Jammu & Kashmir High Court
Jagdish Raj And Others vs Respondent(S) on 28 March, 2023
Bench: Rajnesh Oswal, Puneet Gupta
HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU
Reserved on : 14.12.2022
Pronounced on: 28.03.2023
LPA No. 215/2018
Jagdish Raj and others .....Appellant(s)/Petitioner(s)
Through: Mr. R. S. Thakur, Sr. Advocate with
Mr. Ashwani Thakur, Advocate
Vs
..... Respondent(s)
State of J&K and Ors.
Through: Mr. Rohit Kohli, Advocate for R 1 to 6
Mr. R. K. S. Thakur,Advocate for R-7
Mr. G. S. Thakur, Advocate for R-8.
Mr. Rajiv Kumar Sharma, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGEMENT
Per Rajnesh Oswal-J
1. This Intra-Court appeal is directed against the order dated 03.10.2018 passed by the learned Single Judge, whereby an application for leave to file an appeal against the judgment and decree dated 17.03.2005 passed by the Court of 2nd Addl. District Judge, Jammu (herein after referred to as the trial court) filed by the respondent Nos. 1-6 was allowed and delay in filing the appeal was also condoned.
2. The order dated 03.10.2018 has been impugned by the appellants on the ground that the learned Single Judge without considering the objections of the appellants to the application seeking leave to file an appeal and without granting any opportunity to the appellants to object the application for condonation of delay, has allowed both the applications. It is stated that the 2 LPA No. 215/2018 learned Single Judge proceeded on the concession of the judgment-debtor (respondent No.7) against whom the execution proceedings were pending before the Executing Court i.e. First Additional District Judge, Jammu, wherein the judgment-debtor i.e. respondent No. 7, has been resorting to the delaying tactics in order to prolong the execution of judgment and decree dated 17.03.2005 passed by the trial court. Rather the fact remains that the appellants and the respondent No.7 were the only contesting parties before the learned trial court but the learned Single Judge proceeded on the concession granted by the learned counsel for the judgment-debtor. It has also been stated by the appellants that the respondents 1 to 6 cannot claim ignorance of the decree as respondent No. 7-judgment debtor has been trying to delay the execution proceedings for the last more than 13 years. It has been further pleaded that the application for condonation of delay was filed by the respondent Nos. 1 to 6 on the ground that they were not parties to the suit, in which the judgment and decree dated 17.03.2005 was passed and there was nothing before the learned Single Judge as to how the respondent Nos. 1-5 claim to be the beneficiaries of trust and how they were adversely affected by the said decree. In nutshell, the order impugned has been assailed by the appellants on the ground that the learned Single Judge passed the same on the concession of respondent No. 7, who was not in fact the contesting party being judgment-debtor and that the appellants had no locus to file the appeal against the judgment and decree as they were not the "persons aggrieved". Further that the application for condonation of delay has been decided by the learned Single Judge in view of the „no serious objection‟ from other side and the other side in fact was the judgment debtor i.e. the respondent No.7.
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3. Mr. R. S. Thakur, learned senior counsel for the appellants vehemently argued that the appellants had filed a suit under Order 37 of Code of Civil Procedure and compromise decree for an amount of Rs. 30 lacs was passed in favour of the appellants and against the respondent Nos. 6 & 7. The appellants filed the execution petition but the respondent No. 7 continued to prolong the execution proceedings by filing one or the other application and sometimes through the strangers. He further submitted that during the pendency of the execution proceedings, respondent No. 6 through Receiver i.e. respondent No. 9 executed deed of simple mortgage for the land measuring 1 kanal and 4 marlas situated at Toph Sherkhania, Jammu in favour of respondent No. 8 for an amount of Rs. 20 lacs. It is further argued that the respondent Nos. 1 to 5 cannot be considered as "persons aggrieved"
so as to file an appeal against the judgment and decree for the recovery of amount of Rs. 30 lacs along with interest. He also laid stress that the appeal was hopelessly time barred and the learned Single Judge has passed the judgment impugned on the premise of no serious objection from other side, whereas the fact remains that neither the appellants nor their counsel was present on the date when the order was passed.
4. Per contra, Mr. R. K. S. Thakur appearing for respondent No. 7 raised preliminary objection with regard to the maintainability of the Letters Patent Appeal against the order of learned Single Judge in exercise of appellate jurisdiction in view of Section 100-A CPC. In support of his contention, he placed reliance upon the judgment of Supreme Court in Mohd Saud and another vs. Dr. (Maj) Shaikh Mahfooz and other, 2011 AIR (SC) 485.
5. Mr. Rohit Kohli, learned counsel for respondent Nos. 1 to 6 while supporting the arguments raised by Mr. R. K. S. Thakur submitted that the respondent 4 LPA No. 215/2018 Nos. 1 to 5 were the beneficiaries of the trust i.e. respondent No. 6 and they were not arrayed as defendants before the trial court, as such, they being the aggrieved persons have locus to file the appeal against the judgment and decree dated 17.03.2005.
6. Mr. G. S. Thakur, learned counsel for the respondent No. 8 argued that appropriate orders as this Court deems fit, may be passed.
7. Heard learned counsel for the parties and perused the record.
8. The brief and relevant facts necessary for the disposal of this appeal are that the appellants filed a suit under Order 37 of Code of Civil Procedure against the respondent Nos. 6 & 7. The respondent No. 7 was the sole trustee of respondent No. 6. The said suit was compromised that led to the passing of the judgment and decree dated 17.03.2005 against the respondent Nos. 6 &
7. Thereafter, execution proceedings were also initiated against the respondent Nos. 6 & 7 and during the pendency of the execution proceedings in order to satisfy the judgment and decree dated 17.03.2005, the respondent No. 6 executed a simple mortgage deed for an amount of Rs. 20 lacs in favour of respondent No. 8. The respondent Nos. 1 to 6 thereafter filed an application seeking leave to file an appeal against the judgment and decree dated 17.03.2005 passed by the Court of 2nd Addl. District Judge, Jammu on the ground that they were the beneficiaries of the trust i.e. respondent No. 6 but were not arrayed as parties before the trial court and even were not parties to the compromise deed, which led to the passing of judgment and decree impugned. The respondent Nos. 1 to 6 also filed an application seeking condonation of delay of 1576 days in filing the appeal against the judgment and decree dated 17.03.2005.
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9. First issue that is required to be considered is as to whether this intra court appeal under Clause 12 of Letters Patent is not maintainable in view of bar created by Section 100-A of C.P.C. Section 100-A CPC is reproduced as under:
"Section 100-A: No further appeal in certain cases. Notwithstanding anything contained in any letters patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single judge of a High Court, no further appeal shall lie from the judgment, decision or order such single Judge in such appeal or from any decree passed in such appeal.
10. A plain reading of the section 100-A CPC would reveal that when a Single Judge has heard and decided an appeal either against original or appellate decree or order, no further appeal is maintainable. In other words, if Single Judge while exercising appellate jurisdiction either against the original decree or appellate decree or order finally determines the validity of the said decree or order, then the appeal against the said judgment and decree or order is not maintainable. Though word "order" has not been mentioned in the later part of Section 100-A of C.P.C but the Hon‟ble Apex Court in Mohd. Saud v. Dr. (Maj.) Sheikh Mahfooz, (2010) 13 SCC 517 has held as under:
"14. It may be noted that there seems to be some apparent contradiction in Section 100-A as amended in 2002. While in one part of Section 100-A it is stated "where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court" (emphasis supplied), in the following part it is stated "no further appeal shall lie from the judgment and decree of such Single Judge". Thus while one part of Section 100-A refers to an order, which to our mind would include even an interlocutory order, the latter part of the section mentions judgment and decree."
11. Further the Apex Court in judgment(supra), in para-15 has observed as under:
"15. To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute. If we look 6 LPA No. 215/2018 at the matter from that angle it will immediately become apparent that the LPA in question was not maintainable because if it is held to be maintainable then the result will be that against an interlocutory order of the District Judge there may be two appeals, first to the learned Single Judge and then to the Division Bench of the High Court, but against a final judgment of the District Judge there can be only one appeal. This in our opinion would be strange, and against the very purpose of the object of Section 100-A, that is, to curtail the number of appeals."
12. So far as the present controversy is concerned, the learned Single Judge has not decided the appeal finally and by entertaining the intra court appeal against the order passed by learned Single judge, this Court would not be determining the validity of the judgment and decree or order passed by the learned Single Judge, who in turn determined the validity of the judgment and decree passed by the learned trial court, but would examine the validity of the order passed by learned Single Judge, whereby the respondent Nos. 1 to 5 have been permitted to prefer an appeal against the judgment and decree dated 17.03.2005 and also the delay has been condoned. As such, we are of the view that Section 100-A CPC would not operate as a bar in entertaining the intra court appeal.
13. Now, it is to be seen whether the order impugned passed by the learned Single Judge falls within the meaning of the "Judgment" under Clause 12 of the Letters Patent. For facility of reference, Clause 12 of the Letters Patent is reproduced as under:
"And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being and order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence) of one judge of the said High Court or one judge or any Division Court and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of "one Judge of the said High Court or one judge of" any Division Court, a consistently with the provisions of the civil procedure code, made in 7 LPA No. 215/2018 the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of the judges of the said High Court or of such division court shall be to us, our Heirs or Successors and be heard by our Board of Judicial Advisers for report to us."
14. A perusal of Clause 12 of Letters Patent reveals that an appeal shall lie from the judgment passed by the learned Single Judge to the Division Bench, provided the judgment is not passed in the exercise of appellate jurisdiction in respect of decree or order made in the exercise of appellate jurisdiction by a Court subject to superintendence of the High Court. It means, if a judgment is passed by the Single Judge either in original proceedings or in an appeal against original decree of a Court subordinate to it, the judgment would be appealable. In case the learned Single Judge decides an appeal against original decree of court subordinate to it, then further appeal would also not lie in view of bar created under Section 100-A CPC. Also, if the judgment is passed by the Single Judge in exercise of appellate jurisdiction in respect of decree or order made in the exercise of appellate jurisdiction by a Court subordinate to the High Court, then the judgment will not be appealable before the Division Bench of the High Court. The order passed by the learned Single Judge that is being examined by this court is not an order that has determined the validity of the order passed by the trial court or appellate court. The same view has been expressed by the Coordinate Bench of this Court in "Doulat Ram & Anr. Vs. Roop Chand & Ors. [2021(4) JKJ (HC) 165], in which one of us Justice Puneet Gupta was also a member.
15. So far as instant case is concerned, respondents Nos. 1 to 5 were admittedly not parties before the learned trial Court and the appellants have raised 8 LPA No. 215/2018 serious dispute with regard to their locus to prefer an appeal against the judgment and decree passed against respondents no. 6 & 7 by way of compromise. In Shah Babulal Khimji v. Jayaben D. Kania (1981) 4 SCC 8, the Hon‟ble Apex Court has held that whenever a Judge trying a suit, decides a controversy affecting the valuable rights of one of the parties, then the same must be treated as a judgment within the meaning of Letters Patent. The judgment may be final judgment, preliminary judgment, intermediary or interlocutory judgment. Orders though interlocutory but which decide matters of moment or affect valuable rights of the parties or work serious injustice to the party would fall within the purview of "judgment" of clause 12 of Letters Patent. The appellants have earned a judgment and decree, regarding which the execution proceedings are also pending before the Executing Court and the learned Single Judge by permitting the respondents Nos. 1 to 5 to file an appeal has in fact granted them the locus to challenge the judgment and decree, therefore, has determined the rights of the parties and thereby causing prejudice to the appellants. Not only this, the learned single Judge has condoned the delay of more than one thousand days in preferring the appeal against the judgment and decree passed against respondents Nos. 6 & 7 on the basis of "no serious objections" by the respondent No.7 who in fact always wanted the setting aside of judgment and decree passed by the trial court. As the order passed by the learned single Judge has affected vital rights of the appellants, we are of the view that the same amounts to judgment in terms of clause 12 of Letters Patent and this intra-court appeal is maintainable against the order impugned, passed by the learned Single Judge.
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16. Finally, we would examine as to whether learned Single Judge was justified in passing the impugned order in the present facts and circumstances of the case. A perusal of the record reveals that vide order dated 14.10.2019, notices were issued to the appellants and respondent Nos. 7 to 9 in an application seeking leave to file appeal. Objections to the application seeking leave to file appeal were filed by the appellants through their counsel, late Sh. Janak Raj Arora, wherein it was stated that respondent Nos. 1 to 5 are strangers to the suit filed before the learned trial court and in fact the application has been filed by respondent Nos. 1 to 5 in connivance with the judgment-debtor i.e. respondent no. 7. Further, a perusal of the order impugned reveals that the learned Single Judge allowed the application on the premise that the same has not been seriously opposed by the other side. On the same analogy, application for condonation of delay filed by respondent Nos. 1 to 5 was also allowed.
17. It needs to be mentioned here that the presence of Mr. R. K. S. Thakur, Advocate, has been reflected on behalf of the respondents. Thus, it is evident that no one appeared on behalf of appellants herein and the learned Single Judge observed that there was „no serious objection‟ from other side, this observation clearly has reference to Mr. R. K. S. Thakur, Advocate, who was representing respondent No. 7 i.e. judgment-debtor and not decree holders, who are appellants herein. More so, a perusal of the order impugned reveals that the learned Single Judge has not at all made reference to the objections filed by the appellants and leave has been granted just on the basis of averments made in the application. Be that as it may, once objections were filed by the appellants to the application seeking leave to file appeal, the 10 LPA No. 215/2018 learned Single Judge should have determined the issue as to whether the respondent Nos. 1 to 5 can be considered as the "persons aggrieved" by the judgment and decree dated 17.03.2005 passed by the 2nd Addl. District and Sessions Judge, Jammu wherein they were not parties.
18. Similarly, the application of condonation of delay was also allowed on the basis of the averments made there-under and in view of the „no serious objection‟ from other side. It needs to be further mentioned here that in the application seeking condonation of delay, no notice was ever issued to the appellants, as notice was issued only in application seeking leave to file appeal. The delay has been condoned without affording any opportunity to the appellants to oppose the same.
19. Viewed thus, we are of the considered opinion that the order dated 03.10.2018 passed by the learned Single Judge is not sustainable in the eyes of law and as such, the same is set aside. The matter is remanded back to the learned Single Judge for deciding the same afresh. In view of the long pendency of the proceedings, we request the learned Single Judge to make all possible efforts to dispose the matter as expeditiously as possible.
20. Disposed of.
(PUNEET GUPTA) (RAJNESH OSWAL)
JUDGE JUDGE
Jammu
28.03.2023
Karam Chand/Secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No