Punjab-Haryana High Court
Abdul Zalil vs Ismail @ Israil And Others on 10 January, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Saluja Mukesh Kumar
RSA NO.239 of 1991 and another 1 2014.02.21 12:21
I attest to the accuracy and
integrity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
RSA NO.239 of 1991 (O&M)
Date of decision:24.1.2014
Abdul Zalil
...Appellant
Versus
Ismail @ Israil and others
...Respondents
Civil Revision No.2104 of 1993
Abdul Ajij
...Petitioner
Versus
Ismail @ Israil and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.C.B.Goel, Advocate for the appellant in
RSA No.239 of 1991 and for respondent No.5 in
CR No.2104 of 1993.
Mr.S.D.Bansal, Advocate for the petitioner in
CR No.2104 of 1993 and for respondent No.5
in RSA No.239 of 1991.
RAMESHWAR SINGH MALIK, J.
The present regular second appeal (Abdul Zalil v. Ismail @ Israil and others) as well as Civil Revision No. 2104 of 1993 (Abdul Ajij v. Ismail @ Israil and others) are proposed to be decided together as both matters pertain to the same suit property and were ordered to be heard together vide order dated 11.1.2005. However, for the facility of reference, facts are being culled out from RSA No.239 of 1991.
Saluja Mukesh KumarRSA NO.239 of 1991 and another 2 2014.02.21 12:21 I attest to the accuracy and integrity of this document Vendee has come in appeal against the judgment of reversal dated 10.8.1990 passed by the learned Additional District Judge, Gurgaon, whereby modifying the decree of learned trial Court, suit of the plaintiff- respondent was decreed in toto for possession by way of specific performance. Civil Revision is directed against the order dated 9.6.1993 passed by the learned executing court dismissing the application of the decree holder, whereby the same decree was being sought to be executed which is under challenge in the appeal.
Brief facts of the case are that plaintiff Abdul Ajij entered into an agreement to sell dated 28.2.1985 Ex.P1 with Ismail @ Israil-defendant No.1 through his general power of attorney, Khurshid Ahmad-defendant No.2. Land measuring 48K-15M, being ½ share of 97K-11M was sought to be purchased by the plaintiff for an amount of Rs.70,000/-. However, defendant No.1 executed sale-deed dated 1.3.1985 regarding land measuring 35K-12M out of the above-said land measuring 48K-15M in favour of Abdul Zalil-defendant No.5. DefendantNo.1 also executed another sale- deed dated 4.3.1985 in favour of Smt.Fajri and Yamin-respondents. Plaintiff filed the suit for possession by way of specific performance.
Having been put to notice, defendants appeared and filed their written statements controverting the allegations of the plaintiff. Dismissal of the suit was prayed for.
On completion of pleadings of the parties, following issues were framed by the learned trial Court:-
"1. Whether defendants Nos. 1 and 2 entered into an agreement of sale of the agricultural land dated 28.2.85 in favour of the plaintiff and if so on what terms and conditions? OPP Saluja Mukesh Kumar RSA NO.239 of 1991 and another 3 2014.02.21 12:21 I attest to the accuracy and integrity of this document
2. Whether plaintiff paid any earnest money and if so to what amount? OPP
3. Whether plaintiff has been and is still ready and willing to perform his part of the contract? OPP
4. Whether sale made by deft. Nos. 1 and 2 in favour of defts. Nos. 3 to 5 are illegal, null and void, as alleged? OPP
5. Whether plaintiff has no locus standi to file this suit? OPD (1&2)
6. Whether agreement of sale is result of fraud and mis- representation, as alleged? OPD (1 & 2)
7. Whether suit is not maintainable in the present form? OPD (1&2)
8. Whether suit is bad for mis-joinder of cause of action and mis-joinder of parties? OPD (1 &2)
9. Whether suit is collusive" OPD (5)
10.Whether plaintiff is not entitled to the decree of specific performance, as alleged in preliminary objection of written statement of defendant No.5? OPD (5).
11.Whether plaintiff is barred by waiver, abandonment and latches? OPD (5).
12.Whether defendants Nos. 3 and 4 are bonafide purchasers for a valuable consideration and without knowledge? OPD (3 & 4)
13.Whether suit is not properly valued for the purpose of court fees and jurisdiction? OPP (3&4)
14.Relief."Saluja Mukesh Kumar
RSA NO.239 of 1991 and another 4 2014.02.21 12:21 I attest to the accuracy and integrity of this document To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. However on behalf of the defendants, evidence was led only by defendants No.1 and 2 who closed their evidence on 6.2.1990. On the same day, learned counsel for defendants No.3 and 4 as well as defendant No.5 withdrew from the case, pleading no instructions. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court declined the relief of specific performance and the suit was partly decreed for alternative relief of recovery for the amount of sale consideration, vide judgment and decree dated 14.2.1990.
Since the defendants were not feeling aggrieved, they did not file any appeal. However, plaintiff filed the appeal seeking modification in the decree of learned trial Court pressing for granting the relief of specific performance. The learned Additional District Judge, Gurgaon while issuing notice vide order dated 20.3.1990, to defendants-respondentsNo.1 and 2 in the appeal before it, for 20.4.1990 stated that other respondents need not to be summoned as they were ex parte in the trial. Thus, the appeal of the plaintiff was allowed by the learned appellate court without issuing notice to the vendees-defendants by passing the impugned judgment and decree dated 10.8.1990. Hence, this appeal at the instance of appellant-defendant No.5.
Learned counsel for the appellant contends that since the impugned judgment and decree were passed at the back of the appellant even without issuing notice to him, the same were not sustainable in law. Relying upon the judgment of this Court in Mohinder Singh and others v. Karnail Singh and others, 2002(1) PLR 689, he prays for setting aside the Saluja Mukesh Kumar RSA NO.239 of 1991 and another 5 2014.02.21 12:21 I attest to the accuracy and integrity of this document impugned judgment and decree by allowing the present appeal. He also submits that the since revision petition was wholly misconceived, the same may be dismissed.
Per contra, learned counsel for the respondents vehemently contended that in view of the Full Bench judgment of this Court in Mohan Masih v. Smt.Bashiro and others, (1988-2) PLR 138, no notice was required to be issued by the learned Additional District Judge, Gurgaon, to those defendants-respondents, who were ex parte before the learned trial Court. He prays for dismissal of the appeal. He also submits that since the impugned order dated 9.6.1993 passed by the learned executing court was patently illegal, the same may be set aside by allowing the revision petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant appeal deserves to be allowed, whereas Civil Revision is liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter.
Under the peculiar facts and circumstances of the case, following substantial question of law arises for consideration of this Court:-
(i) Whether the approach adopted by the learned appellate court, while not issuing notice to the defendants-respondents No. 3 to 5 in the appeal before it, on the ground that they were ex parte before the trial Court, was patently illegal and contrary to the basic rule of natural justice, particularly when the suit was going to be decreed in toto against defendant Nos. 3 to 5 reversing the judgment of the learned trial Court? Saluja Mukesh Kumar
RSA NO.239 of 1991 and another 6 2014.02.21 12:21 I attest to the accuracy and integrity of this document It is matter of record that on 6.2.1990, learned counsel for defendants No. 3 and 4 as well as learned counsel for defendant No.5- appellant herein, withdrew from the case for want of instructions. However, the learned trial Court declined the relief of specific performance to the plaintiff-respondent. Operative part of the judgment dated 14.2.1990 passed by the learned trial Court, read as under:-
"Due to my findings on the issues under adjudication I hereby decree the suit of the plaintiff with costs and pass a decree for recovery of Rs.70,000/- in his favour. In view of section 10(b) of the Specific Relief Act the Court is reluctant to use the discretion of Specific Performance of the contract in favour of the plaintiff as pecuniary compensation would afford adequate relief to the plaintiff and a decree for specific performance would result in disadvantage to the defendants Nos. 3 to 5 who are bonafide purchasers for consideration. Let decree sheet be drawn and the file be consigned to record room."
Since defendants No.3 to 5 did not feel aggrieved against the above-said judgment and decree dated 14.2.1990, they did not file any appeal. However, it was the plaintiff who filed his appeal before the learned appellate court for the relief of specific performance instead of recovery of amount of earnest money. When the appeal came up for hearing on 20.3.1990, the learned Additional District Judge passed the following order:-
"Received by assignment. Be registered. Heard. Admitted. Respondent Nos. 1 and 2 be summoned for Saluja Mukesh Kumar RSA NO.239 of 1991 and another 7 2014.02.21 12:21 I attest to the accuracy and integrity of this document 20.4.90 for which date, trial court record be summoned. Other respondents need not be summoned as they were ex parte in the trial court."
The appeal of the plaintiff was allowed and his suit for specific performance was decreed. The operative part of the judgment dated 10.8.1990 passed by the learned Additional District Judge, Gurgaon, reads as under:-
".......Therefore, the relief clause of the Ld. Trial court is modified to the extent that the plaintiff's suit for specific performance of the contract is decreed, with costs. File be consigned to the record room."
A combined reading of the operative part of the both the judgments reproduced above, would make it crystal clear that defendants No. 3 to 5 including the present appellant, who was defendant No.5 before the learned trial Court, were fully justified to be complacent because they were not feeling aggrieved against the judgment and decree passed by the learned trial Court. Since they were not feeling aggrieved against the judgment and decree passed by the learned trial Court, they were also not required to follow the appeal before the learned appellate court until and unless they were called upon to defend themselves. However, the learned appellate court reversed the judgment of the learned trial Court, decreeing the suit of the plaintiff in toto granting relief of specific performance, which was denied by the learned trial Court and that too without even issuing notice to those defendants-respondents who were going to be adversely affected. Having said that, this Court feels no hesitation to conclude that the learned appellate court committed patent illegality thereby violating the Saluja Mukesh Kumar RSA NO.239 of 1991 and another 8 2014.02.21 12:21 I attest to the accuracy and integrity of this document golden rule of audi alteram partem, therefore, the impugned judgment and decree cannot be sustained.
The argument raised by the learned counsel for the respondents has been found without any merit and the same is liable to be rejected. The order passed by the Hon'ble Full Bench in Mohan Masih's case (supra), being a short one, is being reproduced and reads as under:-
"Notices could not be served on the parties as it is reported that they are not living on the addresses given earlier in the petition. However, we do not think it necessary to delay this matter any further as the respondent was ex-parte in the Court below and there was no need for actually serving the respondent again. Accordingly, the service of the notices is dispensed with.
2. The finding of the learned Additional District Judge is that the respondent was living in adultery with one Kal Masih and that there was no collusion between the husband and wife. Accordingly, the decree of dissolution of marriage by divorce granted by the Additional District Judge is confirmed."
A bare perusal of the above-said short order passed by the Hon'ble Full Bench would show that service on the respondent was dispensed with because the Hon'ble Full Bench was intending to confirm the decree under reference. Under these peculiar facts and circumstances, it was thought appropriate to dispense with the service on the respondents who were ex parte in the court below. In this view of the matter, it can be safely concluded that the above-said judgment passed by the Hon'ble Full Bench of this Court is not applicable to the fact situation of the present case. Saluja Mukesh Kumar RSA NO.239 of 1991 and another 9 2014.02.21 12:21 I attest to the accuracy and integrity of this document On the other hand, the above-said view taken by this Court finds support from the judgment of the Hon'ble Supreme Court in Hanumant Singh v. Kiran Kumari and others, 2012 (1) RCR (Civil) 821 as well as four judgments of this Court in M/s Interstate Finance (P) Ltd. v. Darminder Kumar and others, 2010 (3) RCR (Civil) 31, Mohinder Singh and others v. Karnail Singh and others, 2002(1) PLR 689, Roshan Lal and others v. Kewal Singh and others, 2008(1) RCR (Civil) 679 and Jaswant Singh and others v. Mohinder Kaur (dead) through her LRs (Civil Revision No.3607 of 1986) decided on 8.1.2014.
Since this Court had the occasion to deal with similar issue in Jaswant Singh's case (supra), following the law laid down by the Hon'ble Supreme Court in Hanumant Singh's case (supra) and by this Court in Roshan Lal's case (supra), it would be appropriate to reproduce the relevant part of only the judgment dated 8.1.2014, for the sake of brevity. The relevant observations made in the judgment dated 8.1.2014 are as under:-
"Whether it is an application under Order 9 Rule 13 CPC or an appeal before the appellate court or an application under Section 151/152 CPC, as in the present case, or an application under Order 41 Rule 14 (3) CPC or any other similar application under any other provisions of law, it would always be mandatory for the court to issue notice and hear the other side before passing any order adversely affecting rights of other parties. Any order passed without issuing notice to the would be affected party, would be an order without jurisdiction, being unconstitutional and violative of the very doctrine of Audi Alteram Partem. Thus, answer to the abovesaid second Saluja Mukesh Kumar RSA NO.239 of 1991 and another 10 2014.02.21 12:21 I attest to the accuracy and integrity of this document substantial question of law is and has to be in favour of the petitioners and against the respondents.
The view taken by this Court also finds supports from the judgment of the Hon'ble Supreme Court in Hanumant Singh Vs. Kiran Kumari and others, 2012 (1) RCR (civil) 821 as well as the judgments of this Court in M/s Interstate Finance (P) Ltd. Vs. Darminder Kumar and others 2010 (3) RCR (civil) 31 and Roshan Lal and others Vs. Kewal Singh and others, 2008 (1) RCR (civil) 679. The relevant observations made by the Hon'ble Supreme Court in Hanumant's case (supra), which can be gainfully followed in the present case, read as under:-
"Ms. Shobha, learned counsel appearing for Mrs. Kiran Kumari and other respondents fairly submitted that the impugned order was passed without issuing notice to the respondents in the appeal. We are amazed as to how the appeal was allowed without issuing notice of the respondents. Consequently, wer are constrained to set aside the impugned order dated 3rd December, 2010 passed by the learned Single Judge and remit the matter to the High Court.
5. The learned Single Judge is directed to decide the appeal do novo after hearing both the parties. Since the impugned order has been set aside by us, the First Appellate Court would not proceed in the matter in pursuance to the directions passed by the learned Single Saluja Mukesh Kumar RSA NO.239 of 1991 and another 11 2014.02.21 12:21 I attest to the accuracy and integrity of this document Judge."
The observations made by this Court in Darminder Kumar's case supra), read as under:-
"As per Order 9 Rule 13 CPC, it is mandatory to serve notice to the application upon the opposite party. Learned Tribunal has wrongly held that the opposite party would mean the claimant alone and disposed of the application in the absence of the appellant who in fact is the aggrieved party as with the modification of award liability has been imposed upon him. It is well settled that nobody should be condemned unheard specially when there is an order in his favour which has been modified on a subsequent application."
Similarly, the law laid down by this Court in Roshal Lal's case (supra), which aptly apply to the present case, read as under:-
"Apart to dispense with the service in a particular case is one thing but to attribute and impute knowledge of proceedings and decree to the party, who has not been served is another thing. Even Sub-Rule 3 of Rule 14 of Order 41 of C.P.C., provides that to dispense with the service upon a party, who did not appear before the lower Court, is in the discretion of the Appellate Court. This discretion is further circumscribed by the proviso to the Rule, which inter-alia requires notice of appeal to be published in any news paper or in such other manner as Saluja Mukesh Kumar RSA NO.239 of 1991 and another 12 2014.02.21 12:21 I attest to the accuracy and integrity of this document the Court may direct before discretion to dispense with the notice is exercised under the given circumstances. Thus, the Rule does not confer an absolute to the Appellate Court to dispense with the service upon the respondents, who were absent before the lower Court but gives an option to the Appellate Court to dispense with service by prescribed modes provided they are put to notice through publication in news paper or any other means as may be deemed proper by the Court. This rule does not envisage total non-service or dispensing with service completely upon the respondents, as this itself will be unlawful and unconstitutional and violative of the very Doctrine of "Audi Altram Partem" and also other statutory provisions contained in the Civil Procedure Code, which require the parties to the lis to be put to notice and provided an opportunity for contesting any claim against them. Introduction of this Rule was never intended to provide absolute discretion to the Court to serve a party or not to serve. Such a situation would be ante- thesis to the very rule of law, judicial propriety and judicial wisdom and above all justice delivery itself.
The interpretation sought to be placed by Mr. Jain to the provisions of Order 41 Rule 14(3) of C.P.C. is just not acceptable and does not appeal to my judicial conscience. Even Clause (b) of Sub Rule 3 does not create any impediment for the defendants/respondents Saluja Mukesh Kumar RSA NO.239 of 1991 and another 13 2014.02.21 12:21 I attest to the accuracy and integrity of this document from appearing to contest the appeal at any later stage. This is unimaginable that a party who was never put to notice is expected to know the proceedings and decision of the Court.
In view of the peculiar facts of the present case, it was otherwise obligatory upon the first Appellate Court to have served the respondents (appellants herein). It is the admitted fact that the suit filed by respondent No. 1 was dismissed by the trial Court even though, the defendants were proceeded ex-parte. Assuming that the defendants had the knowledge of the suit having been served, but with the dismissal of the suit, they are presumed to be happy and were not required to follow the appeal as the decision of the trial Court was in their favour. There was every reason for them to be complacent. Under this scenario, the decision of the lower Appellate Court not to serve the respondents cannot be termed anything, but a blatant and patent illegality. It was statutory obligation of the lower Appellate Court to have ordered service of the respondents by publication in the news paper or any other permissible mode, if service in the ordinary course was sought to be dispensed with on the ground that they were absent before the trial Court."
So far as the judgment relied upon by the learned counsel for the respondent is concerned, there is no dispute about the law laid down Saluja Mukesh Kumar RSA NO.239 of 1991 and another 14 2014.02.21 12:21 I attest to the accuracy and integrity of this document therein, however the same is of no help to the respondent being clearly distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
Reverting back to the facts of the present case, it is unhesitatingly held that the answer to the substantial question of law posed here-in-above is and has to be in favour of the appellant. It is held that the learned appellate court proceeded on wholly misconceived and patently illegal approach while passing the impugned judgment and decree, without issuing notice to the would be affected parties, i.e. defendants No. 3 to 5. Since the impugned judgment and decree passed by the learned appellate court are being set aside for the foregoing reasons, the natural consequence would be that the civil revision is without any merit and must fail.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned judgment and decree dated 10.8.1990 passed by the learned appellate court cannot be sustained and the same are hereby set aside.
Consequently, the matter is remitted back to the learned lower appellate court for deciding the first appeal of the plaintiff afresh, in accordance with law. However, keeping in view the fact that parties are litigating for quite some long time, the learned appellate court is directed to Saluja Mukesh Kumar RSA NO.239 of 1991 and another 15 2014.02.21 12:21 I attest to the accuracy and integrity of this document make endeavour to decide the appeal as expeditiously as possible preferably within six months from the date of receipt of a certified copy of this judgment.
Resultantly, Civil Revision petition is dismissed and the regular second appeal stands allowed, however, with no order as to costs. Pending application also stands disposed of.
24.1.2014 (RAMESHWAR SINGH MALIK) mks JUDGE