Madhya Pradesh High Court
Umesh vs M/S Shriram Builders A Partership Firm ... on 24 July, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Prem Narayan Singh
1
NEUTRAL CITATION NO. 2025:MPHC-IND:18675
IN THE HIGH COURT OF MADHYA PRADESH
AT Indore
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 24th OF JULY, 2025
WRIT APPEAL No. 1416 of 2025
SMT. RACHNA BAI GURJAR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Mini Ravindran and Shri P.N.Saxena, Advocate for appellants.
Shri Amit Agrawal, Senior Counsel with Shri Nitin Phadke, Advocate for
respondent No.7.
Shri Ravindra Singh Chhabra, Senior Advocate assisted with Sachin Hirwa,
counsel for respondent No.6.
Shri Vishwajit Joshi, AAG for respondent/State.
Shri B.L.Pavecha, Senior Counsel and Shri Piyush Mathur, Senior Counsel with
Ms. Kirti Patwardhan as amicus curiae.
WITH
WRIT APPEAL No. 1432 of 2025
UMESH
Versus
M/S SHRIRAM BUILDERS A PARTERSHIP FIRM THROUGH
SHASHIBHUSHAN AND OTHERS
Appearance:
Shri Rajat Lohia - Advocate for appellant.
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 24-07-2025
15:23:46
2
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Shri Amit Agrawal, Senior Counsel with Shri Nitin Phadke, Advocate for
respondent No.6.
Shri Ravindra Singh Chhabra, Senior Counsel assisted with Sachin Hirwa,
Advocate for respondent No.7.
Shri Vishwajit Joshi, Addl.Advocate General for respondent/State.
Shri B.L.Pavecha, Senior Counsel and Shri Piyush Mathur, Senior Counsel
with Ms. Kirti Patwardhan, Advocate as amicus curiae.
Heard on : 17.07.2025
Delivered on : 24.07.2025
ORDER
Per: Justice Vijay Kumar Shukla
Both the appeals are filed by the interveners challenging the same impugned
order dated 21.4.2025 passed by Hon'ble Single Judge in WP No.7617/2021 by
which learned Single Judge allowed the petitioner and quashed the order dated
22.3.2021 passed by the Joint Commissioner and Registrar, Co-operative Societies,
Indore. Hence, same are taken together and dispose of by this common order. For
the sake of convenience, facts are taken from WA No.1416/2025.
[2] The present appeals under section 2(1) of Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypith Ko Appeal) Adhiniyam, 2005 are filed being
aggrieved by the order dated 21.4.2025 passed by learned Single Judge in Writ
Petition No. 7617/2021 whereby the petition filed by the respondent No.7-M/s
Shriram Builders has been allowed and the impugned order dated 22.3.2021 passed
by respondent No.4-Joint Registrar has been quashed. Consequently, the entire
action taken by the respondents against the writ petitioner pursuant to cancelling
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the permission dated 28.2.2003 has also been quashed. The petition was allowed.
[3] Counsel for the respondent No.7/writ petitioner raised a preliminary
objection regarding maintainability of Writ Appeal on the grounds that Writ
Appeal is not maintainable at the instance of an intervener or proposed intervener
and also that Writ Appeal has been filed by the proposed interveners without filing
an application for leave to appeal. He argued that the interveners have no
independent right but their right is to only make submissions in support of a
defendant/respondent in a pending lis and they are not entitled for any relief. Later
on the appellants filed an application for leave to appeal.
[4] In view of the aforesaid preliminary objection by the respondents, the
following questions/issues are for consideration before this Court:-
[i] Whether the Writ Appeal is maintainable at the instance of an
intervener or person aggrieved ?
[ii] Whether an intervener or person aggrieved can file an appeal or writ
appeal with an application for leave to file appeal ?
[iii] What are the considerations for a Court for granting leave to file an
appeal by an intervener or person aggrieved ?
[iv] What are the rights of an intervener and what relief can be granted to an
intervener in an appeal ?
[5] The parties were heard on the aforesaid issues at length.
[6] Learned counsel for respondent No.7/writ petitioner submitted that if
the statutory provisions relating to appeal under CPC and under M.P Uchha
Nyayalaya (Khand Nyaypith Ko Appeal) Adhiniyam, 2005 (hereinafter referred to
as 'the Adhiniyam, 2005') are critically examined, they do not provide that who
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can file an appeal. However, as a general principle and common law practice,
ordinarily the appeals are filed by person(s) who are a party to a lis. He further
argued that right of appeal is creature of a statute and does not inherently becomes
available even to a person who is party to the lis. An appeal can be filed only by a
party to a lis who has been conferred a right to file an appeal by statute. An
intervener who is not a party to the lis, cannot file an appeal. In support of his
submission, he has placed reliance on the judgments passed in the cases of Pula
Sukba Ramaiya Vs. Palagani Balrami Reddy (AIR 1949 Madras 91), Bal
Krishndas Agrawal Vs. Smt. Radha Devi (para 24 and 25) (AIR 1989 All 133),
Smt. Jatan Kuwar Golcha Vs. Ms. Golcha Property Pvt. Ltd. (AIR 1971 SC
374), State of Punjab Vs. Amar Singh (AIR 1974 SC 994), Banarasi Vs.
Ramphal (AIR 2003 SC 1989) and Dayaram Vs. Sudhir Batham (2012) 1 SCC
Alternatively, he argued that even if it is held that an appeal can be filed by
an intervener, still appeal would not be maintainable at the instance of present
appellants in view of the observations made by the learned Single Judge in
paragraph Nos.10 and 15. The learned Single Judge after considering the orders of
the Supreme Court had given a limited right to the intervener/appellants to be
heard in support of the impugned order.
[7] Shri Agrawal, learned Sr.Counsel after referring the aforesaid various
court orders argued that the rights of the appellants were already restricted by the
Apex Court to intervene in the matter. While dismissing the SLP by one of the
appellants Liladhar Singh, the Supreme Court in SLP(C) diary No.22314/2024 in
its order dated 18.6.2024 held that they have already lost the litigation and they
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have been held to be encroachers on the land in question and thus cannot be
granted permission to file present SLP raising an issue of who should get
possession of the land after encroachments are removed. In Special Leave Appeal
No.8427/2024 passed by the State of Madhya Pradesh, it is observed that
numerous applications for impleadment are being filed by the
inhabitants/encroachers and various third parties, the High Court was requested not
to entertain any such application in future and granted liberty to file such persons
fresh applications to support the order which is under challenge before High
Court. It was further observed that the independent rights are not to be agitated in
the pending proceedings. In the teeth of the aforesaid orders, the learned Single
Judge has rightly observed in paragraphs 12, 13 and 15 that the petitioners cannot
claim any right and the sale deed by the society in favour of the writ petitioners is
legal. It is further asservated that the appellants are not the person aggrieved and
no prejudice would come to them as they have not challenged the sale in favour of
the writ petitioner by the society in pending suits. Hence the appeal at their
instance is not maintainable. He filed a chart showing that most of the appellants
were party in those petitions. The details are given as under:-
S. Appellants Status of Status of Status of Status of Status of parties in
No in W.A Parties in Parties in parties in R.P parties in SLP
No.1416/2 M.P W.A. No.191/2024( SLP No.22314/2024(Lil
025 No.5156/2 No.1233/20 Rameshwari No.8428/2024 adhar vs. State of
019(Title 20(title vs. State of (Akshay vs. M.P)(dismissed on
Annexure Annexure M.P)(Dismisse Shri Ram 18/06/2024)[Court
'A') 'B') d on Builders)[Co order dated
20/02/2024)(tit urt order 18/06/2024{Annex
le Annexure dated ure 'F'}]
'C') 05/04/2024
(Annexure
'D')Court
order dated
06/08/2024(A
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nnexure E)]
1. Rachna Bai Petitioner Appellant Petitioner No.16 Petitioner No.14 Petitioner No.24
Gurjar No.27 No.27
2. Pankaj Tiwari Petitioner Appellant Petitioner No.4 Petitioner No.12 Petitioner No.19
No.23 No.23
3. Rakesh Petitioner Appellant Petitioner No.21 Petitioner No.8 Petitioner No.27
Karole No.18 No.18
4. Mona - - - - -
agrawal
5. Laxmibai - - Petitioner No.15 - Petitioner No.7
Chouhan
6. Narayan - - - - -
Yadav
7. Santosh Petitioner Appellant Petitioner No.13 Petitioner No.11 Petitioner No.23
Prabhari No.22 No.22
8. Suraj Singh Petitioner Appellant Petitioner no.2 Petitioner No.9 Petitioner No.17
Atale No.20 No.20
9. Ajanta Petitioner Appellant Petitioner No.25 - Petitioner No.12
Suryavanshi No.10 No.10
10. Rameshwari Petitioner Appellant Petitioner No.1 Petitioner No.10 Petitioner No.16
Choudhary No.21 No.21
[8] The impugned order has been quashed by Single Judge and the person
aggrieved who were respondents in the writ petition did not file appeal, therefore
the appeal at the instance of present appellants is not maintainable and the same is
liable to be dismissed on this count alone without examining the legality and
validity of the order passed by learned Single Judge.
[9] Considering the questions raised being of general importance, the
members of the Bar were requested to address on the larger issue as amicus curiae.
Shri B.L.Pavecha and Shri Piyush Mathur, learned Senior Counsels rendered their
valuable assistance to the court to decide the said issues.
[10] Shri Pavecha, learned Senior Counsel submitted that an appeal at the
instance of an intervener is not maintainable. He referred the provisions of section
96 CPC and also section 2(1) and (3) of the Adhiniyam. He submitted that 'right to
appeal' is neither fundamental nor inherent right of a citizen. It is purely a creature
of statute and is exercisable in accordance with and within the contours of the
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statutory provision creating that right. In support of his submission, he placed
reliance on the judgments in the case of N. Swain and another Vs.
B.K.Mohapatra and others, 1970(3) SCC 321, Saraswati Industrial
Syndicate Vs. Commissioner of Income Tax (1999) 3 SCC 141, Jeevan Singh
Chhatwal Vs. Bank of Baroda 2014 SCC Online MP 2103 and Vilas Dadar
Chavan Vs. Kiran Ashok Patil Dagaonkar, (2009) 1 Mh.L.J. 786.
[11] Shri Piyush Mathur, learned Senior Counsel urged that a general law
cannot be that an appeal is not maintainable at the instance of a intervener. He
argued that maintainability of appeal at the instance of an intervener would depend
upon the facts of each case. He cited certain situations on which an appeal at the
instance of intervener can be entertained and also quoted situations where an
appeal by intervener would not be maintainable. He cited the following situations
where the appeal would be maintainable by an intervener :
(i) if the order impugned entails civil consequences on a right of the
intervener
or
(ii) the intervener has been permitted by the Court in a proceeding to
participate actively and the judgment impugned effects his substantive independent
rights.
or
(iii) denial of an appeal would lead to miscarriage of justice to the intervener
where the judgment impugned deals with public law or constitutional law.
or
(iv) denial of appeal would defeat the principles of natural justice and would
cause irreparable loss to an intervener.
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or
(v) where prayer for intervention is rejected but still it affects substantive
right of an intervener.
or
(vi) where the issue decided deals with public policy.
The Appeal shall not be maintainable at the instance of intervener in the
following two situations :
(i) where no direct prejudice is caused to him by impugned judgment.
or
(ii) If he has not been vigilant for his rights by not participating in the
proceedings.
[12] In support of his submission, he placed reliance on the judgments
passed in the case of Ramesh Hirachand Kundanmal (1992) 2 SCC 524,
Kasturi Vs. Iyyamperumal and others (2005) 6 SCC 733, Sumtibai and others
Vs. Paras Finance Co. (Regd. Partnership firm), (2007) 10 SCC 82, Mumbai
International Airport Pvt. Ltd. Vs. Regency Convention Center and Hotels
Pvt. Ltd., (2010) 7 SCC 417 and V.N.Krishna Murthy and another Vs. Ravi
Kumar and others, (2020) 9 SCC 501.
[13] Shri R.S. Chhabra - learned Sr. Counsel on behalf of respondent No.6
adopted the submissions made by the amicus curiae Shri B.L. Pavecha, learned
Sr.Counsel and submitted that the writ appeal is not maintainable at the instance of
the interveners. He argued that word "intervene' is a prefix "vene" of "intervene"
means that if somebody want to intervene there has to be a pending matter (lis)
in which an intervener can make an application for intervention. In the present
case, neither the petitioner nor the respondent has filed appeal and, therefore, the
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intervener cannot seek file an appeal as appeal is a creator of statute and no right
has been conferred on a intervener to file an appeal either under the provisions of
Sec.96, 100 CPC or Sec.2(1) of Adhiniyam, 2005. He also referred the various
orders passed by this Court and by the Apex Court in the earlier writ petitions filed
by the petitioners or the present appellants. The Supreme Court has made an
observation that the interveners are encroachers and they have been permitted only
to be heard in support of the impugned order. The interveners cannot be held to be
person aggrieved. Hence, the appeal is not maintainable. It is further argued that
the appellants have no cause of action and the appeal has been filed on
psychological or imaginary injury. To strengthen his arguments he relied on the
judgment passed by the Supreme Court in the case of N. Swain Vs. B.K.
Mohapatra (1970) 3 SCC 321 and also referred the judgment of High Court of
Calcutta in the case of Odisha Slurry Pipeline Infrastructure Ltd. And Ors. Vs.
Rakesh Sharma & Ors MANU/WB/1852.
[14] In reply to the preliminary objections, counsel for appellants argued that in
order to appreciate the question that whether the writ appeal is maintainable at the
instance of an intervener or proposed intervener, we have to refer to the provisions
of Sections 96,100 CPC and also Sec.2(1) and (3) of Adhiniyam, 2005. It is
argued that word intervener has not been defined and the same also does not find
place either in the CPC or in the Adhiniyam, 2005. The dictionary meaning of an
intervener in Black Dictionary is that 'intervener' is one who voluntarily enters a
pending law suit because of a personal stake in it. The word intervention has also
been defined as under:
"Intervention. 1. The entry into a lawsuit by a third party who, despite
not being named a party to the action, has a personal stake in the
outcome. The intervenor sometimes joins the plaintiff in claiming what is
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sought, sometimes joins the defendant in resisting what is sought and
sometimes takes a position adverse to both the plaintiff and the
defendant. Cf. IMPLEADER; INTERPLEADER. 2. The legal procedure
by which such a third party is allowed to become a party to the litigation.
3. Int'l law. One nation's interference by force, or threat of force, in
another nation's internal affairs or in questions arising between other
nations. - Intervene."
In Legal Glossary - Intervention means "the action of intervening,
stepping in, or interfering in any affair, so as to affect its course or issue".
[15] She further argued that as per the provisions of Order 1 Rule 8A of the
CPC, the Court has been conferred with power to permit a person or body of
persons to present opinion or to take part in the proceedings. The aforesaid
provision provides that while trying a suit, the Court may, if satisfied that a person
or body of persons is interested in any question of law which is directly and
substantially in issue in the suit and that it is necessary in the public interest to
allow that person or body of persons to present his or its opinion on that question
of law, permit that person or body of persons to present such opinion and to take
such part in the proceedings of the suit as the Court may specify. Thus, the Court
has been conferred discretion in a case of interested person and in public interest
to allow him to participate in the proceedings. Counsel vehemently argued that the
provisions of Sections 96, 100 CPC and Section 2 of Adhiniyam, 2005 do not
specify that who can file an appeal and, therefore, the aforesaid provisions are wide
enough to include an appeal at the instance of an intervener or aggrieved person
and, therefore, a 'person aggrieved' can file an appeal with permission of the Court
by filing an application for leave to appeal.
[16] She argued that the earlier round of litigation either by the writ
petitioners or by the interveners were in respect of the proceedings u/S.250 of the
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MPLR Code and the implementation of Order u/S.250 of the Code. The same was
not relating to the cancellation of permission to sell by the society in favour of the
writ petitioners. She has drawn our attention to the order passed by the Supreme
Court in Special Leave Appeal No.8427/2024 wherein the Apex Court observed
that in pending writ petition (WP No.7617/2021) number of applications for
interventions are being filed by the third parties, therefore, High Court was
requested not to entertain such applications in future for the simple reason that the
applicants are already before Court and those who want to file fresh applications
are expected to support the order which is under challenge before the High Court.
The independent rights are not to be adjudicated in the pending proceedings. On
the strength of the said order, she argued that the Supreme Court has not closed the
doors of the intervener/appellants to intervene in the pending writ petition but
observed that they will be heard in support of the impugned order by which the
permission to sale in favour of the writ petitioners was cancelled. The appellants
filed application for impleading them as party but the learned Single Judge did not
decide the application filed by the appellants/interveners for impleading them as
party in the writ petition. No order is passed on their application and they were
also not heard before passing the order on merit. Counsel for appellants argued
that in paragraph 22 the learned Single Judge held that the sale by the society in
favour of the writ petitioner is perfectly justified. In a petition under Article 226 of
the Constitution , the learned Single Judge decided the case on merit adjudicating
the title of the land in question in favour of the writ petitioners. In paragraphs 22,
23, 27 and 31 of the impugned order, learned Single Judge adjudicated the case on
merit which would certainly affect the pending suits of title between the appellants
and the writ petitioners. The learned Single Judge held that there is no power of
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review with the revenue authorities and held that reasons are not mentioned in the
impugned order of cancellation of permission to sell the land in question and also
quashed the entire action taken by the respondents against the petitioner. If the
Single Judge was of the view that the impugned order was passed in violation of
the principles of natural justice, he ought to have granted liberty to the official
respondents to pass fresh orders after following the principles of natural justice.
In view of the aforesaid, the interveners are 'person aggrieved' and, therefore, the
appeal at their instance is maintainable and the leave be granted to file present
appeal. To bolster her submissions, she referred the judgments passed by the
Supreme Court in (1970) 3 SCC 573 Jatan Kumar Golcha Vs. Golcha
Properties, (1975)2 SCC 702 Bar Council of Maharashtra Vs. NV Dabholkar
& Ors., (1977) 1 SCC 155 Maharaj Singh Vs. State of U.P. & Ors., (2006) 5
SCC 62 Ravi Rao Gaikwad & Ors. Vs. Rajaji Nagar Youth Social Welfare,
(2007) 14 SCC 102 Ram Nandan Singh & Ors. Vs. AG Office Employees
Cooperative Societies, (2011) 4 MPLJ 547 Anil Rajawat Vs. Dashrath Gurjar
& Ors., (2020) 9 SCC 501 V.N. Krishna Murthy & another Vs. Ravikumar &
Ors., 2024 (4) MPLJ 697 Ambrish, (2025) SCC Online SC 183 H. Anjanappa
& Ors. Vs. A Prabhakar & Ors.
[17] Shri P.N. Saxena, appearing for the appellant in connected Writ
Appeal No.1432/2025 adopted the arguments of Ms.Mini Ravindran, Advocate.
[18] After hearing learned counsel for parties, we propose to decide the
issues/questions involved from (i) to (iii) first as they are interconnected with each
other relating to maintainability of writ appeal at the instance of an intervener or
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person aggrieved and what are the considerations for a court to grant leave to file
an appeal by an intervener or person aggrieved.
The word intervener is nowhere defined either in the provisions of The Code
of Civil Procedure, 1908 (for short CPC) or in the provisions of Adhiniyam, 2005.
We had a microscopic look to the High Court Rules and in the High Court Rules
at some places we could find word 'intervention' which are quoted as under:-
Chapter IX Rule 17(1)(m): for amendment in the petition or for taking
document on record in writ cases or for intervention or compromise;
Chapter X Rule 36: A person claiming a right to be heard in a civil or
writ case before a stay or an interim relief is granted by the Court may
at any time, file a Caveat.
Chapter X Rule 37:A person intending to lodge a caveat, shall serve a
notice or caveat by registered post with acknowledgement due or by
approved courier service, on the person by whom the
appeal/petition/application has been, or is expected to be made,
furnishing following particulars regarding the judgment/order etc. in
respect whereof the caveat is sought to be filed-
[1] the date of judgment/order etc;
[2] name of the Court, if any,
[3] the cause title and case number, if any,
[4] government/designation of the authority, and
[5] particulars of the order etc;
Accompanied by a receipt evidencing dispatch of caveat
The caveator may, thereafter present caveat furnishing aforesaid
particulars in Format No.10.
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Provided that:
[a] Where the caveator is represented by an advocate, his
vakalatnama shall accompany the caveat.
[b] If the caveat is filed in person, his full postal address, telephone
number, fax number with S.T.D. Code and e-mail address, if any, shall
be furnished.
[c] In case the caveator is an outsider, he shall give his or his
authorized agent's local address."
[19] Though the word 'intervention' has been used in the aforesaid Rules
but the aforesaid provision does not prescribe an appeal by an 'intervener' or
person aggrieved. The parties referred to the dictionary meaning of word
'intervener'. In the Black Dictionary 'intervener' is one who voluntarily enters a
pending law suit meaning thereby there has to be pending lis between the parties
and then one can seek 'intervention' in such pending lis. In Legal Glossary the
word intervention is described as the action of intervening, stepping in, or
interfering in any affair, so as to affect its course or issue. Thus, the dictionary
meaning of the word intervener is to mean that interfering in a lis pending between
two persons.
[20] The learned Amicus Curiae Shri B.L. Pavecha - Sr. Advocate, Shri
Piyush Mathur - Sr. Advocate and the Sr. Advocates and Advocates representing
the parties in the present case Shri Amit Agrawal, Sr. Advocate, Shri R.S.Chhabra
- Sr. Advocate, Ms. Mini Ravindran - Advocate for the appellants argued that
though the provisions of CPC do not apply to the writ petition but still the
provisions of CPC can be used for guidance in a proceeding of writ jurisdiction.
In this regard, a reference may be made to the judgment passed by the Apex Court
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in the case of Pooran Singh Vs. State of Punjab (1996) 2 SCC 205 wherein it
is held that though the provisions of CPC does not apply to the writ jurisdiction but
still the principles of the CPC can be used for guidance in a proceeding of writ
jurisdiction. Therefore, it is apposite to reproduce the provisions relating to right
of petitioner under CPC and Adhiniyam, 2005:-
Relevant Statutory Provisions:-
Section 96 CPC Section 100 CPC Section 2(1) of 2005,
Adhiniyam
1) Save where otherwise 100. Second appeal 2. Appeal to the Division
expressly provided in the (1) [Save as otherwise Bench of the High Court
body of this Code or by expressly provided in the from a Judgment or order
any other law for the time body of this Code or by of one Judge of the High
being in force, an appeal any other law for the time Court made in exercise of
shall lie from every being in force, an appeal original jurisdiction:
decree passed by any shall lie to the High Court
Court exercising original from every decree passed (1) An appeal shall lie
jurisdiction to the Court in appeal by any Court from a Judgment or order
authorized to hear appeals subordinate to the High passed by one Judge of
from the decisions of such Court, if the High Court is the High Court in exercise
Court. satisfied that the case of original jurisdiction
involves a substantial under Article 226 of the
(2) An appeal may lie question of law. Constitution of India, to a
from an original decree Division Bench
passed ex parte. (2) An appeal may lie Comprising of two judges
under this section from an of the same High Court:
(3) No appeal shall lie appellate decree passed ex
from a decree passed by parte
the Court with the consent
of parties. (3) In an appeal under this
section, the memorandum
(4) No appeal shall lie, of appeal shall precisely
except on a question of state the substantial
law, from a decree in any question of law involved
suit of the nature in the appeal.
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cognizable by Courts of
Small Causes, when the (4) Where the High Court
amount or value of the is satisfied that a
subject matter of the substantial question of
original suit does not law is involved in any
exceed [ten thousand case, it shall formulate
rupees.] that question.
(5)The appeal shall be
heard on the question so
formulated and the
respondent shall, at the
hearing of the appeal, be
allowed to argue that the
case does not involve
such question:
Provided that nothing in
this sub-section shall be
deemed to take away or
abridge the power of the
Court to hear, for reasons
to be recorded, the appeal
on any other substantial
question of law, not
formulated by it, if it is
satisfied that the case
involves such question.]
[21] Upon bare reading of the provisions of Sections 96, 100 CPC and
Sec.2 of Adhiniyam, 2005, it is axiomatic that the aforesaid provisions do not
specify that who can file an appeal therefore, it is apt to consider the provisions of
CPC. It is settled law that right of an appeal is a creation of statute and the same is
not inherent whether the proceedings are arising out of civil suit or writ petition.
In the case of Shiv Shakti (2003) 6 SCC 659 in para 17 the Apex Court held that
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right of appeal is neither a fundamental nor an inherent right of any citizen. It is
purely a creature of statute and is exercisable in accordance with law and within
the contours of statutory provision creating that right.
[22] It is clear from the table that Section 96 CPC is widely worded and
subject only to a statutory provision expressly barring or forbidding an appeal.
The scope of the Section 2(1) and 3 of the 2005 Adhiniyam under which the
present appeal has been filed is much narrower. It is available subject to any other
provision of law including the rules of procedure framed by the High Court.
Section 141 CPC clearly excludes the application of provisions of CPC to a writ
petition filed under Article 226 of the Constitution of India. This exclusion also
applies to the present appeal, which is only a continuation of the original
proceedings.
[23] There is no provision for intervention even in Civil Procedure Code,
which provides for only impleadment of a party under Order 1 Rule 10 CPC.
There is no provision for intervention in Article 226 of the Constitution of India or
in the Rules of the High Court. It is only a judicial invention exercisable wholly in
the discretion of the High Court and does not confer any right on any person. In
order to maintain an appeal under Section 2(1) of the Adhiniyam of 2005 it is the
duty of the appellant to indicate the statutory provision conferring a right of appeal
on him and not for the respondent to point out a negative provision barring an
appeal as required in the case of an appeal under Section 96 CPC. In absence of
any statutory provision conferring such a right on the appellant as intervener, the
present appeal is not maintainable in law. Reference may be made to the
judgments passed by the Apex Court in (1970)3 SCC 321 N Swain & another
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Vs. B.K. Mohapatra & Ors., (1999) 3 SCC 141 Saraswati Industrial
Syndicate Ltd. Vs. Commissioner of Income Tax Haryana, Rohtak and (2014)
SCC Online MP 2103 Jeevan Singh Chhatwal Vs. Bank of Baroda & Ors. The
same view has been taken by several other High Courts in the matter of
2009(1)MHLJ 786 Vilas Dadarao Chavan Vs. Kiran Ashok Patil
Dongaonkar & Ors., AIR 2013 Pat 74 Shiv Chandra Jha Vs. Harideo Jha and
2023 SCC Online Gau 2243 Gujarat State Fertilizers & Chemicals
Ltd. Vs. Century Plyboards (I) Ltd & Ors.
[24] Two provisions have been brought to out notice which confers power
to the Court to permit a person to be added as party in a pending suit. Order 1
Rule 10(2) CPC and Order 1 Rule 8-A of CPC. The relevant provisions of Order 1
Rule 10(2) and order 1 Rule 8-A are reproduced as under:-
Order 1 Rule 10(2): Court may strike out or add parties.---
The Court may at any stage of the proceedings, either upon or without
the application of either party, and on such terms as may appear to the
Court to be just, order that the name of any party improperly joined,
whether as plaintiff or defendant, be struck out, and that the name of
any person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate upon
and settle all the questions involved in the suit, be added.
Order 1 Rule 8-A: Power of Court to permit a person or body
of persons to present opinion or to take part in the proceedings.--While
trying a suit, the Court may, if satisfied that a person or body of person
is interested in any question of law which is directly and substantially
in issue in the suit and that it is necessary in the public interest to allow
that person or body of persons to present his or its opinion on that
question of law, permit that person or body of persons to present such
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opinion and to take such part in the proceedings of the suit as the Court
may specify."
[25] Order 1 Rule 10 confers power of the Court to permit a person to be
impleaded as party in a suit who is necessary party or who is proper party. In the
case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention
Center and Hotels Pvt. Ltd., (2010) 7 SCC 417, the Apex Court considered the
discretion of the Court to add parties under Order 1 Rule 10(2) held that the
general rule of dominus litus in regard to the impleadment of parties, the Court has
discretion to add a person as party who are necessary party or proper party. The
'necessary party' is a person who ought to have been joined as a party and under
whose absence no effective decree could be passed at all by the Court. If a
necessary party is not impleaded the suit itself is liable to be dismissed. A 'proper
party' is a party who though not a necessary party is a person whose persons would
enable the Court to completely, effectively and adequately adjudicate upon all the
matters in dispute in the suit though he need not to be a person in favour or against
whom the decree is to be made. If a person is not found to be a proper or
necessary party, the Court has no jurisdiction to implead him against the wishes of
the plaintiff. Similar view is expressed in the cases of Ramesh Hirachand
Kundanmal (1992) 2 SCC 524, Kasturi Vs. Iyyamperumal and others (2005) 6
SCC 733, Sumtibai and others Vs. Paras Finance Co. (Regd. Partnership
firm), (2007) 10 SCC 82, and V.N.Krishna Murthy and another Vs. Ravi
Kumar and others (2020) 9 SCC 501.
[26] In the case of V.N.Krishna Murthy & another (supra), the Apex
Court was considering the maintainability of appeal by a person aggrieved held
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that Section 96 and 100 of CPC provided for preferring an appeal from any
original decree or from decree in appeal respectively. The aforesaid provisions do
not enumerate the categories of persons who can file an appeal. However, it is
settled legal proposition that a stranger cannot be permitted to file an appeal in any
proceedings unless he satisfy the Court that he falls within the category of
aggrieved person. It is only where a judgment and decree prejudicially affect a
person who is not party to the proceeding, he can prefer an appeal with the leave of
the appellate Court.
[27] The other provision Order 1 Rule 8-A CPC empowers a court to allow
a person or body of persons to present their opinion on a question of law and to
take part in the proceedings if satisfied that such person or body is interested in a
question of law directly and substantially in issue and it is necessary in the public
interest. In the case of Ramaiah v. Shivalingaiah, (2016) SCC OnLine Kar
1906 on 16 July, 2016 WP No.32026/2016 the Court held that for intervention in
a suit under Order 1 Rule 8A, "public interest" has merit over a direct interest in
the question of law arising in the suit. The court dismissed an application under
Order 1 Rule 8A read with Section 151 CPC, emphasizing the scope of the rule.
This case underscores the importance of the "public interest" criterion. In
Elsevier Ltd. And Ors vs Alexandra Elbakyan And Ors, 2022 SCC OnLine
Del 384 on 3 November, 2022, the Delhi High Court dealt with an application
under Order 1 Rule 8A CPC by three researchers seeking to intervene. The court,
while acknowledging the purpose of Rule 8A, ultimately did not permit the
intervention, stating that if such intervention were permitted, it would be a "carte
blanche" for persons claiming to be beneficiaries of the material to intervene in
litigation, which is in the nature of copyright infringement. This case clarifies that
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Rule 8A is not a tool for anyone claiming a general interest to interfere in private
disputes, and the court will carefully assess the nature of the "interest" and "public
interest". In the case of Arun Kumar vs Suhag Chandra on 29 March, 2022 WP
No.5704/2017 the Court held that the State had a direct and substantial interest,
thus O.1 R.8A empowers the court to allow such intervention, even suo motu. It
remanded the matter for reconsideration.
[28] Now we proceed to examine the various judgments on the issue
regarding maintainability of an appeal by an intervener or person aggrieved. In the
case of Re Securities Insurance Co., [1894] 2 Ch. 410] the Courts of Chancery
considered the issue regarding maintainability of an appeal by a person who is not
a party to the lis held that it is well settled that while a person who was party could
appear without any leave but a person who without being a party was either have
laid down the rule that a person who is not a party to a decree or order may with
the leave of the Court, prefer an appeal from such decree or order if he is either
bound by the order or is aggrieved by it or is prejudicially affected by it.
[29] The law has been succinctly explained as regards the grant of leave to
appeal in In re Markham Markham v. Markham, [1881] 16 Ch.D. 1; In re Padstow
Total Loss and Collision Assurance Association, [1882] 20 Ch.D. 137 at p.
142; Attorney General v. Marquis of Ailesbury, [1885] 16 Q.B.D. 408 at p. 412,
and In re Ex Tsar of Bulgaria, [1921] 1 Ch.D. 107 at p. 110. The position is thus
stated in the Annual Practice for 1951 at page 1244:
"Persons not parties on the record may, by leave obtained on an 'ex
parte' application to the Court of appeal, appeal from a judgment or
order affecting their interests, as under the old practice."
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[30] A five-Judge Bench of the Privy Council in Nagendra Nath
Dey v. Suresh Chandra Dey, AIR 1932 PC 165, speaking through Sir Dinshaw
Mulla observed that there is no definition of appeal in the CPC, but there is no
doubt that any application by a party to an appellate Court, asking it to set aside or
revise a decision of a subordinate Court, is an appeal within the ordinary
acceptation of the term, and that it is no less an appeal because it is irregular or
incompetent. A party to a suit adversely affected by a decree or any of his
representatives-in-interest may file an appeal. But a person who is not a party to a
decree or order may, with the leave of the court, prefer an appeal from such decree
or order if he is either bound by a decree or order or is aggrieved by it or is
otherwise prejudicially affected by it.
[31] In Indian Bank Limited, Madras v. Seth Bansiram Jashamal Firm
through its Managing Partner, AIR 1934 Mad 360, and accepted it as authority
for the position that no person who is not a party to a suit or proceeding has a right
of appeal. But if he was aggrieved by a decision of the court, the remedy open to
him was to approach the appellate court and ask for leave to appeal which the
appellate court would grant in proper cases. The similar view was taken in the case
of Province of Bombay v. W.I. Automobile Association, reported in AIR 1949
Bom 141, Chagla C.J. and Bhagwati J. held that a person not a party to a suit may
prefer an appeal if he is affected by the order of the Trial Court provided he
obtained leave from the Court of appeal. The learned Chief Justice observed that
the Civil Procedure Code does not in terms lay down as to who can be a party to an
appeal. But it is clear and this fact arises from the very basis of appeals, that only a
party against whom a decision is given has a right to prefer an appeal. Even in
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England the position is the same. But it is recognised that a person who is not a
party to the suit may prefer an appeal if he is affected by the order of the trial
Court, provided he obtains leave from the Court of appeal; therefore whereas in the
case of a party to a suit he has a right of appeal, in the case of a person not a party
to the suit who is affected by the order he has no right but the court of appeal may
in its discretion allow him to prefer an appeal."
[32] In the case of Srimathi K. Ponnalagu Ammani v. The State of
Madras represented by the Secretary to the Revenue Department, Madras,
reported in AIR 1953 Mad 485 the High Court laid down the test to find out when
it would be proper to grant leave to appeal to a person not a party to a proceeding
against the decree or judgment passed in such proceedings and held that now, what
is the test to find out when it would be proper to grant leave to appeal to a person
not a party to a proceeding against the decree or judgment in such proceedings?.
We think it would be improper to grant leave to appeal to every person who may in
some remote or indirect way be prejudicially affected by a decree or judgment. We
think that ordinarily leave to appeal should be granted to persons who, though not
parties to the proceedings, would be bound by the decree or judgment in that
proceeding and who would be precluded from attacking its correctness in other
proceedings.
[33] In the case of N. Swain & another (supra) the Apex Court has held
that an intervener is not entitled to appeal against the judgment and order of the
High Court. No certificate should have been granted by the High Court under
Article 134(1)(c). The intervener however could apply to the Supreme Court for
intervention in the appeal.
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[34] In Adi Pherozshah Gandhi v. H.M. Seervai, (1970) 2 SCC
484 : AIR 1971 SC 385, a Constitution Bench of this Court in paragraph 46 held
that generally speaking, a person can be said to be aggrieved by an order which is
to his detriment, pecuniary or otherwise or causes him some prejudice in some
form or other. A person who is not a party to a litigation has no right to appeal
merely because the judgment or order contains some adverse remarks against him.
But it has been held in a number of cases that a person who is not a party to suit
may prefer an appeal with the leave of the appellate court and such leave would not
be refused where the judgment would be binding on him under Explanation 6 to
section 11 of the Code of Civil Procedure.
[35] In the case of Smt. Jatan Kumar Golcha v. Golcha Properties
Private Limited (supra) the Apex Court has held that it is well settled that a
person who is not a party to the suit may prefer an appeal with the leave of the
Appellate Court and such leave should be granted if he would be prejudicially
affected by the Judgment.
[36] In the case of State of Punjab v. Amar Singh (supra), while dealing
with the maintainability of appeal by a person who is not party to a suit, has
observed that Firstly, there is a catena of authorities which, following the dictum of
Lindley, L.J., in re Securities Insurance Co., [1894] 2 Ch. 410] have laid down
the rule that a person who is not a party to a decree or order may with the leave of
the Court, prefer an appeal from such decree or order if he is either bound by the
order or is aggrieved by it or is prejudicially affected by it.
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[37] In the case of Baldev Singh v. Surinder Mohan Sharma, reported
in (2003) 1 SCC 34, the Apex Court held that an appeal under Section 96 of
the CPC would be maintainable only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree. While dealing with the concept of
person aggrieved, it was observed in paragraph 15 that a person aggrieved to file
an appeal must be one whose right is affected by reason of the judgment and
decree sought to be impugned. In the aforesaid judgment, a compromise decree
was passed in a suit between husband and wife to the effect that their marriage
stood dissolved from an earlier date by virtue of a memorandum of customary
dissolution of marriage. The said decree was sought to be challenged by a person
who was having a property dispute with the husband and who had filed complaints
against the husband to the employer of the husband, in contravention of the
Employment Rules having contracted a second marriage. This Court, while
holding that the person who was seeking to challenge the decree had no locus
standi to do so, held: (a) that there is no dispute that as against the decree, an
appeal would be maintainable in terms of Section 96 of the CPC; such an appeal,
however would be maintainable only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree; (b) that the dispute between the said
person and the husband was in relation to a property and the said person, save for
making complaints to the employer of the husband, had nothing to do with the
marital status of the husband; (c) locus of a person to prefer an appeal in a matter
of this nature is vital; (d) the court cannot enlarge the scope of locus, where the
parties are fighting litigations; (e) the pleas of the said person did not disclose as to
how and in what manner he would be prejudiced if the compromise decree was
allowed to stand; (f) that the challenge by the said person was not bona fide; and,
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(g) even if the compromise decree was a judgment in rem, the said person could
not have challenged the same as he was not aggrieved therefrom.
[38] This Court in 2011(4)MPLJ 547 Anil Rajawat Vs. Dashrath Gurjar &
Ors. has held in paragraph 18 that Section 2 of the Madhya Pradesh Uchcha
Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, prescribes provision
of appeal to the Division Bench. The aforesaid provision is as under :--
"2. Appeal to the Division Bench of the High Court from a
Judgment or order of one Judge of the High Court made in exercise
of original jurisdiction. -- (1) An appeal shall lie from a judgment
or order passed by one Judge of the High Court in exercise of
original jurisdiction under Article 226 of the Constitution of India
in a Division Bench Comprising of two judges of the same High
Court :
Provided that no such appeal shall lie against an interlocutory order
or against an order passed in exercise of supervisory jurisdiction
under Article 227 of the Constitution of India."
In the aforesaid section there is no mention to the effect that who can file
an appeal. It has only been mentioned that an appeal shall lie from the order or
judgment passed by the Single Bench to the Division Bench.
[39] In the case of A. Subash Babu v. State of A.P., reported in (2011) 7
SCC 616, the Apex Court held that the expression 'aggrieved person' denotes an
elastic and an elusive concept. It cannot be confined that the bounds of a rigid,
exact and comprehensive definition. Its scope and meaning depends on diverse,
variable factors such as the content and intent of the statute of which contravention
is alleged, the specific circumstances of the case, the nature and extent of the
complainant's interest and the nature and extent of the prejudice or injuries suffered
by him. The appellants have thus, failed to demonstrate that they are prejudicially
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or adversely affected by the decree in question or any of their legal rights stand
jeopardised, so as to bring them within the ambit of the expression "person
aggrieved" entitling them to maintain appeal against the decree.
[40] The expression 'person aggrieved' does not include a person who
suffers from a psychological or an imaginary injury; a person aggrieved must,
therefore, necessarily be one, whose right or interest has been adversely affected or
jeopardized (see : Shanti Kumar R. Canji v. Home Insurance Co. of New
York, (1974) 2 SCC 387 and State of Rajasthan v. Union of India, (1977) 3
SCC 592) the expression 'person aggrieved' does not include a person who suffers
from psychological or imaginary injury. A person aggrieved must, therefore,
necessarily be one whose right or interest has been adversely affected or
jeopardized.
[41] The Division Bench of this Court in WA No.1627/2018 Ambrish &
another Vs. The State of M.P. & another and connected appeal has held in para
11 that since appellant in W.A. No. 255/2022 are also adversely affected by the
order dated 08.03.2018, and therefore, appellants be also allowed to lay an
independent challenge to the final order by way of accompanying the W.A. No.
1627/2018. In support of his contention, learned counsel for the appellant has
placed reliance on the judgment passed by co-ordinate Bench of this Court in the
case of Rajawat Vs. Dashrath Singh Gujjar reported in (2011) 4 MPLJ 547
which was affirmed by the Apex Court in the case of Smt. Jatan Kumar Golcha
Vs. Golcha Properties P. Ltd. reported in (1970) 3 SCC 573, wherein it was
held that an aggrieved person can prefer a writ appeal even though he may not be
the main petitioner in the writ petition.
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[42] The Apex Court in 2025 SCC OnLine SC 183 H Anjanappa & Ors.
Vs. A. Prabhakar & Ors. after considering the various judgments held that leave
can be granted to a person aggrieved if his rights are affected prejudicially. In
paragraph 25 the Apex Court held that Sections 96 and 100 respectively of
the CPC provide for preferring an appeal from any original decree or from decree
in appeal respectively. The aforesaid provisions do not enumerate the categories of
persons who can file an appeal. However, it is a settled legal proposition that a
stranger cannot be permitted to file an appeal in any proceedings unless he satisfies
the court that he falls within the category of aggrieved persons. It is only where a
judgment and decree prejudicially affects a person who is not a party to the
proceedings, he can prefer an appeal with the leave of the appellate court. [see : Sri
V.N. Krishna Murthy v. Sri Ravikumar (Civil Appeal Nos. 2701-2704 of 2020,
decided on 21st August 2020)].
[43] In the light of the aforesaid enunciation of law, the questions/issues
(i), (ii) and (iii) are answered as that the appeal or writ appeal is not maintainable
at the instance of an intervener or person aggrieved without an application for
leave. An intervener or person aggrieved can file an appeal or writ appeal with an
application for leave to appeal. The appellate court can grant leave to file an
appeal if the appellant falls within the category of a 'aggrieved person' and who is
prejudicially affected by the said judgment and order or if the denial of an appeal
would lead to miscarriage of justice to the intervener/person aggrieved where the
judgment impugned deals with public law or constitutional law or where the denial
of appeal would defeat the principles of natural justice and would cause irreparable
loss to an intervener. Thus, the issues/questions are answered accordingly.
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[44] In the light of the aforesaid answer to the questions/issues, the facts of
the present case are examined, the respondent No.6 has purchased the land in
question for allotment of the plot to its members for construction of residential
houses. That the appellants are claiming the title over the same property which has
been claimed by the writ petitioners in the present petitions. Their civil suit is
pending. The various writ petitions filed by the writ petitioners and the interveners
which travelled from High Court to the Supreme Court were in respect of the
proceedings u/S.250 of the MPLR Code, the implementation of the order u/S.250
of the Code. In Special Leave to Appeal 8427/2024 the Apex Court held that the
interveners may file applications in the pending case before the High Court in
support of the impugned order i.e. cancelling the permission of sell by the society
in favour of the writ petitioners. The petitioners filed application for impleading
them as parties. The said applications were not decided by the Single Judge and no
orders have been passed on these applications. Without hearing them on merit, the
writ petition was allowed and in paragraph 22 the Single Judge has held that the
sale by the society in favour of the writ petitioner is perfectly justified. In
paragraphs 23, 27 and 31 the learned Single Judge further held that the order
passed by the revenue authority was without jurisdiction as the authority has no
power to review and reasons were not mentioned in the impugned order. The
impugned order of the authority was quashed by the Single Judge on the ground
that the order was passed in violation of the principles of natural justice.
[45] In view of the aforesaid, we held that the interveners falls within the
category of 'person aggrieved' and since their rights are prejudicially affected by
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the impugned order, their application for leave to appeal is allowed. Leave is
granted to the intervener to file present appeal.
Issue notice. No PF is required as parties are being represented. The
respondents are granted time to file reply/submissions on merit if any before the
next date of hearing.
Matter be listed for hearing on admission and for consideration of interim
relief on 7.8.2025.
[46] At the end, we express our sincere gratitude and deep appreciation to
Shri B.L. Pavecha and Shri Piyush Mathur, Senior Advocates for graciously
rendering assistance as Amicus Curiae for their valuable insights, rigorous legal
analysis for deciding the issue.
(VIJAY KUMAR SHUKLA) (PREM NARAYAN SINGH)
JUDGE JUDGE
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