissed on March 2, 1966. First Appeal No. 141/69 preferred by Hari Singh against the judgment and decree dated March 2, 1966 was allowed on February 10, 1981 and the case was remanded to the lower court with a direction to decide the matter afresh. The defendant appellant Gopal Singh or his counsel did not appear before the Trial Court and ex parte decree came to be passed. The application seeking setting aside of ex parte decree was filed on various grounds. It was stated that since High Court did not fix date of appearance, the appellant had no knowledge of date of hearing.
31. On behalf of the respondents it was argued that since Gopal Singh appeared through his counsel in the first Appeal No. 141/69 preferred by Hari Singh and had knowledge that the High Court remanded the appeal therefore it was the duty of Gopal Singh to appear before the lower court to seek further instructions in the matter.
32. Out of many authorities cited by Mr. Maloo learned counsel, we would like to refer Radha Vallabh v. Mahadev , Koruprolu Atchaya v. Bideshi Raghuram Singh and RSEB v. Firm Suratgarh CC & P Factory 1984 RLW 250. In our opinion ratio indicated in these cases is not applicable to the facts of instant matter. In Radha Ballabh (supra), prior to the High Court remanded the case, substitution of party was already made in appeal, under these circumstances it was held that on remand the Trial Court itself had to see that the names of dead persons ought to have been removed and the persons substituted ought to have been brought on record. Since the persons already substituted were not served with the notice, it was held that the decision of court was not proper. In Koruprolu Atchaya (supra), it was observed that after transfer and withdrawal of suit it was necessary to issue notice to the parties or their counsel. In RSEB v. Firm Suratgarh (supra), it was held that the parties must be given proper opportunity of hearing before their cause is decided.
33. At this juncture reference of order 41 Rule 26A of the Code of Civil Procedure appears necessary. This provision was incorporated by CPC (Amendment) Act 104 of 1976 and was made effective from February 1, 1977. This rule requires the Appellate Court, while remanding a case to fix a date for the appearance of the parties before the lower so as to avoid delay that may be caused by the issue of further notice: On February 10, 1981 when the case was remanded by the High Court without following the mandate of order 41 Rule 26A, the counsel for the parties ought to have brought to the notice of High Court the provisions of order 41 Rule 26A and made a request to fix a date for appearance in the lower court. Having not invoked the provisions of order 41 Rule 26A the defendant appellant Gopal Singh is now estopped from pleading that after remand it was incumbent on the court of Additional District Judge No. 2, Jaipur City to issue fresh notice for appearance of the parties. In our opinion after incorporation of order 41 Rule 26A fresh notices to the parties on remand of the case, were not required to be issued.
34. Since defendant appellant Gopal Singh was party in first appeal No. 141/69 and appeared through his counsel and had knowledge of remand order dated February 10, 1981 of the High Court, the application moved by him under order 9 Rule 14 CPC was rightly dismissed by the lower court. Mr. Maloo, learned counsel assailed the order of the court below from various other angles but we find no merit in the submissions in view of the fact that defendant appellant Gopal Singh despite knowledge of High Court's order of remand, did not choose to invoke the provisions contained in Order 41 Rule 26A and slept over his rights for the reasons best known to him. Undoubtedly it was for the High Court to fix the date for appearance of the parties in the lower court but if provisions of Order 41 Rule 26A escaped attention, the learned counsel being officers of the court, ought to have rendered proper assistance in bringing the said provision to the notice of the High Court.
35. For the above reasons we see not ground to interfere. All the six appeals accordingly stand dismissed without any order as to costs.