Allahabad High Court
Sanjay Kumar vs Amar Nath Shukla on 14 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- FIRST APPEAL FROM ORDER No. - 431 of 2003
Appellant :- Sanjay Kumar
Respondent :- Amar Nath Shukla
Counsel for Appellant :- S.K. Mehrotra,Narendra Kumar Pandey,Ram Nath Pandey,Shivendra Pratap Singh
Counsel for Respondent :- Madhav Srivastava,Uma Shankar Sahai
*****
Hon'ble Jaspreet Singh,J.
The instant FAFO has been preferred under Order 43 Rule 1(u) CPC against the judgment and decree dated 03.05.2003 passed by IX Additional District Judge, Faizabad in Civil Appeal No.56/1992 (Amar Nath vs. Sanjay Kumar & Ors.) whereby the lower appellate Court has remanded the matter to the trial court to decided the suit being R.S. No. 279/1985 after impleading the respondents herein, in the plaint in suit.
This Court by means of the order dated 31.07.2003 had admitted the above appeal and had stayed the further proceedings of the trial court.
The Court has heard Shri N.K. Pandey, learned counsel for the appellant and Shri U.S. Sahai, learned counsel for the respondents.
Shri U.S. Sahai has pointed out that during pendency of the above appeal, the respondents herein have sold part of the property in favour of one Smt. Suman Shukla, who has moved an application for impleadment bearing C.M. Application No.99329/2019. The aforesaid application has been opposed by Shri N.K. Pandey. However, for the reasons contained in the body of the judgment, this Court finds that there is no impediment in allowing the aforesaid application for impleadment and accordingly the application for impleadment shall stands allowed.
Learned counsel for the appellant Shri Pandey shall carry out necessary amendment in the array of the parties during the course of the day.
The facts giving rise to the above appeal are being noticed hereinafter.
The appellant, Sanjay Kumar, who alleged himself to be the adopted son of Vidhyadhar Pandey, the original-defendant No.1 along with his mother Smt. Sona Devi instituted a suit for permanent injunction in the Court of Civil Judge, Faizabad which was registered as R.S. No.279/1985. The allegations in the plaint were that the plaintiff No.1 is the adopted son of the defendant No.1 whereas the plaintiff No.2 was his wife. It was also alleged that the defendant No.1 is the recorded owner of the property bearing Plot No.390 measuring 3 bighas, 6 biswas and 1 Dhur and Plot No.501 measuring 3 biswas situate at Mauja Itaura Khurd, Paragna Bidhar, Tehsil Tanda, District Faizabad and another residential house situate in Mauja Itaura, District Faizabad. The details of the said properties were mentioned in the scheduled contained in the plaint in suit and it was stated that they were ancestral property in which the plaintiff No.1 was itself having a right.
It was further pleaded that the defendant No.1 on 19.01.1984 had entered in a family settlement which was reduced in writing according to which the property bearing agricultural plot No.390 and plot No.501 were made the subject matter of the settlement, wherein 2/3 of the property was given to the plaintiff No.1 and 1/3 remained with the plaintiff No.2 whereas the residential house was retained for the use of the defendant No.1 wherein each i.e. plaintiffs No.1 and 2 and defendant No.1 would have 1/3 share therein. It is also alleged that thereafter the plaintiff and the defendant No.1 came in possession as owners of the property in question and apart from the plaintiff No.1 and the defendant No.1 no other person had any right, title or interest thereto. It was also alleged that the defendant No.2 Shri Amarjeet Pandey who was instigating the defendant No.1 to sell the property in question accordingly the need arose to file a suit for injunction restraining the defendants from interfering in the peaceful possession as well as from alienating the property in question.
Vidhadhar Pandey, the defendant No.1 filed his written statement contesting the allegations made in the plaint. He categorically submitted that there was no such family settlement which was arrived at between the parties as alleged by the plaintiff nor any written Yaaddash was signed by the defendant No.1. He also denied that the defendant had ever taken the plaintiff No.1 in adoption and that the plaintiff had no right in the property in question. The defendant also disputed the allegations made in the plaint and subsequently took the plea that the suit of the plaintiff itself was not maintainable and was barred by the provisions of Section 331 of the U.P. Z.A. & L.R. Act.
Significantly the trial court by means of the order dated 04.08.1986 had granted an interim order restraining the alienation of the property in suit.
During pendency of the suit, the defendant No.2 expired and he was substituted by his legal heirs, who were brought on record as defendant No.2/1 to 2/5. However, the fact remains that there were no major allegations against the defendant No.2. Accordingly, the heirs of the defendant No.2 also did not contest and the suit was primarily contested in between the plaintiff and the defendant No.1. The trial court on the basis of the pleadings framed 7 issues. Issue No.1 relating to the factum of adoption. Issue No.2 was connected therewith and whether the plaintiff had a right to institute the suit and get a decree of injunction. Issue No.3 was framed whether the plaintiff had a right to file the suit. Issue No.4 related to the jurisdiction and whether the suit was maintainable in view of the bar contained in Section 331 of the U.P. Z.A. & L.R. Act.
During pendency of the proceedings before the trial court and during the subsistence of the interim order, Vidhyadhar Pandey through his power of attorney holder, namely Kalika Shukla, had executed a registered sale-deed in respect of the property bearing Plot No.390 in favour of Amar Nath Shukla, the respondent herein. In furtherance thereof, Amar Nath Shukla made an application for impleadment before the trial court on 22.05.1990 which remained pending and came to be dismissed only on 29.04.1992. Thereafter the parties i.e. original plaintiff Sanjay Kumar and the defendant No.1 Vidhyadhar Pandey entered into a compromise on 28.05.1990. Since, the application of the third party Amar Nath Shukla seeking his impleadment was pending, therefore, no effective orders could be passed on the compromise application and after the application for impleadment was dismissed on 22.04.1992 thereafter the suit on the basis of the aforesaid compromise was decreed by means of the judgment and decree dated 30.05.1992 passed by the court of Civil Judge, Faizabad.
Amar Nath Shukla preferred two proceedings before the superior court. He preferred a civil revision before the District Judge, Faizabad which was registered as Civil Revision No.57/1992 assailing the order by which his application for impleadment was dismissed and also instituted a regular civil appeal against the judgment and decree passed by the trial court dated 30.05.1992, which was registered as Civil Appeal No.56/1992.
Both the civil revision as well as the regular civil appeal came to be connected together and were decided by a common judgment and decree dated 03.05.2003 wherein the appellate court below after allowing the application for impleadment, allowed the regular civil appeal and the civil revision after setting aside the judgment and decree dated 30.05.1992 passed in R.S. No.279/1985 and remanded the matter to the trial court to decide the suit afresh after impleading Amar Nath Shukla and also affording an opportunity of hearing to the parties concerned.
It is this judgment passed by the lower appellate Court dated 03.05.2003 remanding the suit, which is the subject matter of this appeal.
Learned counsel for the appellant Shri Pandey has submitted that the reason given by the lower appellate Court to allow the appeal was that Amar Nath Shukla, who had purchased the property in question ought to have been heard before passing the order on the validity and the compromise, since, he had purchased the property during its pendency. It has been submitted that this reason was unwarranted for once the aforesaid sale-deed on the basis of which Amar Nath Shukla claimed his right was executed in teeth of the injunction order granted by the trial court dated 04.08.1986 no right would accrue to such a transferee and, therefore, he was neither a necessary nor a proper party and accordingly the lower appellate court committed an error in allowing the application in remanding the matter to the trial court.
It has also been submitted by Shri Pandey that in terms of a family settlement the property in question had already been given to the plaintiffs and the defendant only had 1/3 share therein. That being so he did not have any right to execute the sale-deed in favour of Amar Nath Shukla. Moreover, the record reflected that it was the power of attorney holder of Vidhyadhar Pandey namely Kakila Shukla, who usually did the pairvi on behalf of Vidhyadhar Pandey. It is the said power of attorney holder, who executed the sale-deed in favour of Amar Nath Shukla and, therefore, both Vidhyadhar Pandey as well as his power of attorney holder Kalika Shukla were aware of the injunction operating in the civil suit and despite the same they violated the order, hence, the subsequent transferee Amar Nath Shukla cannot be treated as a bonafide purchaser for valuable consideration and no right would vest with him and the reasons so recorded by the lower appellate court being faulty hence the matter was incorrectly remanded and the appeal deserves to be allowed.
Shri Pandey in support of his submission has relied upon a decision of the Apex Court in the case of Raj Kumar vs. Sardari Lal & Ors., reported in (2004) 2 SCC 601 and has submitted that the transferee pendente lite does not get any right to be impleaded in the proceedings. It is merely the discretion of the court whether such a person can be permitted to be impleaded as a transferee in terms of Order 22 Rule 10 CPC and in cases even though he is not brought on record yet being a transferee pendente lite he would be bound by the decree. Thus, it has been submitted that the trial court had exercised its discretion in refusing the impleadment thereafter once the party had entered into a compromise there was no occasion for the first appellate court to have reversed the decree especially when it did not suffer from any error as well as the fact that a consent decree could not be assailed by the subsequent transferee who was bound by the decree which was a consent decree.
Shri U.S. Sahai refuted the aforesaid submissions and has submitted that the defendant No.1 had filed his written statement and had raised substantial defence. It had raised the question of jurisdiction of Court to try the suit in the first place inasmuch as it was a categoric plea that the suit of the plaintiff was barred by Section 331 of the U.P. Z.A. & L.R. Act. From the perusal of the pleadings, certain facts which were admitted if are taken note of it would lead to a consequence that the suit itself was not maintainable and moreover once the defendant No.1 had stated that there was animosity in between the defendant No.1 and his wife. The plaintiff No.2 had raised allegation against her character and chastity and she had been living with somebody else for number of years prior to institution of the suit as well as the fact that the question of adoption was also disputed for which the trial court had framed issues. The trial court did not give any finding on any of the contentious issue so framed, however, it decided the suit merely on the ground that the parties had entered into a compromise and so the suit was decided.
Shri Sahai has also submitted that the compromise itself was unlawful nor the Court which accepted the compromise had the jurisdiction to do so. Under the aforesaid facts and circumstances, there is a clear violation of Order 23 Rule 3 CPC and, therefore, for the said reasons, the whole decree based on compromise was bad in law and was liable to be set aside.
Shri Sahai has also submitted that the respondent Amar Nath Shukla being the transferee pendente lite in terms of Order 22 Rule 10 CPC had a right to be impleaded and the lower appellate Court relying upon the decision of the Hon'ble Apex Court in the case of Savitri Devi vs. District Judge, Gorakhpur reported in (1999) 2 SCC 577 has rightly exercised its jurisdiction and finding the anomalies in the whole proceedings has remanded the matter which requires no interference from this Court.
The Court has heard learned counsel for the parties at length and also perused the record.
The points for consideration before this Court are (i) Whether the trial court was justified in decreeing the suit on the basis of compromise entered in between the defendant No.1 and the plaintiff No.1; (ii) Whether the trial court was justified in rejecting the application for impleadment of Amar Nath Shukla; (iii) Whether the transferee during pendency of this appeal namely Smt. Suman Shukla has a right to be impleaded; and (iv) Whether the decision rendered by the lower appellate Court is contrary to the principles regulating the powers of the first appellate Court regarding remand.
Point No.1.-From the perusal of the record, certain facts which are not disputed are that the suit for injunction was instituted both by the plaintiff No.1 Shri Sanjay Kumar, who was a minor at the relevant time along with his mother Smt. Sona Devi (who died during pendency of the civil suit). It is also not disputed that the plaintiffs had filed the copies of the khatauni relating to Plot No.390 and Plot No.501.
From the record also it would indicate that on the date of the institution of the suit, both the plaintiff No.1 and 2 were not recorded owners of the property in question. It is also not disputed that the alleged family settlement which has been referred by the plaintiffs which was followed by a "Yaaddash" dated 19.01.1984 is unstamped. Learned counsel for the appellant also could not dispute that so far as the agriculture property is concerned even though if it may be considered to be ancestral yet on the date of institution of the suit as well as on the date of the alleged family settlement i.e. 19.01.1984 as well as on the date of the alleged compromise dated 28.05.1992 also on the date when the suit was decreed on the basis of the compromise i.e. 30.05.1992, the plaintiffs were not the recorded owners in respect of the said property, which was agricultural in nature.
Once the aforesaid facts are not disputed, the fact remains that the jurisdiction of civil court in terms of Section 331 of the U.P. Z.A. & L.R. Act to entertain the suit for injunction was a question and issue to be answered which has not been done. Moreover in the aforesaid suit a compromise which related to the agricultural property between the persons who was not recorded owners was an issue also involved. Certain points of law regarding the admissibility as well as its validity of the family settlement and "Yaaddash" in terms of Section 17(1) of the Registration Act was also involved.
Another aspect which require considerations is the scope of Order 23 Rule 3 CPC, which reads as under:-
"3. Compromise of suit: Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.]"
The aforesaid provisions enables the Court to decide a proceeding before it on the basis of compromise, however, upon close reading of the aforesaid provisions it would indicate that the Court must record its satisfaction that the suit is justified wholly or in part by a lawful agreement or compromise. It is only once the conditions are fulfilled that the Court shall pass an order passing a decree in accordance with the aforesaid compromise or agreement.
In the instant case once the issue regarding the bar of Section 331 of the U.P. Z.A. & L.R. Act was raised. The question of adoption of the plaintiff No.1 was raised and the trial court without adverting thereto and merely on the basis of the compromise entered between the parties on 28.05.1992 without recording its satisfaction that the said agreement was valid or not as well as without adverting to its own jurisdiction whether it was competent to deal with the suit for injunction and also wherein a party had entered into a compromise in respect of agriculture property.
Another aspect open for consideration was the effect of some of the property having been sold by the defendant No.1 in favour of Amar Nath Shukla and since the said sale-deed was not challenged what would be its effect and in light thereof whether the compromise could have been accepted blindly.
This Court finds that this aspect of the matter and the issues involved have been completely ignored by the trial court while passing the impugned judgment and decree dated 30.05.1992.
This Court draws strength from the decisions of the Apex Court in the case of Dwarka Prasad Agarwal (D) by LRs., vs. B.D. Agarwal & Ors., reported in (2003) 6 SCC 230 and Ajad Singh alias Ajad vs. Chatra & Ors., reported in (2005) 2 SCC 567.
Thus, this Court is of the opinion that the compromise, before it could be accepted, the trial court ought to have given a thought and recorded its satisfaction to the effect whether the adjustment or compromise was legal or lawful, whether the court had the jurisdiction to entertain the suit as well as the application relating to agriculture property especially when the name of the plaintiff was not recorded in the revenue record at any point of time. Thus, the manner in which the trial court has blindly accepted the compromise without adverting the aforesaid issues is not in sound discretion and powers to be exercised by the trial court. Hence, this Court finds that the trial court has failed to exercise its jurisdiction vested in it in law by blindly following the compromise without adverting to the issues involved and decreeing th suit dated 30.05.1992. Thus, the point for determination at No.1 is answered accordingly.
Point Nos. (ii) & (iii).-The second question whether the trial court rightly rejected the application for impleadment of Amar Nath Shukla is also to be considered however before giving a finding thereon, it would be apposite to mention the relevant law on the subject. The Apex Court in the case of Amit Kumar Shaw vs. Farid Khatoon reported in AIR 2005 SC 2209 has held as under:-
"11. The application under Order 22 Rule 10 can be made to the appellate court even though the devolution of interest occurred when the case was pending in the trial court. In the instant case, the suit was decreed in favour of Fakir Mohammad by judgment and decree dated 3-11-1989. The suit was contested by two sets of defendants, one set of defendants was Birendra Nath Dey and Kalyani Dey and the other set of defendants was Jagat Mohan Das alone. The appeals were preferred by the parties. Both the appeals were heard and by a common judgment and order dated 25-6-1992, the said appeals were allowed and the judgment and decree passed by the Munsif was set aside. By a deed of assignment dated 15-12-1995, the said Birendra Nath Dey assigned his leasehold right in respect of 132-A, Circular Garden Reach Road, presently known as 132-A, Karl Marx Sarani, Kolkata in favour of the appellants. By a deed of sale executed on 15-12-1995, duly registered with the Additional Registrar of Assurances, Calcutta, Kalyani Dey sold the property being No. 132-B of the above address to the other appellant. The second appeals filed by the parties were pending on the file of the High Court at Calcutta. The appellants had no knowledge of the second appeals. Thereafter on verification, the appellants came to know of the pendency of the appeals which necessitated them to file the applications for substitution in the second appeals. In the meanwhile, the appellants filed the applications before the municipal authorities for mutation of their names in respect of the property on 24-12-2002 and the municipal authority informed the appellants that they were not in a position to mutate the names of the appellants of the property in question because of the pendency of the two second appeals before the High Court at Calcutta. Thereafter the appellants engaged an advocate to find out whether any such appeals have been filed by the parties. The advocate so engaged informed the appellants that two appeals being SAs Nos. 631 and 632 of 1993 were filed by Fakir Mohammad, Farida Khatoon and others, respondents herein. It was also informed that the said appeals were admitted by the High Court but the impugned judgment and order was neither prayed for stay nor stayed. Therefore, it was also submitted by the appellants that since the appellants have become the absolute owners of the property, their interest will be highly prejudiced and they will be vitally affected, if any order is passed by the High Court without hearing the appellants in the matter. Therefore, they prayed that the appellants are to be substituted in place and stead of the present respondents, since they have no existing and subsisting right, title or interest in the property.
12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit.
16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case."
A coordinate Bench of this Court had the occasion to review the entire subject on the doctrine of lis pendens and it traced its origin from the Roman Law and thereafter reviewed the landmark decisions of various High Courts and the Hon'ble Supreme Court in Paras 25 to 68 of the said judgment in the case of M/s. Bhavya Dwellings Pvt. Ltd., Lucknow vs. Gopal Narain Chaubey & Ors., reported in 2014 SCC OnLine All 15213 and ultimately in Para-69 held as under:-
"69. Thus, where a defendant in a suit transfers his share in the suit property during the pendency of me suit, the lis pendens purchaser is often left in the lurch, because the transferor defendant after alienating the property, does not properly defend the suit and sometimes even colludes with the plaintiff. Therefore an alienee shall ordinarily be allowed to join the suit as a party to enable him to protect his interest."
The Hon'ble Apex Court in the case of Savitri Devi vs. District Judge, Gorakhpur (supra) considering the provisions of Order 1 Rule 10 CPC as well as Order 22 Rule 10 CPC and Section 52 of the Transfer of Property Act has held as under:-
"9. Order I Rule 10 CPC enables the court to add any person as a party at any stage of the proceedings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code.
10. In Khemchand Shankar Choudhari v. Vishnu Hari Patil [(1983) 1 SCC 18] this Court held that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit is a representative in the interest of the party from whom he has acquired that interest and has a right to be impleaded as a party to the proceedings. The Court has taken note of the provisions of Section 52 of the Transfer of Property Act, 1882 as well as the provisions of Rule 10 of Order XXII CPC. The Court said: (SCC p. 21, para 6) "It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard."
11. In Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay [(1992) 2 SCC 524] this Court discussed the matter at length and held that though the plaintiff is a "dominus litis" and not bound to sue every possible adverse claimant in the same suit, the Court may at any stage of the suit direct addition of parties and generally it is a matter of judicial discretion which is to be exercised in view of the facts and circumstances of a particular case. The Court said: (SCC p. 529, para 8) "8. The case really turns on the true construction of the rule in particular the meaning of the words ''whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit'.
The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the court has power to join the intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions."
The Court also observed that though prevention of actions cannot be said to be the main object of the Rule, it is a desirable consequence of the Rule. The test for impleading parties prescribed in Razia Begum v. Sahebzadi Anwar Begum [AIR 1958 SC 886 : 1959 SCR 1111] that the person concerned must be having a direct interest in the action was reiterated by the Bench."
Again the Apex Court in the case of Dhurandhar Prasad Singh vs. Jaiprakash University & Ors., reported in AIR 2001 SC 82552, while considering the provisions of Order 22 Rule 10 CPC held as under:-
"" 24. Now we proceed to consider the second question posed, but before doing so, for better appreciation of the point involved, it would be appropriate to refer to the provisions of Order 22, Rule 10 of the Code which runs thus:-
"10. Procedure in case of assignment before final order in suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendncy of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
25. Plain language of Rule 10 referred to above does not suggest that leave can be sought by that person alone upon whom the interest has devolved. It simply says that the suit may be continued by the person upon whom such an interest has devolved and this applies in a case where the interest of plaintiff has devolved. Likewise, in a case where interest of defendant has devolved, the suit may be continued against such a person upon whom interest has devolved, but in either eventuality, for continuance of the suit against the persons upon whom the interest has devolved during the pendency of the suit, leave of the court has to be obtained. If it is laid down that leave can be obtained by that person alone upon whom interest of party to the suit has devolved during its pendency, then there may be preposterous results as such a party might not be knowing about the litigation and consequently not feasible for him to apply for leave and if a duty is cast upon him then in such an eventuality he would be bound by the decree even in cases of failure to apply for leave. As a rule of prudence, initial duty lies upon the plaintiff to apply for leave in case the factum of devolution was within his knowledge or with due diligence could have been known by him. The person upon whom the interest has devolved may also apply for such a leave so that his interest may be properly represented as the original party, if it ceased to have an interest in the subject matter of dispute by virtue of devolution of interest upon another person, may not take interest therein, in ordinary course, which is but natural, or by colluding with the other side."
In light of the propositions deduced from the decisions of the Hon'ble Apex Court as well as this Court as mentioned above, it would be clear that in the aforesaid circumstance where the allegation of malafide, the factum of adoption as claimed by the plaintiff was disputed also the animosity and estranged relation between the plaintiff No.1 and the defendant No.1 coupled with absence of any evidence or material on record regarding the adoption were germane issues and the property has been transferred during the pendency of the proceedings. Merely because the sale-deed was executed in teeth of the interim order granted by the court would entail consequences as provided in law especially when the plaintiffs themselves did not assail the aforesaid deed by seeking any amendment in the plaint coupled with the fact that they did not even initiate any proceedings for violation of the interim injunction hence the issues involved in the suit and the subsequent events which had given rise to the compromise and its validity were complex questions which required adjudication and since Amar Nath Shukla would be an affected party, hence it was necessary for him to be impleaded and thus this Court finds that the trial court committed an error in failing to consider this aspect of the matter while rejecting the impleadment application.
The discretion exercised by the lower appellate Court while allowing the application has been passed after taking note of the totality of the circumstance and is in sound discretion of the jurisdiction in consonance with the principles settled by the Hon'ble Apex Court. Accordingly, this Court finds that the lower appellate Court rightly allowed the application for impleadment. The reasons given hereinabove relating to the impleadment also holds true for the transfer made during pendency of this appeal by Amar Nath Shukla in respect of only part of the property in favour of Smt. Suman. Thus, for the sake of brevity, the aforesaid reasons are not being repeated. Accordingly, for the aforesaid reasons noted in the earlier part of this judgment which should be read for allowing the application of Smt. Suman also. Thus, the points of determination at S.No. (ii) and (iii) are answered accordingly.
Point No.(iv).-Now coming to the last question whether the first appellate Court has exercised its powers conferred upon it for remand correctly ? The provisions of Order 41 Rules 23 and 23-A CPC reads as under:-
"23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23.-A Remand in other Cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."
At the very outset, it may be stated that the suit was not decreed on any preliminary point, therefore, for the said reason, the provisions of Order 41 Rule 23 CPC will have no applicability in the present case. However, Rule 23-A of Order 41 CPC is relevant for remand of cases in general. The principles for remand as culled out by the Hon'ble Apex Court are being noted as under:-
(a) In the Case of Jegannathan vs. Raju Sigamani & Anr., reported in (2012) 5 SCC Page 540, the Apex Court has held as under:-
"6. Order 41 Rule 23 is invocable by the appellate court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the appellate court thinks proper to remand the case for fresh disposal. While doing so, the appellate court may issue further direction for trial of certain issues.
7. Order 41 Rule 23-A has been inserted in the Code by Act 104 of 1976 w.e.f. 1-2-1977. According to Order 41 Rule 23-A of the Code, the appellate court may remand the suit to the trial court even though such suit has been disposed of on merits. It provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the appellate court considers that retrial is necessary, the appellate court may remand the suit to the trial court."
(b) In J. Balaji Singh vs. Diwaker Cole & Ors., reported in (2017) 14 SCC 207, it has been held as under:-
"14. There are three provisions in the Code which deal with the power of the appellate court to remand the case to the trial court. These provisions are Order 41 Rules 23, 23-A and 25:
14.1. So far as Order 41 Rule 23 is concerned, it enables the appellate court to remand the case to the trial court when it finds that the trial court has disposed of the suit upon a preliminary point. The appellate court in such cases is empowered to direct the trial court to decide all the issues on evidence on record.
14.2. So far as Rule 23-A is concerned, it enables the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court.
14.3. So far as Rule 25 is concerned, it enables the appellate court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the trial court. The appellate court in such case may, accordingly, frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself."
If the aforesaid principles are applied to the present case at hand, it would indicate that the judgment passed by the trial court suffered from errors inasmuch as despite the evidence having been led and the issues were framed and in light thereof, it was imperative for the trial court to give its findings and decision on all the issues. Even assuming that the compromise had been entered after the evidence had been adduced even then as already noticed hereinabove, the validity and the legality of the aforesaid compromise had to be considered by the trial court which has not been done. Since, the suit had been decreed in absence of an important and a necessary party i.e. Amar Nath Shukla, who did not get any opportunity of hearing to contest, nor there was enough evidence by which the findings could have been returned which ultimately in turn would affect and be binding on the subsequent purchaser namely Amar Nath Shukla. In the given facts and subsequent events, a re-trial is necessary to take the litigation to its logical conclusion.
In the aforesaid circumstance, the first appellate Court has rightly exercised its jurisdiction and remanded the matter to the trial court for consideration afresh after impleading the necessary party and affording them with an opportunity for contesting the proceedings. Point of determination at S.No.(iv) is answered thus.
In light of the aforesaid discussions, this Court is of the firm opinion that the order passed by the first appellate Court does not require any interference. The judgment passed by the lower appellate court is affirmed. The appeal is devoid of merits and is accordingly dismissed.
This Court notes that the initial proceedings relates to the year 1985 and by means of the interim order granted by this Court dated 31.07.2003, the further proceedings of the trial court remained suspended during the period this appeal remained pending. In the aforesaid circumstance, this Court directs that the parties shall appear before the trial court on 03.02.2020. The trial court must take note of the fact that the matter is of the year 1985, thus, it shall provide full opportunity to the parties to contest the case on merits, however, the trial court shall ensure that the parties may not misuse the liberty by seeking unnecessary adjournments. The plaintiff shall implead the parties concerned namely Amar Nath Shukla and Suman Shukla as defendants in the suit, who shall file their defense in a time bound fashion to be determined by the trial court and the trial should proceed as far as possible by fixing short dates so that the entire trial and arguments is concluded and the matter is decided within eight months from the date a certified copy of this judgment and order is placed before the court concerned. The trial court shall be justified in imposing heavy costs or any appropriate order in case if any of the party misuses the liberty, or willfully attempts to violate the time schedule determined by the trial court.
It is also provided that till the proceedings are decided by the trial court in furtherance of the order passed by this Court, the parties to this appeal/suit are restrained and shall not alienate or transfer the possession or properties in question to any other party.
With the aforesaid directions, the appeal is dismissed and the parties shall appear before the trial court on 03.02.2020. There shall be no order as to costs.
The record of lower court be remitted to the court concerned within two weeks from today.
Order Date :- 14.01.2020 Rakesh/-