Gujarat High Court
Union vs Adam on 5 September, 2011
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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SA/21/2011 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No.21 of 2011
With
CIVIL
APPLICATION No.809 of 2011
In
SECOND APPEAL No.21 of 2011
=========================================
UNION
OF INDIA (TRANSPOSE AS PER ORDER 5/5/10 & 2 - Appellant(s)
Versus
ADAM
KHAMISHA BHAGAD & 1 - Defendant(s)
=========================================
Appearance:
DELETED
for Appellant(s) : 1,
MS CM SHAH, ASSISTANT GOVERNMENT PLEADER for Appellant(s): 2
- 3.
NOTICE SERVED for Defendant(s): 1,
MR AFTABHUSEN ANSARI
for Defendant(s): 1,
NOTICE UNSERVED for Defendant(s):
2,
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CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 03/08/2011
ORAL
ORDER
1. By this appeal under section 100 of the Code of Civil Procedure, 1908, the appellant - State of Gujarat has challenged the judgment and decree passed by the learned Additional District Judge, Fast Track Court No.3, Jamnagar, whereby he has dismissed the appeal preferred by the appellants herein and confirmed the findings given by the learned 2nd Joint Civil Judge (S.D.), Jamnagar on the issues No.1, 2 and 3 of Exh.17 in Regular Civil Suit No.587/1978.
2. The facts of the case stated briefly are that the respondent herein who is the original plaintiff had instituted a suit in the Court of the learned Civil Judge (S.D.), Jamnagar, being Regular Civil Suit No.587/1978 wherein he had stated that he was born at village Salaya, district Jamnagar, in the year 1949 and since his birth he was residing at village Salaya. His parents and his relatives were also born in India and were residing at Salaya. That the plaintiff got married at village Salaya on 23rd June, 1971 with Hanifa Kasam of Salaya and was residing at Salaya with his parents and wife. It was the case of the plaintiff that he is an Indian citizen by birth and is also of Indian domicile and that he has never relinquished his Indian citizenship and has never migrated to any other foreign country with the intention of renouncing his Indian citizenship nor has he attained the citizenship of any other country. It was further the case of the plaintiff that despite the fact that he was an Indian citizen at the time of the commencement of Constitution of India and since then he has continued to be a citizen of India and had not renounced his Indian citizenship and was not a foreigner nor had he ever attained the citizenship of Pakistan or any other country, the defendant No.3 had issued an order dated 15th January, 1972 whereby the plaintiff was treated as a foreigner and was ordered not to leave Porbandar without prior written permission of the defendant No.3 and in case of breach of the said order, the plaintiff was threatened that he would be prosecuted under section 14 of the Foreigners' Act, 1946. It was also the case of the plaintiff that he was in District Jail, Rajkot, and was undergoing imprisonment in connection with a criminal offence and that the subordinates of the defendant No.3 had threatened the plaintiff that he would be deported out of India after his release from jail as he is a foreigner. The plaintiff, therefore, instituted a suit in the court of the learned Second Joint Civil Judge, (S.D.) at Bhavnagar being Regular Civil Suit No.587 of 1978 alleging that there was every possibility that the defendants would deport him out of India no sooner than he is out of jail unless the defendants are restrained from doing so and prayed for a declaration that he is a citizen of India and that the defendants be restrained from deporting him.
3. The suit was resisted by the defendants by filing written statement interalia contending that the issue of migration and citizenship is required to be determined under section 9 of the Indian Citizenship Act, 1965 by the competent authority and till then the plaintiff is not entitled to the relief prayed for in the suit.
4. The trial court after considering the rival pleadings framed the following issues:-
Whether plaintiff proves that plaintiff is a citizen of India and permanent resident of India and he is not a foreigner?
Whether defendants prove that plaintiff had migrated to Pakistan renouncing Indian citizenship?
Whether this Court has jurisdiction to try the suit?
Whether plaintiff is entitled to get reliefs of declaration and injunction as prayed for?
What order and decree?
After appreciating the evidence on record, the trial court answered the issue No.1 in the affirmative and issue No.2 in the negative. Issue No.3 was decided in the affirmative whereas issue No.4 was decided in the negative. The trial court, accordingly, dismissed the suit of the plaintiff as being time barred.
5. Being aggrieved by the findings recorded by the trial court in relation to issues No.1, 2 and 3, the appellants - original defendants preferred an appeal before the Additional District Judge, Jamnagar who by the impugned judgment and decree dismissed the appeal and confirmed the findings recorded by the trial court. Being aggrieved, the appellants have preferred the present appeal by proposing the following questions, stated to be substantial questions of law:-
Whether in the facts and circumstances of the case and in view of section 9(2) of Citizenship Act, 1955 can question of citizenship be decided by the Civil Court?
Whether in the facts and circumstances of the case, the material placed by the present opponent like ration card etc can be taken into consideration for deciding citizenship in view of the procedure laid down under Rule 10 of the Citizenship Act, 1956?
Whether the Civil Court has jurisdiction in view of the illegal migrant determination by Tribunal Act, 1983?
Whether in the facts and circumstances of the case, when the learned Judge was pleased to dismiss the suit and once the suit was dismissed can the court give finding on other aspects?
Whether in the facts and circumstances of the case, the suit filed by the plaintiff being Regular Civil Suit No.587 of 1978 was barred by limitation?
6. Ms. C.M. Shah, learned Assistant Government Pleader, assailed the impugned judgment and decree by submitting that the courts below were not justified in deciding the question of citizenship which in view of the provisions of section 9(2) of the Citizenship Act, 1955 do not fall within the jurisdiction of the Civil Court. It was further submitted that in view of the Illegal Migration Determination by Tribunal Act, 1983, the Civil Court had no jurisdiction to decide the issues involved in the suit. It was further submitted that once the learned Judge has dismissed the suit as being time barred, it was not permissible for him to give findings on other issues.
7. From the facts noted hereinabove, it is evident that the suit instituted by the plaintiff came to be dismissed by the trial court by the judgment and decree dated 4th August, 1984. Against the findings recorded in the said judgment, the appellants preferred an appeal before the learned Joint District Judge, Jamnagar, who concurred with the findings recorded by the trial court and confirmed the judgment and decree passed by the trial court. Thus, it is apparent that the appellants herein are not aggrieved by the judgment and decree passed by the trial court as confirmed by the lower appellate court, but are only aggrieved by the findings recorded by the courts below on issues No.1, 2 and 3. In this regard, it may be germane to refer to the provisions of section 100 of the Code of Civil Procedure, 1908 which lays down that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Thus, the right to file a statutory appeal under section 100 CPC before the High Court is against a decree passed in appeal by any court subordinate to the High Court. As noted hereinabove, the appellants have not challenged the decree passed by the lower appellate court but have challenged only the findings recorded against the appellants - original defendants.
8. At this juncture, it may be germane to refer to certain decisions of the Supreme Court on the question as to whether an appeal is maintainable in a case where only the findings recorded in the judgement passed by the lower court are assailed without challenging the decree.
8.1 In Smt. Ganga Bai vs. Vijay Kumar and Others, (1974) 2 SCC 393, the Supreme Court was dealing with a controversy regarding the maintainability of the appeal before it. The court observed that there was a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. The court further observed that the provisions of section 96(1), section 100, section 104(1) and section 105(1) of the Code of Civil Procedure show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. The court accordingly held that the first appeal filed by the defendants No.2 and 3 therein was not maintainable as it was directed against a mere finding recorded by the trial court.
8.2 In Deva Ram and Another vs. Ishwar Chand and Another, (1995) 6 SCC 733, the Supreme Court was considering a plea regarding the effect of an adverse finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decided. The court held that it is provided in section 96 CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal from the decision of such court. So also, section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus, sine qua non in both the provisions is the 'decree' and unless the decree is passed, an appeal would not lie under section 96 nor would it lie under section 100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the 'orders' against which appeal would lie have been enumerated. Unless there is an 'order' as defined in section 2(14) and unless that 'order' falls within the list of 'orders' indicated in Order 43, an appeal would not lie. Placing reliance upon its earlier decision in the case of Smt. Ganga Bai vs. Vijay Kumar and Others (supra), the court held that an appeal does not lie against mere 'findings' recorded by the court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court.
8.3 In Banarsi and Others vs. Ram Phal, (2003) 9 SCC 606, the Supreme Court held thus:
8.
Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal.
However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal, Jatan Kumar Golcha v. Golcha Properties (P) Ltd.
and Ganga Bai v. Vijay Kumar.) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.
9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy.
Collector, Ahmednagar that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection -- both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.
10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding.The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent."
9. In the light of the principles enunciated in the above referred decisions, it is apparent that no appeal would lie under section 96 or section 100 of the Code of Civil Procedure against mere findings recorded by the trial court. An appeal lies only against a decree and not against a judgment. In the facts of the present case, the appellants have preferred the present appeal only against the findings recorded by the courts below and as such, the appeal itself is not maintainable as the same is directed only against findings and is not preferred against the decree of the lower appellate court confirming the judgment and decree passed by the trial court. In the light of the aforesaid discussion, without entering into the merits of the controversy, the appeal is dismissed as being not maintainable as the same is preferred against only the findings recorded by the courts below and not against the decrees passed by the lower appellate court as well as the trial court.
10. For the foregoing reasons, the appeal fails and is, accordingly, dismissed. Notice is discharged.
11. It is clarified that dismissal of the appeal shall not be construed as if the court has affirmed the findings recorded by the courts below.
Civil Application No.809/2011 In view of the fact that Second Appeal No.21 of 2011 itself has been dismissed by an order of even date, this application for stay does not survive and is accordingly rejected.
( Harsha Devani, J. ) hki Top