Allahabad High Court
Mahendra Kumar Deceased And Others vs Chhawali Devi Deceased And Another on 28 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 1
RESERVED
Case :- FIRST APPEAL FROM ORDER No. - 2300 of 2011 AFR
Appellant :- Mahendra Kumar Deceased And Others
Respondent :- Chhawali Devi Deceased And Another
Counsel for Appellant :- Nitin Kumar Agrawal
Counsel for Respondent :- Uma Nath Pandey,Ashok Gupta,Kuldeep Kumar
Hon'ble Arvind Kumar Mishra-I,J.
1. Heard Sri Nitin Kumar Agrawal, learned counsel for the defendant-appellants, Sri Uma Nath Pandey, learned counsel for the plaintiff-respondents and perused the material as brought on record.
2. The first appeal from order has been preferred by the defendant-appellant against the judgment and order dated 05.04.2011 passed by the Additional District Judge, Court No.8, Bulandshshr, in Misc. Case No.7 of 2008 filed under Order 41 Rule 21 of the Civil Procedure Code 1908, in Civil Appeal No.204 of 2002, Smt. Chawali Devi and others Vs. Mahendra and others, whereby the application under Order 41 Rule 21 CPC filed against the ex parte decree in the aforesaid civil appeal no.204 of 2002 has been rejected.
3. Contention, in brief, has been floated to the ambit that in this case, it so happened that at the initial stage, a declaratory original suit no.97 of 1983 was instituted by Smt. Chawali Devi wife of late Makkhan Lal and four others (Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar) against the appellant Mahendra Kumar and five others. In the suit, notice was issued to the defendants which was duly served upon them. However, the written statement was filed by the defendants, in particular, the present appellant Mahendra Kumar (since deceased) and it was urged and claimed that some oral assurance was given by the plaintiff-respondents that it being the dispute between family members, the suit shall be withdrawn. Thereafter, defendant-appellant went to Ghaziabad and began to reside there for 13-14 years. In Ghaziabad, the appellant suffered from many ailments / diseases. He came back to Bulandshahr on 13.02.2008 when Subhash and Rakesh told him that the cinema hall is going to be sold by the respondents - Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar as they have won litigation. Thereupon, the appellant being anxious contacted his counsel in Bulandshahr and enquired about the original suit no.97 of 1983 whereupon it transpired that the original suit was dismissed on 18.09.2002 against which an appeal was preferred by the aforesaid plaintiff-respondents which appeal was numbered 204 of 2002.
4. Learned counsel proceeded further that upon inspection of the record, the appellant came to know about fake service of notice upon him after obtaining fake signature of the appellant Mahendra Kumar on the notice, the appeal proceeded ex parte against the appellant. Service of notice is denied as notice was never received by the appellant. Notice sent to the other respondents is highly suspicious and service upon them is doubtful. It was incumbent for the lower appellate court to have matched specimen signature of the appellant brought on record by placing several documents as copies of the income tax returns whereupon the appellant had made his signature and the two signatures on income tax returns do not match with signature of the appellant as endorsed upon notice.
5. Filing of the rejoinder affidavit is not mandatory but discretionary and would not adversely affect the case of the appellant and the lower appellate court wrongly held that the objection / counter affidavit filed by the plaintiff-respondents has not been rebutted by filing any rejoinder affidavit.
6. Learned counsel for the appellants has added that insofar the judgment, order and decree dated 05.04.2011 passed by the lower appellate court is concerned, the appeal was transferred by the District Judge, Bulandshahr to the other courts of the Additional District Judges, Bulandshahr where it proceeded ex parte without ensuring compliance of Rule 89A of General Rules (CIVIL) 1957 which provides that in case proceeding of a case is transferred to another court, then in case parties are represented then either of the party or his/her counsel will be informed about the transfer before proceeding with the case and in case a party is not represented then notice shall be sent to him prior to proceeding further with the case. In this case, transferee court bypassed above procedure and compliance of Rule 89A of General Rules (CIVIL) 1957 has not been ensured and notice has not been sent by the transferee court to the appellant, it proceeded ex parte and decided the civil appeal no.204 of 2002 on 23.01.2008 thereby allowed the original suit and the plaintiff-respondents were declared owner of the property in question.
7. In support of his contention, learned counsel for the appellants has placed reliance on the decision of Hon'ble Apex Court in the case of Haryana Suraj Malting Ltd. Vs. Phool Chand, 2018 (16) SCC 567. He also placed reliance on the decisions of this Court in the case of Smt. Poonam Gupta and others Vs. Anil Agarwal 2019 2 ADJ 768, Sikandar Vs. Akhalak 2008 (2) ARC 231, Ashutosh Shrotriya Vs. Rais Uddin 1994 (24) ALR 238, Chandra Bhan Srivastava Vs. Smt. Prema Srivastava 1996 (27) ALR 175, Akttaryar Khan Vs. Azhar Yar Khan 1994 All.LJ 690 .
8. Learned counsel for the respondents has in reply submitted that in this case, no doubt the suit was instituted by Chawali Devi and the present answering respondents for declaration of their right as owner of the property in question which property was separate property of Makkhan Lal, who purchased it in court auction thus became owner of the property. Upon his death, the property devolved upon her wife Chawali Devi who by will bequeathed the property in favour of the plaintiffs. No oral assurance, as claimed by the present appellants, whatsoever, was given by the plaintiffs that the suit will be withdrawn. It is an afterthought of the appellant that some oral assurance was given to withdraw the suit. The entire family including the plaintiffs and the appellant reside in Kala Aam, Bulandshahr and the entire family is well off. It is misleading to claim that the appellant began to reside at Ghaziabad and was unaware of development of the suit and the appeal in question.
9. It has been further submitted that notice was served upon the appellant Mahendra Kumar. To contend that signature on the notice was forged is absolutely unacceptable under circumstances of the case and to claim that signature made upon notice did not match with various signatures endorsed upon the income tax returns would not serve the purpose because signatures on various income tax returns, on the face, are different from each other and they do not match inter se. How can it be accepted that a man, who has left his native place where the entire family resides and went to Ghaziabad, resided there and did not return back to Bulandshahr to meet his real relatives.
10. Insofar as averments made in the counter affidavit filed by the plaintiff-respondents in rebuttal of claim raised by the appellant in his application under Order 41 Rule 21 CPC is concerned, the same have not been specifically denied / rebutted and no rejoinder affidavit filed (by the appellant).
11. Learned counsel for the respondents has proceeded further by claiming that the aforesaid application under Order 41 Rule 21 CPC was not supported by separate affidavit as was required but the affidavit filed in support of the interim application alone was there. Insofar as the application of Rule 89A of General Rules (CIVIL) 1957 is concerned, the same under facts and circumstances of the case is not applicable, for the reason that the appeal filed before the District Judge, Bulandshahr is reflective of various order-sheets and its outcome as such that all the respondents were found to have been served with the notice only then proceeding started. Pursuant to the notice issued by the District Judge, Bulandshahr in appeal, no one turned up from the appellant (the present appellant) side before the District Judge, Bulandshahr. Since notice was served prior to the transfer of the case and no one appeared before the District Judge, Bulandshahr, the case was transferred then under circumstances there was no need for the transferee court to issue fresh notice. Had the appellant put in appearance before the District Judge, Bulandshahr either personally or through counsel only then action would have arisen for information to the appellant but the appellant did not appear before the District Judge, Bulandshahr on the date fixed.
12. Learned counsel adds that in this case, facts are different which do not require mandatory compliance of Rule 89A of General Rules (CIVIL) 1957 and the entire proceeding is indicative and suggestive of fact that after filing of the written statement in the suit, the appellant Mahendra Kumar for reasons best known to him withdrew his participation suo motu in the proceeding of the suit and theory of "oral assurance" was cleverly set up by him which aspect is not supported by any material on record and it is not inferred by circumstances, either.
13. Upon appeal being preferred before the lower appellate court, notice was sent to the appellant which was duly served upon him, it bears his signature. The order sheet of the lower appellate court is reflective of that fact. On two occasions, even some counsel participated in the proceeding of the appeal as the order-sheets of the lower appellate court dated 06.12.2005, 15.12.2005 and 06.10.2006 proves it. Very cleverly, no Vakalatnama was filed by the counsel (appearing for the present appellant) in the proceeding of appeal and all this was done for watching the proceeding from outside the court. Thus, circumstances of the case pointed out deliberate avoidance of participation by the appellant in the proceeding of the appeal. In such circumstances, the lower appellate court passed the impugned judgment, order and decree dated 05.04.2011 which is just and reasonable and requires no interference by this Court.
14. In support of his claim, learned counsel for the respondents has placed reliance on the decision of this Court in the case of Ram Padarath and another Vs. Smt. Chiraunji Devi 2015 (2) ADJ 619, on the point of mandatory compliance of Rule 89A of General Rules (CIVIL) 1957 but the same is on different footing and not applicable to the facts and circumstances of this case.
15. Considered the submissions, as well.
16. The appellant is aggrieved by the judgment and order dated 05.04.2011 passed by the lower appellate court - Additional District Judge, Court No.8, Bulandshshar, in Misc. Case No.7 of 2008 on the application of appellant for recall of order under Order 41 Rule 21 of the Civil Procedure Code, 1908, in Civil Appeal No.204 of 2002, Chawali Devi and others Vs. Mahendra and others.
17. The chronological background of this case as reflected from record appears to be that a declaratory original suit no.97 of 1983 was instituted by Chawali Devi and four others against the present appellant and others in respect of the property located in Bulandshahr, thereon a cinema hall had been constructed. The suit was contested by the appellant by filing written statement. However, he absented himself from the proceeding subsequently, therefore, the suit proceeded ex parte against the appellant. After considering the merit, the suit was dismissed by the trial court with cost vide judgment and order dated 18.09.2002, against which an appeal was preferred by the plaintiff-respondents before the District Judge, Bulandshahr, whereupon the appeal was numbered as civil appeal no.204 of 2002 Chawali Devi - wife of Makkhan Lal and four others Vs. Mahendra Kumar and others.
18. The order sheet of the lower appellate court is reflective of fact that notice was sufficiently served upon the respondents. However, no one turned up for the respondents before the lower appellate court. Thereafter, the appeal was transferred to the court of the Additional District Judge, Bulandshahr. The transferee court found that notice upon respondents had been served and no one appeared on their behalf, therefore, the proceeding was directed to run ex parte against the appellant-respondents. Ultimately, the lower appellate court vide its judgment and order dated 23.01.2008, allowed the appeal ex parte and the judgement, order and decree dated 18.09.2002 passed by the trial court was set aside, the suit of the plaintiffs was allowed and the plaintiffs were declared owner of the property of the suit.
19. It has been claimed by the appellant that he came to know about this development when he returned Bulandshahr on 13.02.2008, then he was informed by Subhash and Rakesh about the judgment being pronounced. After due inquiry, the appellant came to know about the aforesaid judgment and order dated 23.01.2008 passed by the lower appellate court. Consequently, he moved an application under Order 41 Rule 21 CPC for recall of the aforesaid order dated 23.01.2008 passed by the lower appellate court, which application was registered as misc. case no.7 of 2008 arising out of civil appeal no.204 of 2002, as aforesaid. This case was contested between the parties. The plaintiff-respondents filed their objections/counter affidavit. The lower appellate court after considering the case on merits vide judgment and order dated 05.04.2011 dismissed the aforesaid misc. case. Hence this appeal.
20. Now the moot point involved for adjudication before this Court pertains to fact whether notice of the appeal (204 of 2002) was sufficiently served upon the appellant, in particular, Mahendra Kumar and whether the transferee court was bound to act in compliance of Rule 89A of General Rules Civil or the case was different one?
21. Insofar as service of notice upon the appellant is concerned and the explanation given by the appellant regarding signature of the appellant on the notice being forged and fake is not supported by any cogent evidence or circumstances so as to believe the claim of the appellant that the signature of the appellant on the notice is fake. The process server has made an endorsement upon the notice itself that notice was personally served upon the appellant and it bore signature of the appellant Mahendra Kumar.
22. Insofar as the claim regarding comparison of the signature of the notice with the signature of the income tax returns as made by the appellant is concerned, the same has been, out and out, opposed by the respondents that the various signatures on various income tax returns / papers are, on the face, differently made and are not identical. That being the case, how can a worthy comparison be made between the two signatures. Nothing has been added in rejoinder by the learned counsel for the appellant on this count before this Court. Therefore, contention raised by the respondents on the point of signatures on the income tax returns filed by the appellant being differently made is thus found to be correct one and the same (signatures on income tax returns) are not identical. Moreover, it is wisdom of a person to make endorsement upon any notice sent by the court or any authority as he wishes to make endorsement on it and he can conveniently make it differently. It can be observed with utmost ease that in every case endorsement on a notice made by a person would not necessarily match with his official signature. He can make it differently. It can be in English language, Hindi language or in any other language.
23. On point of service of notice upon the appellant, it appears that the other family members say - Kusum Lata - defendant-respondent no.9 who also resides at Kala Aam Bulandshahr was was found to have been sufficiently served with the notice. Likewise, the other family members of the appellants were also served. In case the entire family had joint interest over the property in question and any fraud had been played by one of the members of the joint family in making forged signatures on the notice sent by the court, in that event the other members of the family would have rushed to the lower appellate court and would have ventilated their grievance and would have claimed in line with the appellant that fraud had been played and notice of appeal had never been received by them. But no one except the appellant has come up before the lower appellate court by moving application under Order 41 Rule 21 CPC.
24. Initially, the suit was filed against five defendants, the present appellant was one among them. However, an application under Order 41 Rule 21 CPC was moved 'solely' by the appellant and the other defendants never challenged the judgment and order dated 23.01.2008 passed by the lower appellate court though it has been claimed that interest of all family members in property was joint.
25. Bare perusal of the order sheet of civil appeal no.204 of 2002, makes it obvious that notices have been sent to the respondents including the present appellant and the same were found to have been sufficiently served upon them by the court of the District Judge, Bulandshahr and the date fixed was 23.09.2003 for final hearing of the appeal, thereafter the case was transferred. Therefore, it cannot be said that the appellant had no notice of the date - say 23.09.2003 fixed by the District Judge, Bulandshahr, for final hearing, prior to transferring the proceeding of the misc. case to another court. That being the case, the next date fixed by the District Judge, Bulandshahr was 23.09.2003. Therefore, it was obligatory on the part of the appellant to have put in appearance on 23.09.2003 and to take stock of the situation, but he did not appear before the lower appellate court. Thereafter, the transferee court after considering the above aspect of the case rightly observed in the order dated 11.11.2003 that notice already served and case already fixed for final hearing, notice upon the respondents is sufficiently served by the order of the predecessor. However, no one turned up for the respondents before the lower appellate court, therefore, the proceeding was directed to run ex parte against the respondents including present appellant.
26. Now insofar as the factual issue of assurance being extended by the plaintiffs that the suit was promised to be withdrawn by the plaintiffs as assured by them to the appellant is concerned is merely a verbal claim for various sanguine reasons; not supported by any circumstances and evidence.
26 (i) The suit was filed in the year 1983 wherein written statement was filed by the appellant. Thereafter he absented himself from the proceeding of the suit after filing written statement. Assuming it to be that any such oral assurance for withdrawal of the suit was given by the plaintiffs to the appellant then a man of ordinary prudence would, under circumstances, shall be highly anxious to know about the outcome of the suit - whether the suit was withdrawn or not ! 26 (ii) However, perusal of the record shows that the suit was decided on 18.09.2002. It almost took two decades to decide the suit, an ordinary man to whom a promise was made previously by the plaintiff-respondents for withdrawal of the suit would take care to know about outcome of the suit, but the appellant has not elaborated on this aspect, this non-explanation, on the face, is intriguing and non-acceptable under facts and circumstances of the case. The conduct shown by the present appellant would be unbecoming of an ordinary prudent man.
26 (iii) The oral assurance given by any person, if denied by that person, requires to be established either by preponderance of probability or by evidence but in this case in hand preponderance of probability works against the appellant and favours the respondents and there is no evidence, whatsoever, regarding claim of oral assurance being given by the plaintiff-respondents for withdrawal of the suit, except the verbal claim alone and that is not sufficient.
27. Therefore, on both counts, theory of oral assurance being given by the plaintiffs for withdrawal of the suit appears, on the face, to be a false claim. Similarly, the plea raised by the appellant in his application under Order 41 Rule 21 CPC to the ambit that he continuously resided in Ghaziabad for 13-14 years after filing of the written statement is not sustainable as other family members were residing at Kala Aam Bulandshahr. All these aspects and circumstances cumulatively go to establish that the appellant is very clever and has not come with clean hands but he is trying to explain unsuccessfully things about fact of knowledge of the pending appeal (204 of 2002) in roundabout manner. It all connotes to fact that the appellant appears to have been watching the proceeding of the suit and appeal in question from outside. Subsequently, he moved application under Order 41 Rule 21 CPC within time after pronouncement of the verdict by the lower appellate court on 23.01.2008, in favour of the plaintiff-respondents.
28. Insofar as contention of the appellant regarding non-compliance of the mandatory Rule 89A of General Rule Civil is concerned to the import that after the case was transferred by the parent court of the District Judge, Bulandshahr to the court of the Additional District Judge, Bulandshahr, proper notice was required to be given and after service of notice, the transferee court would have proceeded further but instead of doing that, the transferee court proceeded ex parte and pronounced the verdict vide its judgment and order dated 23.01.2008 in civil appeal no.204 of 2002.
29. In that regard, bare perusal of the order sheet (of appeal) of the court of the District Judge, Bulandshahr, primarily - the order sheet dated 25.08.2003 and previous order sheets cumulatively reflect on point of service of notice sufficiently served upon the respondents and the date 23.09.2003 was the date fixed by the District Judge, Bulandshahr, for final hearing of the appeal. Thereafter, the case was transferred by the District Judge to the court of the Additional District Judge, Bulandshahr.
30. It is noticeable that in spite of service of notice upon respondents, no one put in appearance on behalf of the respondents on 25.08.2003. However, further date fixed was 23.09.2003 and the case was transferred in the meanwhile. The Presiding Officer of the transferee court was on leave, however, no one appeared for the either side on 23.09.2003 and on the next date 11.11.2003, the transferee court took notice of fact that no one appeared for the respondents, however notice upon the respondents was found sufficiently served by his predecessor and he proceed to hear the appeal ex parte against the respondents. At this stage, it would be relevant to take note of Rule 89A as enumerated in General Rule Civil 1957, which is extracted as below:
"89-A. Procedure to be followed on transfer or withdrawal of cases.
"(1) When a case, i.e., a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from the Court to another, the former Court shall record the order of transfer in the order sheet and get it signed by counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other Court on the date already fixed by the transferring Court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring Court.
(3) Where cases are transferred in a large number the Court from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice board of the local bar association for information of the members of the bar and another copy to be posted on the notice board of the Court for information of the general public. It shall also send to the other Court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other Court shall post it on its own notice board. If the other Court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice board of the bar association.
(4) The Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer.
(5) In sub-rules (1) to (4) ''transfer' includes withdrawal of a case."
31. The mandate reflected by the aforesaid Rule is workable in two situations; first is whether the party or parties is/are already represented in court; the second situation is whether party is unrepresented, thus in a situation when a party is represented in a court and the case is transferred from that court to another court, former court shall record the order of transfer in the order sheet and get endorsement by the counsel for the party or parties. If any party is unrepresented and not served with notice then information shall be given to him. What the transferee court is required to ensure is the fact whether the party or parties is/are aware of the date fixed before proceeding on merits in a transferred matter.
32. In the present case, the appeal was transferred before the respondents put their appearance in court and notice had already been issued by the parent court and it was found sufficiently served thus fixing 23.09.2003 for final hearing. The case was taken up in the transferee court on the date fixed 23.09.2003 but no one appeared though the Presiding Officer was on leave. That by itself would indicate that the appellant had notice of the next date fixed i.e. 23.09.2003 prior to the transfer of the appeal. In such situation, there was no occasion before the transferee court to examine as to whether the defendants have knowledge of transfer of the matter or not. Therefore, the first situation as contemplated under Rule 89 A of General Rule Civil does not arise in the present case. Second situation, party being unrepresented had been satisfied as notice was found duly served upon the appellants and the excuse taken by the appellant that he began to reside in Ghaziabad continuously for 13-14 years after filing of the written statement in the original suit no.97 of 1983 has been exposed to falsity as discussed hereinabove. In such circumstances, it cannot be said that the appellant had no knowledge about the pending appeal.
33. The other family members of the present appellants who were residing at Kala Aam, Bulandshahr were sufficiently served and it is not the case of the appellant that he had no communication with other family members residing at Kala Aam, Bulandshahr. How can it be accepted that the appellant had no knowledge about pendency of the appeal once notice was found to have been duly served upon him by the lower appellate court. In the circumstances, it can be conveniently observed that the defendant-appellant failed to establish fact that he had no knowledge of the proceeding of the appeal and he was prevented from appearing in the court on account of transfer of the appeal from the court of the District Judge, Bulandshahr to the court of the Additional District Judge, Bulandshahr when the appeal was called out for hearing. That being the case, the principle of the aforecited case of Ram Padarath and another Vs. Smt. Chiraunji Devi 2015 (2) ADJ 619, by the plaintiff-respondents is very much attracted and applicable in the present case, whereas, on account of above discussion, it is obvious that the following cases cited by the appellant's counsel; Haryana Suraj Malting Ltd. Vs. Phool Chand, 2018 (16) SCC 567. He also placed reliance on the decisions of this Court in the case of Smt. Poonam Gupta and others Vs. Anil Agarwal 2019 2 ADJ 768, Sikandar Vs. Akhalak 2008 (2) ARC 231, Ashutosh Shrotriya Vs. Rais Uddin 1994 (24) ALR 238, Chandra Bhan Srivastava Vs. Smt. Prema Srivastava 1996 (27) ALR 175, Akttaryar Khan Vs. Azhar Yar Khan 1994 All.LJ 690, are not applicable to the given facts and circumstances of the present case. Therefore, the same are not helpful to the appellant.
34. Before parting with the judgment, it can be observed that bare perusal of the record is replete with facts that predecessors of both the sides belonged to the same family and there were a number of litigation between and among them. One such litigation can be referred as original suit no.165 of 1942 Bhagwati Kunwar Vs. Makkhan Lal which has been placed on record of the trial court vide paper no.147-C, the written statement was filed in the aforesaid suit on 15.02.1943. Civil appeal no.86 of 1943 Makkhan Lal Vs. Bhagwati Kunwar, vide paper no.151-C, was also preferred against the aforesaid outcome in the suit wherein judgement was pronounced on 08.11.1943. Apart from that, a number of papers have been brought on record whereby long-drawn litigation between and among the family members of the appellant and the respondents is very much reflected. Therefore, in the present case in hand it is obvious that the suit was filed, the appellant himself did not care to know about the outcome of the suit and upon appeal being preferred by the plaintiff-respondents, notice was sent to him by the lower appellate court which notice was found to have been sufficiently served upon him. The circumstances pointed out that the application under Order 41 Rule 21 CPC was moved by the appellant within time, that goes to give thrust to possibility and fact that the appellant was watching the proceeding from outside the court and he was compelled to seek recall of the judgment of the lower appellate court after delivery of the judgment by the lower appellate court. He appears to have not come with clean hands.
35. In view of the discussion made hereinabove, it is obvious that the appeal lacks merit and the same is dismissed. In turn, the judgment, order and decree dated 05.04.2011 passed by the lower appellate court is hereby sustained.
36. It is observed that nothing has been reflected by this Court on the merits of the judgment and order (dated 23.01.2008) passed by the lower appellate court and this order is confined to the consideration of the application under Order 41 Rule 21 CPC and this appeal in hand.
37. Both the parties shall bear their costs.
Order Date :- 28.04.2023 rkg