Madhya Pradesh High Court
Bachchu Singh vs Smt. Vijay Laxmi Tripathi on 24 October, 2018
Equivalent citations: AIRONLINE 2018 MP 988
1 CR-678-2018
The High Court Of Madhya Pradesh
CR-678-2018
(BACHCHU SINGH Vs SMT. VIJAY LAXMI TRIPATHI)
Gwalior, Dated : 24-10-2018
Shri Pramod Kumar Gohadkar, Advocate for applicants.
This revision under Section 115 of CPC has been filed against
the order dated 26/9/2018 passed by the Sixth Additional District
Judge, Guna in MJC No.19/2018, by which the application filed by
respondents no.1 to 4 under Order IX Rule 13 CPC has been allowed
and an ex parte judgment and decree dated 9/10/2012 in Civil Suit No.14-A/2011 passed by the First Additional District Judge, Guna has been set aside.
It is submitted by the counsel for the applicants that plaintiffs/applicants have filed a civil suit for declaration of title, partition and possession in respect of land falling in survey no.154 area 5.414 hectare, as they have 1/2 share in the property in dispute. It was also prayed that the sale deeds executed by some of the defendants in favour of defendants Pramod Kumar, Sher Singh and Vijay Laxmi Tripathi be also declared as null & void and not binding on the plaintiffs/applicants. It appears that Pramod Kumar; one of the defendants, filed an application under Order IX Rule 13 CPC for setting aside the ex parte decree. The said application was dismissed by the trial court by order dated 26/9/2018. Thereafter, respondents no.1 to 4 also moved an application under Order IX Rule 13 CPC for setting aside the ex parte decree. The application filed by respondents no.1 to 4 was allowed, however, it was held by the court below that since the decree, which has been passed, is inseparable, therefore, the 2 CR-678-2018 entire decree has to be set aside and accordingly, the entire judgment and decree dated 9/10/2012 passed in Civil Suit No.14-A/2011 has been set aside.
Challenging the order dated 26/9/2018 passed by the Court of Sixth Additional District Judge, Guna in MJC No.19/2018, it is submitted by the counsel for the applicants that once the application filed by Pramod Kumar, in whose favour a separate sale deed was executed on 4/9/1989, was rejected, then the decree passed against Pramod Kumar should not have been set aside by the trial court while considering the application filed by respondents no.1 to 4 under Order IX Rule 13 CPC.
Heard learned counsel for the applicants.
The trial court in paragraph 20 of its judgment has specifically mentioned that the decree in question is inseparable and under these circumstances, the court has no alternative but to set aside the entire judgment and decree, which has been passed against various defendants. It has also been held that initially the suit was filed against one Babulal, who was dead and thereafter without impleading his legal representatives, his name was deleted and thus, a suit was filed against a dead person. Respondents no.2 to 4 are the legal representatives of Late Shri Babulal Tripathi, which has not been disputed by the applicants.
Heard the counsel on admission.
It appears that four separate sale deeds were executed by different defendants in favour of Pramod Kumar, Sher Singh, Vijay Laxmi Tripathi and Babulal Tripathi. The sale deed executed in favour of Pramod Kumar is dated 4/9/1985, whereas the sale deeds executed 3 CR-678-2018 in favour of Sher Singh, Vijay Laxmi Tripathi and Babulal Tripathi are dated 29/7/1983 and 11/2/1987 respectively.
It is submitted by the counsel for the applicants that since the decree is separable and the cause of action has arisen on different dates, therefore, after rejection of the application filed by defendant Pramod Kumar under Order IX Rule 13 CPC, the trial court should not have set aside the decree in toto including that part of the decree which has been passed against Pramod Kumar.
The submission made by the counsel for the applicants cannot be accepted for the simple reason that it is the applicants who had filed single suit against various defendants claiming that four different sale deeds executed in favour of different defendants should be declared as null and void because the applicants have 1/2 share in the property in dispute. If the applicants were of the view that in respect of each and every sale deed a different cause of action has arisen and decree is separable, then four different civil suits should have been filed. Filing of a composite civil suit claiming their share to the extent of 1/2 in the property in dispute as well as claiming that the four different sale deeds executed in favour of defendants are null and void clearly shows that the applicants were of the view that the decree would be inseparable. Furthermore, it is the well established principle of law that in single civil suit no two separate self- contradictory decrees can be passed. If the decree passed against Pramod Kumar is allowed to stand and ultimately after trial, if the trial court comes to a conclusion that the plaintiffs/applicants have failed to prove their share in the property in dispute, then it would give rise to two different self-contradictory decrees. Further, merely 4 CR-678-2018 because the trial court had come to a conclusion that Pramod Kumar had no sufficient cause for not appearing before the trial court, would not ipso facto mean that the other defendants had also not appeared before the trial court without any sufficient cause. Under these circumstances, it is clear that the trial court did not commit any mistake in setting aside the entire ex parte decree including that part of the decree, which was passed against Pramod Kumar, whose application under Order IX Rule 13 CPC was already dismissed.
Accordingly, this Court is of the considered opinion that there is no illegality in the order dated 26/9/2018 passed by Sixth Additional District Judge, Guna in MJC No.19/2018.
Accordingly, the revision fails and is hereby dismissed in limine.
(G.S. AHLUWALIA) JUDGE Arun* ARUN KUMAR MISHRA 2018.10.26 12:56:06 +05'30'