Delhi High Court
Mawasi Ram (Deceased) Thr Lrs vs Tej Ram Sharma & Ors on 21 March, 2022
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 44/2019
MAWASI RAM (DECEASED) THR LRS ..... Appellant
Through: Mr.Sandeep Kapoor, Adv.
versus
TEJ RAM SHARMA & ORS. ..... Respondents
Through: Mr.Tara Chand Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (O R A L)
% 21.03.2022
1. This is a second appeal under Section 100 of the Code of Civil
Procedure, 1908 challenging an order dated 20th July, 2018, passed by
the learned Additional District Judge ("the learned ADJ") in RCA
20172/2016, which was filed by the appellant challenging a judgment
dated 15th July, 2013 of the learned Civil Judge.
2. The learned ADJ has, in para 12 of the impugned judgment,
held that RCA 20172/2016 was not maintainable, as the order of the
learned Civil Judge was passed on a petition under Section 6 of the
Specific Relief Act. She has relied, for the said purpose, on the
judgment of this Court in ITC Ltd. v. Adarsh Cooperative 1, in which
it has been held, categorically, that an unsuccessful litigant in a suit
preferred under Section 6 of the Specific Relief Act could not
maintain an appeal, as the suit proceedings were summary in nature
(2013) 10 SCC 169
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.03.2022
15:49:48
and the right of appeal, against an order passed in such proceedings
stands expressly excluded by Section 6(3) of the Specific Relief Act.
3. Having held the appeal not to be maintainable and deserving of
dismissal on that ground, the learned ADJ went on, nonetheless, to
pass detailed orders and to dismiss the appeal on merits as well.
4. In the present second appeal, preferred against the aforesaid
judgment dated 20th July, 2018 of the learned ADJ, this Court, vide
order dated 15th April, 2019, framed the following substantial question
of law:
"Whether the Appeal in RCA No. 20172/2016 that was
pending before the learned ADJ-01, South East, having been
held to be not maintainable, could have been dismissed on
consideration of merits of the case"
5. Once the said first appellate Court had held the appeal of the
appellant not to be maintainable, it had rendered itself coram non
judice. It would not, therefore, have proceeded to pass any order on
the merits of the case. One may refer, in this context, to the judgment
of a learned Single Judge of the High Court of Allahabad in Bansraj v.
Moti2, specifically to the following paragraphs:
"20. This Court may remark at once that the lower
Appellate Court in returning its findings about the issue of
jurisdiction of the Civil Court being barred, has held it barred,
both under Section 331 of the U.P.Z.A. & L.R. Act and
Section 49 of the Consolidation Act. In case it were to be held
that the Civil Court has no jurisdiction to try the suit in view
of the bar under Section 331 of the U.P.Z.A. & L.R. Act, this
Court is of opinion that there would be no further necessity
2019 (11) ADJ 185
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.03.2022
15:49:48
for the lower Appellate Court to opine about the bar under
Section 49 of the Consolidation Act. This is for more than one
reason. In the event, the suit is held barred under Section 331
of the U.P.Z.A. & L.R. Act, the moment the Civil Court has
reached that conclusion, it should have laid its hands off from
opining about the suit being barred under Section 49 of the
Consolidation Act. The Civil Court, once it holds its
jurisdiction ousted, recording any other finding about the bar
to that suit under some other provision of law, would be of no
consequence. The Civil Court having found itself to be a
Court, not competent to try the suit, all its findings on any
other or further issues, would also be without jurisdiction. It
is not that, that the Civil Court would on the one hand hold
that it has no jurisdiction to try the suit vis-à-vis its subject
matter and at the same time pronounce upon other issues of
fact and law. The issue whether the plaintiffs' claim is barred
under Section 49 of the Consolidation Act, is a question of
law affecting the rights of the plaintiffs. It can be decided by a
Court of competent jurisdiction alone; not by a Court that
holds itself out of jurisdiction."
(Emphasis supplied)
6. The Supreme Court has also, in a recent decision, in Ajay
Kumar Das v Divisional Manager 3, observed that, once the High
Court had held an appeal filed before it to be barred by time, it could
not have proceeded to pass any orders on the merits of the appeal.
This principle would apply, mutatis mutandis, to a case where the
appeal before the First Appellate Court was held not to be
maintainable on any other ground as well.
7. In view thereof, the aforesaid substantial question of law has
necessarily to be answered in favour of the appellant and against the
respondent.
2022 SCC OnLine SC 93
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.03.2022
15:49:48
8. The impugned judgment, therefore, to the extent it dismisses the
First Appeal filed by the appellant before the learned ADJ on merits,
cannot sustain and is accordingly, quashed and set aside.
9. The appeal is allowed to the aforesaid extent with no orders as
to costs.
C. HARI SHANKAR, J
MARCH 21, 2022/kr
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:24.03.2022
15:49:48
