Allahabad High Court
Madan Mohan Gupta & Others vs Anand Gupta & Others on 1 September, 2015
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 19 AFR Case :- SECOND APPEAL No. - 606 of 2009 Appellant :- Madan Mohan Gupta & Others Respondent :- Anand Gupta & Others Counsel for Appellant :- Sandeep Srivastava Counsel for Respondent :- Rajarshi Gupta,Dilip Kumar,Swapnil Kumar A n d Case :- SECOND APPEAL No. - 774 of 2015 Appellant:- Madan Mohan Gupta and another. Respondent:- Anand Gupta and others. Counsel for Appellant:- Sandeep Srivastava. Hon'ble Ashwani Kumar Mishra,J.
1.These two connected second appeals have been heard together and are being disposed of by this common judgment.
2.Defendants-appellants have preferred Second Appeals No. 606 of 2009 and 774 of 2015challenging the judgment and decree of the lower appellate court delivered in Civil Appeal No. 162 of 2002 ( arising out of Original Suit No. 81 of 1994) and Civil Appeal No. 161 of 2002 ( arising out of Suit No. 769 of 1995) dated 30.4.2009, whereby, the suit filed by the plaintiff-respondent's have been decreed and the defendants-appellants have been directed to hand over peaceful possession of respective portion held by them to the plaintiff-respondents in disputed property i.e. House No. 264 ( new number 320) Colonelganj, Allahabad.
3.Briefly stated, facts giving rise to filing of these appeals are that Original Suit No. 81 of 1994 was filed by Sharda Prasad Gupta with the plaint averments that he owned about 9 different houses at Allahabad and as he was nearing 80 years of age, he persuaded all his four sons namely, Madan Mohan Gupta, Sadan Mohan Gupta, Anand Gupta and Ajeet Gupta to enter into a family settlement so as to have the properties separated/ partitioned amongst them so that after his death no dispute survives. A family settlement was consequently, arrived at between Sharda Prasad Gupta and his four sons on 8.8.1990 and each of the four sons with his family was put in possession over specific share pursuant to family settlement and their respective names were also recorded in the Nagar Mahapalika. In the family settlement, House No. 264 , however, was retained by Sharda Prasad Gupta and was not given to any of the sons. It was asserted that since all sons were given their respective shares, they had no concern left with House No. 264, which fell exclusively in the share of plaintiff. Defendant-appellant Madan Mohan Gupta, however, sought permission from his father to continue for a few months in House No. 264 but after expiry of 4 months, he sought extension of time but even after further expiry of 6 months, he showed no signs of vacating the premises and the father suspected his intentions to vacate the premises, and as certain constructions were attempted to be raised by Madan Mohan Gupta, as such his licence to continue in the house was terminated and original suit was filed by the plaintiff/ father seeking following reliefs:-
"(a) Defendants who are licencee of two rooms situated on first floor in House N. 264 be evicted and the possession of such property be delivered to the plaintiff by way of a decree of permanent injunction, defendants be restrained from altering, demolishing or changing their constructions and nature of house No. 264."
4.Madan Mohan Gupta, his wife and two sons who were defendant Nos. 1 to 4 in Original Suit No. 81 of 1994 contested the suit by filing a joint written statement. Factum of family settlement and giving of separate shares to each son including defendant no. 1 as well as recording of their names was admitted but it was stated that possession of the respective shares could not be delivered to defendants as the property was occupied by tenants. It was stated that the defendant nos.1, 3 and 4 were living in the house since their birth and they were not licencee and it was due to some trivial differences that the suit has been filed by the father for eviction against them.
5.That on 4th July, 1995 original plaintiff of Original Suit No. 81 of 1994 Sharda Prasad Gupta died. Anand Gupta and Amit Gupta and Ashish Gupta sons of Sadan Mohan Gupta were substituted as plaintiffs on the basis of registered Will of Sharda Prasad Gupta dated 25.3.1992.
6.During the pendency of the Original Suit No. 81 of 1994 and after death of Sharda Prasad Gupta, Anand Gupta and Amit Gupta and Ashish Gupta, sons of late Sadan Gupta filed a subsequent suit No. 769 of 1995 against other two brothers namely Madan Mohan Gupta and Ajit Gupta, stating that House No. 264 had been bequeathed to them by Sharda Prasad Gupta, vide Will dated 25.3.1992, and, since the house is not being vacated by the defendants as such suit was filed with the following prayers:-
" By way of permanent injunction, defendants and their agents be restrained from interfering in the right and possession of the plaintiff over House No. 264 and the defendants be further restrained from making any alterations or changing the nature of 2 rooms each in possession of the two defendants and their forcible entering possession over any other part of the house. Further prayer was made that the defendants be evicted from the portion in their possession and such possession be delivered to the plaintiff."
This subsequent suit was filed within a month of the death of father Sharda Prasad Gupta.
7.A third suit came to be filed by the two defendants of Original Suit No.769 of 1995 namely Madan Mohan Gupta and Ajit Gupta against Anand Gupta and the sons of late Sadan Mohan Gupta for a declaration that the alleged Will dated 25.3.1992 is null and void and the same be cancelled. In this suit, plaintiffs Madan Mohan Gupta and Ajit Kumar Gupta specifically averred in para No. 7 of the plaint that pursuant to the family settlement dated 8.8.1990, all brothers have been put in possession of the house which has come to their share and their names have also been mutated in the municipal record.
8.Since the dispute in aforesaid 3 suits arose out of the same property, therefore, vide order dated 11.8.1998, these 3 cases were clubbed together and Original Suit No. 81 of 1994 was made the leading case.
9.It appears that Madan Mohan Gupta and Ajit Kumar Gupta, who were defendants in the first two cases and plaintiffs in the third Suit, failed to appear and contest the suit before the court concerned, and as such an order was passed for the suits to proceed ex-parte as against them. This order was transcribed in the Original Suit No. 769 of 1995 on 23.7.2001 and was also transcribed in Original Suit No. 81 of 1994 on 1.2.2002, which was the leading case.
10.Once the suit proceeded ex-parte, plaintiffs of the first two suits adduced their ex-party evidence including statement on affidavit of the marginal witnesses of the Will namely Mahendra Nath Mishra and Kamlesh Kumar Srivastava to proof the Will. However, defendants-appellants, apart from filing written statement in two suits and plaint in O.S. No. 560 of 1990 failed to appear and no evidence whatsoever came to be filed on their behalf.
11.Trial court proceeded to hear and decide the suit ex-parte as against defendants vide its judgment and decree dated 15.11.2002. The trial court formulated five issues for consideration of cause raised in the suit. Trial court came to the conclusion that as no probate or letter of administration had been obtained, as such, the Will dated 25.3.1992 was null and void and that in order to prove the Will, it was necessary that attesting witnesses be produced but as this had not been done and merely an affidavit had been filed as such, the requirement of proving Will as contemplated in Section 68 of the Indian Evidence Act was not met. Consequently, the Original Suit No. 81 of 1994 was dismissed. The copy of the judgment and decree dated 15.11.2002 was directed to be placed on record of the two other connected suit Nos. 560 of 1995 and 769 of 1995.
12.Aggrieved by the judgment and order dated 15.11.2002, plaintiff of Original Suit No. 81 of 1994 and 769 of 1995 filed Civil Appeal Nos. 161 of 2002 and 162 of 2002 which have been allowed and judgment and decree of the trial court has been set aside, and Original Suit No. 81 of 1994 and 765 of 1995 have been decreed. It is against these orders passed in appeals by the lower appellate court that defendants to the two suits have filed the instant second appeals.
13.Learned counsel for the appellants submit that the conclusion drawn by the trial court on the question of Will not being proved in terms of Section 68 of the Indian Evidence Act was absolutely just and valid and required no interference in appeal. It is also contended that the lower appellate court could not have proceeded to adjudicate the issue, in respect of which, no discussion or finding had been returned by the trial court and, therefore, even if the appellate court found the conclusion of trial court on the aspect of proving of Will to be incorrect, it ought to have remitted the matter to the trial court for such issues to be determined by Trial court at the first instance in terms of Order-41 Rule-23 and 23-A of the Code and it could not have proceeded to decree the suit of the plaintiff in its entirety, as has been done. Submission is that the judgment and decree of the lower appellate court is perverse and is based on no evidence apart from being contrary to the Scheme of the Code and, therefore, the same is liable to be set aside in the present appeals.
14.Learned counsel for the respondents, on the other hand, submits that amendment introduced vide Act No. 22 of 2002 w.e.f. 1.7.2002, and the State amendment under Order-19 Rule-1A CPC permits ex-parte evidence to be taken on affidavit and as the plaintiffs were not appearing, any question of cross-examination of the witnesses was not to arise, and therefore, the lower appellate court has rightly reversed the finding of the trial court on the aspect of proving of Will. Learned counsel further submits that Section 107 (2) CPC permits the lower appellate court to decide all question of law and facts once evidence was available on record as the powers of the appellate court are co-extensive with that of the Trial Court. It is further submitted that Order-41 Rule-24 of the Code clearly lays down that where evidence on record is sufficient to enable the appellate court to pronounce judgment after resettling the issue, if necessary, the appellate court would be justified in finally determining the suit, notwithstanding the fact that the judgment and decree, under appeal, had proceeded on an issue, other than on which the appellate court proceeds.
15.It is apparent from record that Second appeal No. 606 of 2009 was admitted for hearing on substantial questions Nos. 9,10 and 11 formulated in the memo of appeal, which are reproduced:-
"9. Whether the appellate court is justified in allowing the appeal by ignoring the mandatory provisions of Section 68 of Evidence Act?
10. Whether, the appellate court has jurisdiction to exercise the power of trial court which the trial court has not exercised:
11. Whether the issues which were not decided by the Trial court can be decided by the lower Appellate Court?"
16.Learned counsel for the appellant in connected appeal No.774 of 2015 submitted that the substantial questions formulated in Appeal No.606 of 2009 would include the substantial question arising in connected appeal as well and, therefore, submission on the three substantial questions have been advanced by the learned counsel for the parties in both the appeals and the appeals are being decided upon it.
17.Before proceeding to specifically deal with substantial questions enumerated above, it would be necessary to notice certain facts which are pertinent for adjudicating the issue raised in these appeals.
18.It is not in dispute that the defendants-appellants had been served in the suits and they had also filed their written statement .Appellants also filed Original Suit No. 560 of 1995 for cancellation of the registered Will executed by Sharda Prasad Gupta. Appellants, however, failed to contest the pending litigation or to adduce any evidence in support of their case. It is only during the stage of appeal that they have contested the matter but even at that stage no evidence was filed by them. No explanation has been submitted as to why the defendant-appellant did not contest the suit proceedings or adduced any evidence. The only explanation given in para-10 of the affidavit filed in support of the stay application in Second Appeal No. 606 of 2009 is that the appellants' counsel who was contesting on their behalf met with a road accident and died on 22.9.2005 and, therefore, the defendants/ appellants could not contest the proceedings. This explanation, on its face value, is not acceptable as the suit had been decided in November, 2002, and the death of the lawyer in the year 2005 could not be a ground for their failure to adduce evidence from 1995 to 2002 or even appear before the trial court upto the year 2002. A supplementary affidavit has also been filed before this Court on 20.5.2015, bringing on record an application for recall of the ex-parte judgment dated 15.11.2002 in Original Suit No. 560 of 1995 before the Trial Court on 1.12.2013, which has been registered as Misc. Case No. 80 of 2013. Appellants have prayed for recall of the order dated 15.11.2002 and restoration of Suit No. 560 of 1995 Since Misc. Case is pending before the trial court, this court refrains from making any further comments on this application apart from noticing its filing.
19.It is also not disputed to the appellants that the family settlement had been arrived at between the parties and the defendant-appellants were a party to it. Para-2 of the written statement filed by appellants in Original Suit No. 81 of 1994 categorically admits that in accordance with the family settlement, names of the parties have been recorded over their respective houses/ shares. Para-7 of the plaint in Original Suit No. 560 of 1995 categorically states that in accordance with the family settlement dated 8.8.1990, all members have been put in possession of their respective houses falling in their shares and their names have also been mutated in the municipal records. Thus the factum of family partition dated 8.8.1990 and receiving of specific share as per it, by the defendants- appellants is admitted. A feeble attempt has been made by the learned counsel in para-41 of the written argument filed in Second Appeal that the admission made in para-7 of O.S. No. 560 of 1995was due to typographical error and that, infact, appellants have not got any possession of the property transferred to them through family settlement. Reference has also been made to the certain proceedings of P.A. Case No.21 and 22 of 2012 etc. The submission of the learned counsel that the admission made in para-7 is a typographical error, cannot be accepted. No such stand, at any point of time, has been taken either before the trial court or before the lower appellate court or even before this Court and raising of such a plea, by way of written argument, after the arguments have been concluded, is noticed only to be rejected. Similarly, allegation of dispute with tenants or filing of release application etc. has not been brought on record. There is no application filed under Order-41 Rule-27 CPC to accept such evidence. This court, therefore, cannot permit such material to be taken on record alongwith the written argument and such materials, therefore, not being part of the record of the proceedings of appeal, is liable to be ignored.
20.This Court now proceeds to examine the submission of the learned counsel raised in the present appeal on the substantial questions, noticed above. The first question formulated for consideration in the appeal is as to whether the appeal could be allowed by the lower appellate court, ignoring the mandatory provision of Section 68 of the Evidence Act. Section 68 of the Evidence Act is reproduced below:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied".
It is not in dispute that Will dated 25.3.1992 is registered. The marginal witnesses to the Will have filed their affidavit, explaining the manner in which the Will had been executed by the testator in presence of the witnesses. Before the lower appellate court, it was clear that the appellants, who were plaintiff of original Suit No. 560 of 1995 had not adduced any evidence in support of their plea for cancellation of Will. Admittedly, the suit was proceeding ex-parte in the instant case. Order-18 Rule-1 CPC, consequent upon its amendment, vide Act No. 22 of 2002 clearly permits examination-in-chief of a witness to be on an affidavit with copies thereof, supplied to the Opp. Party, who calls him for evidence. Moreover, amendment has been incorporated under Order-19 Rule-1A in State of U.P. on 10.2.1981 which reads as Under:-
"Allahabad.- In Order XIX, after rule 1 insert the following rule, namely:-
"1A. Power to permit ex parte evidence on affidavit.- Where the case proceeds ex parte the Court may permit the evidence of the plaintiff to be given an affidavit."
[Vide Notification No.121/IV-h-36 D, dated 10th February, 1981.] Lower appellate court, on the basis of the provisions noticed above, came to a conclusion that once the affidavit of marginal witnesses to the Will had been brought on record in the suit which was proceeding ex-parte , the requirement of Will being proved stood discharged by the plaintiff. Even otherwise, the appellants had failed to discharge their burden of challenging the Will by adducing evidence and in the facts of the case were, the requirement of proving Will as per Section 68 of the Act had been met. The decisions, which have been cited before the lower appellate court and also before this Court in order to contend that the Will had not been proved, are either prior to the amendment of Order-18 Rule-1 of the Code or do not relate to the Allahabad amendment in the Code under Order-19 Rule-1A CPC .The reasons assigned by the lower appellate court to hold that the Will stood proved by the plaintiff, is in conformity with the provisions of Section 68 of the Evidence Act read with applicable provisions of the Code and, therefore, the first substantial question framed for consideration in the appeal is answered by holding that the lower appellate court was justified in coming to a finding that the Will was proved in accordance with Section 68 of the Evidence Act and the submission of the appellants that the provisions of Section 68 of the Act have been ignored cannot be accepted.
21.The other two substantial questions which have been formulated for consideration in the appeal relates to the jurisdiction of the appellate court while exercising its powers under Section 96 of the Code. For the purposes of examining the question, it would be appropriate to first notice the powers of appellate court, as are confessed upon it under Section 107 of the Code which is reproduced below:-
"107. Powers of appellate court.- (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power--
(a) to determine a case finally,
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein".
Order-41 Rules-23,23-A and 24 are also relevant for the present purpose and, therefore, are being quoted reproduced:-
" 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 r issues shall be tried in the case so remanded, and shall send a cop of its judgment and order to the court from whose decree the appeal is preferred, with 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.
23A. 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.
24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds".
22.In the present case, plaintiffs had adduced evidence in support of its case, which was available on record. The case set up in the suit regarding family settlement, having been acted upon, had been admitted by the defendants. Once the family settlement had been acted upon and the defendants-appellants had been given residential accommodation exclusively as per the family settlement and the house in question was retained exclusively by Sharda Prasad Gupta, defendants-appellants were left with no right over the said house. The licence granted to them by the owner stood withdrawn and the suit was filed by the father himself. In such circumstances, the appellate court found sufficient evidence on record to determine the case finally. Provisions of Civil Procedure Code, particularly sub section 2 of Section 107 read with Order-41 Rule-24 clearly vests jurisdiction in the appellate court to finally determine the issue raised in the suit and pronounce judgment even when the trial court had decided the suit on a different question. The submission advanced by the learned counsel for the appellants based upon the judgment of the Apex Court in 2012 (5) SCC, 540 Jagannathan Vs. Raju Sigamani and another is clearly distinguishable. In this judgment, the Hon'ble Apex Court dealt with a case where the trial court passed a decree on preliminary issue which had been reversed in appeal and the matter was remitted back to the trial court for fresh trial. The judgment of the Hon'ble Apex Court was in the context of the facts of the case which were noticed in para-11 of the judgment and the remand order passed in appeal under Order-41 Rule-23A in an appeal under Order-43 Rule 1(u) of the Code was on the facts of the case which have no applicability in the facts of the present case. The other decision of Hon'ble Apex Court, relied upon by the learned counsel for the appellants reported in AIR 2011 SC 3063 M/s Divya Exports Vs. M/s Shalimar Video Company and others, also is not of much help to the appellants' case inasmuch as the judgment of Hon'ble Supreme Court dealt with the case in which necessary issues had not been framed by the Trial Court and, therefore, the parties had no opportunity to lead evidence and it was, in this context that the Apex Court was pleased to observe that the exercise of power by the appellate Court under Order-41 Rule-24 CPC would not be justified. This Court, however, finds that in the facts of the present case, necessary issues including the ownership of the plaintiffs over suit property i.e. the status of the defendants-appellants as plaintiffs had been clearly framed. An issue was also framed as to whether the defendants is liable to be evicted from the suit property on the basis of the plaint allegations. Evidence in support of the plaintiffs' case was available on record and, therefore, in the facts of the present case, the judgment relied upon in M/s Divya Exports (Supra) also have no applicability. This court further finds that the judgment relied upon by the appellants reported in 2015 (109) ALR, 514 also has no applicability to the facts of the present case as the finding returned by the trial court on the question of Will not being proved had been specifically reversed, where after, a fresh finding was returned on the issue and, therefore, the provision of Order-41 Rule-31 CPC were duly complied with. Some of the other judgments, which have been relied upon by the learned counsel for the appellants, on the scope of Section 100 CPC, is not required to be elaborately dealt with as this court is satisfied that the judgment and decree of the lower appellate court is in accordance with law and requires no interference in present appeal.
23.In view of the discussions made above, this court comes to the conclusion that the lower appellate court had jurisdiction to adjudicate the dispute finally, even if it was not decided by the trial court, and the lower appellate court was justified in deciding the Suit finally even on such issues which had not been adjudicated by the trial court, in view of the provisions contained in Section 107(2) read with Order-41 Rule-24 CPC.
24.In view of the aforesaid conclusions contained on the substantial question formulated for consideration, there is no substance in the instance second appeals and the same are accordingly dismissed.
Order Date:- 1.9.2015 n.u.