Vidya Sagar Sarin vs Md. Saifuddin Ahmed And 15 Ors
2021 Latest Caselaw 455 Gua

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GAHC010008532014




                           THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

          I.A.(Civil)/4267/2018

         VIDYA SAGAR SARIN
         S/O LATE RAI BAHADUR BISHAN DAS SARIN
         C/O PERFECT MOTORS PVT. LTD.
         G.S. ROAD
         GUWAHATI-781005
         IN THE DISTRICT OF KAMRUP (METRO)
         ASSAM


          VERSUS

         MD. SAIFUDDIN AHMED AND 15 ORS.
         S/O LATE HAFIZ @ HAFIZUDDIN AHMED
         R/O ULUBARI
         HAFIZNAGAR
         MOUZA-ULUBARI
         P.S.-PALTANBAZAR
         GUWAHATI-781007
         IN THE DISTRICT OF KAMRUP (METRO)
         ASSAM

         2:MD. HABIBUR RAHMAN
         S/O LATE HAFIZ @ HAFIZUDDIN AHMED
          R/O ULUBARI
          HAFIZANAGAR
          MOUZA-ULUBARI
          P.S.-PALTANBAZAR
          GUWAHATI-781007
          IN THE DISTRICT OF KAMRUP (METRO)
         ASSAM
          3:MD RAJIBUDDIN AHMED
         S/O LATE HAFIZ @ HAFIZUDDIN AHMED
          R/O ULUBARI
          HAFIZANAGAR
                                                   Page No.# 2/10

MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
4:MD REKIBUDDIN AHMED
S/O LATE HAFIZ @ HAFIZUDDIN AHMED
R/O ULUBARI
HAFIZANAGAR
MOUZA-ULUBARI
P.S.-PALTANBAZAR
GUWAHATI-781007
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
5:ON THE DEATH OF NURJAHAN BEGUM HER LEGAL HEIRS MAKIBUR
RAHMAN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
6:MD IMRAN HUSSAIN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
7:MD FARUK HUSSAIN
S/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
8:MUSTT. NURNAHAR BEGUM
D/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
9:MUSTT. BIALKISH BEGUM
D/O LATE NABABJAN ALI
R/O KUMARPARA
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP (METRO)
ASSAM
10:ON THE DEATH OF MUSTT. NOORATAN BEGUM HER LEGAL HEIRS
MUSTT. SALEHA BEGUM
W/O LATE ABDUL LATIF
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R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
11:MUSTT GULENA BEGUM @ GUL
W/O LATE SAFIQUL HUSSAIN
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
12:MUSTT SARIFA BEGUM
W/O MD KASEM ALI
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
13:MUSTT RAZIA BEGUM
W/O MD RAHMAN ALI SAKIA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
14:MD. HABIBULLA
S/O LATE MAZUDULLA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
15:MD. AZIZULLA
S/O LATE MAZIDULLA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
16:MD. FAIZULLA
S/O LATE MAZIDULLA
R/O HAFIZNAGAR TOWN
ULUBARI
GUWAHATI-781001
IN THE DISTRICT OF KAMRUP(M)
ASSAM
------------
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            Advocate for : MR. D BARUAH
            Advocate for : MR. R SARMA appearing for MD. SAIFUDDIN AHMED AND 15
            ORS.




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

10.02.2021

Heard Mr. D. Baruah, learned counsel for the applicant and Mr. R.K. Bhuyan, learned counsel for the opposite party nos. 1 to 4, who are the appellants in the connected appeal. Also heard Mr. S.J. Sarma, learned counsel appearing for the legal representatives of the deceased respondent no. 4 in the connected appeal, who have filed I.A.(C) 615/2015, I.A.(C) 616/2015 and I.A.(C) 617/2015, inter alia, praying for condonation of delay, for setting aside abatement and for substitution, which are pending adjudication. Also heard Mr. T.G. Baruah, learned counsel for the opposite party nos. 6 and 7 and Mr. M.B.U. Ahmed, learned counsel for the opposite party no. 5 and Mr. B.D. Deka, learned counsel for the legal representatives of the deceased opposite party nos. 12 and 16.

2. By this application under Order XXII Rule 10 read with section 146 and 151 CPC, the applicants are seeking leave to permit the applicant to participate and contest in the connected appeal. It is projected that during the pendency of the T.S. 37/1989, he had purchased 4 katha land vide 4 (four) separate sale deeds, bearing registered sale deed nos. 8399/2001, 8462/2001, 8487/2001 and 8555/2001. The learned counsel for the applicant has submitted that while purchasing the said land, the applicant was not aware of the pendency of the suit. Accordingly, it is submitted that there was devolution of interest in respect of 4K land, which was a part of the suit/ decreetal land and, as such, the applicant seeks to be impleaded in the connected appeal to secure his interest. It is submitted that although the learned trial Court had decreed the suit allowing partition and recovery of possession, but the Page No.# 5/10

decree was modified by the learned first appellate Court by common judgment and decree dated 10.10.2013 passed in T.A. No.1.2010 and T.A. No.2/2010, and the decree for recovery of possession was disallowed.

3. The opposite parties have all vehemently contested these two applications. The learned counsel for the opposite parties no. 1 to 4 has submitted that the applicant was arrayed as proforma defendant no.15 in the suit. However, the suit was decreed ex parte against the applicant. Hence, it is submitted that this is not a case to allow impleading under Order XXII Rule 10 CPC. However, it is submitted that the appellant no.1, who was the vendor of the said four sale deeds has assailed the decree and is taking steps in safeguarding the interest of the applicant.

4. The learned counsel for the opposite party nos. 6 and 7 has also submitted that the applicant has suffered an ex parte decree and cannot be impleaded in appeal. It is also submitted that in this application, the applicant has impleaded the opposite party no. 8, who had died on 13.07.2010. Accordingly, it is submitted that if this application is allowed, it would be an order against a dead person and, as such, a nullity. It is also submitted that as per the case projected by the applicant, it was claimed that the applicant and his son were in possession of a part of the suit/ decreetal land since 1960, which was much prior to the institution of the suit. Hence, it is submitted that this was not a fit case to allow the applicant to be impleaded under Order XXII Rule 10 CPC. The learned counsel has also referred to the affidavit- in- opposition and has made his submission on the merit of the purported claim of the applicant regarding title over a part of the suit/ decreetal land, but as the Court is only examining whether the applicant ought to be impleaded or not, there appears to be no necessity to examine the claim of the parties on merit at this premature stage. In support of his submissions, the learned counsel for the opposite party nos. 6 and 7 has referred to the case of (i) Mahesh Yadav & anr. Vs. Rajeshwar Singh & ors., (2009) 1 SCC (Civil) 454: (2009) 2 SCC 205 and (ii) Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) through LRs., (2018) 2 SCC Civil 282: (2018) 2 SCC 649.

5. The learned counsel for the opposite party no. 5 has also vehemently Page No.# 6/10

objected to this application. It is submitted that an ex parte decree has been passed against the applicant. The learned counsel also questions the legality of the right, title and interest which the applicant claims to have devolved on him, but as this is an application for impleading, the submission on the merit of alleged purchase of a part of the suit land by the applicant is not required to be examined at this stage.

6. The learned counsel for the opposite parties no. 12 and 16 had adopted the submissions made by learned counsel for the other opposite parties. It is further submitted that as the applicant was arrayed as defendant no. 15 in the suit, the appropriate provision which perhaps could be invoked for impleading the applicant as one of the respondent in the connected appeal would be Order XLI, Rule 20 of the CPC and not the provision of Order XXII, Rule 10 of the CPC. However, by referring to Sub-Rule (2) of Rule 20 of Order XLI of CPC, it is submitted that this Court would have no power to implead the applicant at this stage as the period for limitation prescribed for appeal has already expired. In this regard it is submitted that it is obvious that the purpose of the applicant to be impleaded in this appeal is not to support this decree. Hence, the intention of the applicant is to support the appellant to assail the decree, which he could not have done directly as the appeal, if any, by the proforma defendant no. 15 was barred by limitation. It is submitted that the applicant had neither preferred any appeal against the ex parte judgment and decree passed by the learned trial Court nor the applicant had applied for getting the ex parte decree set aside under Order IX Rule 13 CPC.

7. At the outset, it is reiterated that this is not the appropriate stage for the Court to examine (i) the question relating to right, title and interest which the applicant might have or might not have acquired by virtue of the four sale deeds, and (ii) as to the legality of the purported sale of a part of the suit/ decreetal land by the appellant no. 1 in favour of the applicant, because at present, the Court is examining whether or not to implead the applicant in the connected appeal. Accordingly, submissions made by the learned counsel for the opposite parties in so far as it touches the right, title and interest of the applicant or any parties to the connected appeal has not been examined at this stage, being unnecessary.

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8. On the perused of the LCR an anomalous situation has been observed. The applicant was indeed arrayed as proforma defendant no. 15 in the suit. However, the name of the applicant is not typed out in the judgment dated 23.11.2009 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati. The cause title relating to parties to the suit, as seen in the LCR are available at page 72 and 72(A) of the Memo of Appeal of RSA No. 129/2014. However, in the decree drawn up, the name of the applicant is reflected as the proforma defendant No. 15. Similarly, in the cause title of the common judgment dated 10.10.2013, passed by the learned Additional District Judge No. IV, FTC, Kamrup (M), Guwahati in T.A. No.1/2010 and T.A. No. 2/2010, the name of the applicant is not arrayed as one of the co- respondents. However, the name of the applicant is reflected as proforma respondent no.22 in the appellate decree prepared in T.A. No.1/2010. The learned counsel for the applicant has submitted that the LCR of T.A. No. 1/2010, does not indicate if the notice of appeal was served on the applicant. Be that as it may, as the Court is not hearing any application to assail the order to proceed ex parte against the applicant, that point has not been gone into, and left open to be decided in an appropriate point of time, if so raised.

9. Two cases were cited by the learned counsel for the opposite party nos. 6 and 7 in support his submission that as the applicant had suffered an ex parte decree, he is not entitled to be impleaded as a respondent in the connected appeal. Both the cases relate to well settled law relating to remedy available to a party suffering ex parte decree. Therefore, the cited case is nowhere near to the point canvassed. The Court fails to understand the purpose for citing the said two cases which are not at all an authority on the point that the parties suffering ex parte decree cannot be impleaded as a respondent in the appeal. The case of (i) Mahesh Yadav (supra) and (ii) Neerja Realtors (supra), were cited for no worthwhile purpose, rather, precious Court time was spent to deal with unnecessary citations.

10. After amendment to the provision of Order XLI, Rule 1 CPC by Act 46 of 1999, now a Memo of appeal is to be accompanied by a copy of the "judgment", which prior to the amendment was "decree". As already indicated herein before, the judgment passed by both the learned Courts below do not reflect the name of the applicant as a co-defendant or Page No.# 8/10

co-respondent. It is too settled that a decree is required to be prepared in consonance with the judgment. It may be mentioned that as per the LCR, the judgment of the learned trial Court and the first appellate do not contain the name of the applicant. This is not a case where the name of the parties is not reflected in the judgment and that the concerned clerk had inserted the name of the parties while issuing certified copy of the judgment. Therefore, even if not on account of devolution of interest as provided under Order XXII, Rule 10 CPC, but even otherwise, being the proforma defendant no. 15 in the suit and proforma respondent no. 22 in the first appeal, the applicant has a right to be arrayed as a party in this appeal. None of the learned counsel opposing this application has shown any provision of law or case law that there is a legal bar for a party who has suffered an ex parte decree for being impleaded as a co-respondent in the appeal.

11. The learned counsel for the opposite party nos. 12 and 16 had submitted that the connected appeal was otherwise not maintainable for non- joinder of the applicant as a necessary party. Hence, it was submitted that this application was in collusion with the appellants with a view to cure the defect in the memo of the connected appeal. In this regard, it would not be out of place to mention that the learned counsel for the applicant had projected that the learned trial Court had passed a preliminary decree for partition and that in so far as the decree for recovery of possession, the first appellate Court had interfered with the decree for khas possession. However, in the proceeding of T.Ex. Case No. 1/2010, the decree for recovery of khas possession was executed on 03.08.2018, which prima facie belies the apprehension of the learned counsel for the respondent nos. 12 and 16 that this application was collusive. The learned counsel for the respondent nos. 12 and 16 had expressed an apprehension that the purpose of the application was to assail the decree and to support the appellants. Assuming that the apprehension is correct, yet, the learned counsel opposing this application could not show any provision of law or a case law on the appoint that such an apprehension was a good ground to deny impleadment of the applicant in the connected appeal.

12. In this present application, the applicant claims that on 26.07.2018, the applicant came to know about the ex parte decree and on 31.07.2018, the applicant Page No.# 9/10

approached the learned executing Court to be heard. However, the petition filed by the applicant was not entertained, as such, the applicant moved this Court by filing CRP (I/O) No. 261/2018, and in the said revision, this Court by order dated 03.08.2018, directed the learned executing Court to hear the applicant. However, it is claimed that on the said date i.e. 03.08.2018, the decree as passed by the learned trial Court was executed without the appellate decree being brought to the notice of the learned executing Court. Thereafter, the present application was filed on 10.12.2018.

13. Under such circumstances, not only the applicant has been able to demonstrate that he has a right to appear in the connected appeal as a proper and necessary party, as he was proforma respondent no. 15 in the suit and proforma respondent no. 22 in T.A. No. 1/2010. Moreover, the applicant claims that a right has devolved on the applicant by transfer of a part of the suit land by the appellant no. 1. The judgment passed by the learned trial Court as well as by the learned first appellate Court does not contain the name of the applicant as one of the proforma defendant- respondents and moreover, the applicant was not arrayed as one of the respondents in the connected appeal. Under such circumstances, the Court is inclined to invoke the provisions of Order XLI Rule 20 CPC so as to implead the applicant herein as respondent no.7 in the connected R.S.A. 129/2014.

14. As regards the provisions of Sub- Rule (2) of Rule 20 of Order XLI of the CPC, the Court is of the considered opinion that in the present case in hand there are two reasons to allow impleading. Firstly, on account of the claim that interest over a part of the suit property had devolved in favour of the applicant, which is not disputed either by the learned counsel for the appellants or by the learned counsel vehemently objecting to this application. Secondly, the applicant was arrayed as proforma defendant no. 15 in TS No. 37/1989 and that the applicant was also arrayed as proforma respondent no. 22 in T.A. No. 1/2010. Hence, the applicant has a right to be arrayed as a co-respondent in the present appeal. Accordingly, the Court is of the considered opinion that notwithstanding the period of limitation for filing an appeal has expired, this is a fit and proper case to allow the applicant to be impleaded under Order XXII, Rule 10 CPC as applied for and also under the inherent jurisdiction of the Court available under the provisions of Order XLI, Rule 20(1) of the CPC.

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15. Before parting with the records, it is clarified that the Court has not adjudicated on the merit of the respective rights or claims of any party to the connected appeal, as such, nothing contained in the order would prejudice either side when the connected appeal is heard on merit.

16. The learned counsel for the appellant shall provide a copy of the memo of appeal with all enclosures to the learned counsel for the applicant within a week from today.

JUDGE

Comparing Assistant