The respondents 5 and 6 Suresh Chandra and Vinay Kumar sons of Ganga Charan are the plaintiffs in Original Suit No. 67 of 1967 instituted under Section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. Abdul Hamid, defendant in the said suit, was the brother of petitioner and the respondents 7, 8 (now deceased) and 9. A joint relief was claimed against the petitioner and Abdul Hamid who contested the matter by filing their written statements. Abdul Hamid died on 08.07.1976. An application for impleadment came to be filed for substituting the legal heirs of late Abdul Hamid. The application appears to have been delayed by almost 45 days. This application was rejected and an order came to be passed by the trial court abating the suit on 18.10.1978.
The plaintiffs preferred an appeal before the learned Additional Commissioner, which was dismissed on 15.12.1987 and aggrieved by the same, a second appeal was filed before the Board of Revenue. The second appeal proceeded without the petitioner Abdul Rahim having been impleaded therein whereafter the respondent-plaintiffs appear to have moved an application under Order XLI Rule 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.') read with Section 5 of the Limitation Act, 1963 praying that due to a bona fide mistake, the petitioner could not be impleaded in the second appeal, even though, he was a party in the suit. An affidavit was filed in support of the said application for condoning the delay, if any, and the application was allowed on 24th of May, 1995 by the learned Member, Board of Revenue accepting the mistake of the counsel and allowing the impleadment application in the interest of justice after condoning the delay. A cost of Rs. 100/- was also imposed. After having allowed the said impleadment application, the Board of Revenue further went on to allow the second appeal on the ground that there was a very nominal delay of 45 days in moving of the said application before the trial court and, therefore, the suit could not have abated. Accordingly, the order of abatement and the judgment of the first appellate court were set aside with a direction to the trial court to proceed and decide the suit on merits.
Sri A.K. Tiwari, learned counsel for the petitioners submits that the entire proceedings are without jurisdiction, inasmuch as, the second appeal was not maintainable before the Board of Revenue, inasmuch as, the order of abatement was a simple order under Order XXII Rule 4 (3) of the C.P.C. Once the suit had abated no appeal lay against such an order and as such even the second appeal was not maintainable. The second contention of Sri Tiwari is that the petitioner Abdul Rahim alias Lalla was never put to any notice about the application for impleadment moved under Order XLI Rule 20 of the C.P.C. and the petitioner having not been served with any notice, the order is in violation of principles of natural justice. Thirdly, it is submitted that the petitioner had never engaged Sri Ratan Singh as a counsel in the second appeal and he was a counsel only before the first appellate authority as such his engagement came to an end and Sri Ratan Singh never represented the petitioner in the second appeal.
As a nature of corollary to this argument, it is urged that Sri Ratan Singh was not a counsel of the petitioner in the original suit, therefore, there is no occasion to treat him as a counsel on behalf of the petitioner Abdul Rahim in the second appeal. The provisions of Order III Rule 4 are not attracted. It is urged that Sri Ratan Singh was a counsel only for the purpose of second appeal and not otherwise. The fourth contention of Sri Tiwari is that the application moved under Order XLI Rule 20 of the C.P.C. by the respondents 5 and 6 did not disclose as to what interest of the petitioner Abdul Rahim survived so as to allow his impleadment and in the absence of any such averment contained in the application or in the affidavit, the same could have been rejected. Not only this, the learned Member, Board of Revenue while passing the order on 24.05.1995 did not record any reason in terms of Order XLI Rule 20 of the C.P.C. so as to satisfy itself about the maintainability of the application. It is also urged that the said application was moved almost after seven years of the pendency of the second appeal and is barred by limitation. The delay has been cursorily condoned, vide order dated 24.05.1995, without indicating any sufficient cause to condone the delay and hence the order dated 24th of May, 1995 on all these scores was an invalid order. It has been pointed out with the help of the averments contained in the reply to the supplementary counter affidavit that costs were not accepted on behalf of the petitioner as Ratan Singh was not his counsel. He has relied on the decisions in the cases of Abrar Husain and others Vs. Ahmad Raza and others reported in AIR 1937 Allahabad 82 (at page 88), Ammukutty Amma and another Vs. Madhavi Amma reported in AIR 1971 Kerala 90 (paragraph 9), Rajendra Nath Chatterjee and others Vs. Moheshata Debi and others reported in AIR 1926 Calcutta 533 (at page 535), Raman Lal Vs. Shanti Lal and others reported in AIR 1961 Allahabad 178 and Ch. Surat Singh (dead) and others Vs. Manohar Lal and others reported in AIR 1971 SC 240.
On the issue of continuance of a pleader relied has been placed in the case of Padam Chand and others Vs. Ram Lal and another reported in AIR 1953 H.P. 11 (paragraph 6). On the issue of maintainability of the second appeal reliance has been placed in the case of Ram Sahai Vs. Bankey Lal reported in 1979 RD 258 and in the case of Mangluram Dewangan Vs. Surendra Singh and others reported in 2011 (2) ARC 750.
In sum and substance, Sri Tiwari concluded his argument by submitting that the proceedings of impleadment and the consequential final order passed by the Board of Revenue are in violation of principles of natural justice and ex-parte to the petitioner.
Sri Pradeep Kumar, learned counsel for the plaintiff-respondents 5 and 6 submits that the order of abatement is a final order terminating the suit and, therefore, an appeal was maintainable and inviting the attention of the Court to the provisions of Order XXII Rule 9 of the C.P.C., he contends that the matter having abated no second suit was maintainable which implies that the proceedings were final and, therefore, an appeal would lie against such an order. So far as, the maintainability of the second appeal is concerned, he contends that the first appeal filed against the order of the trial court was dismissed affirming the order of abatement and, therefore, a second appeal was maintainable. He relies on the decision of the Apex Court in the case of Madan Naik (dead by LRs) and others Vs. Mst. Hansubala Devi and others reported in AIR 1983 SC 676 (paragraph 9).
On the issue relating to the violation of principles of natural justice Sri Pradeep Kumar contends that Sri Ratan Singh had appeared for the petitioner Abdul Rahim alias Lalla in the first appeal and also as a counsel for the other brothers of the petitioner. Sri Ratan Singh received a cost of Rs. 100/- on the order dated 24th of May, 1995 and he continued to represent the petitioner as well. It is submitted that if he was a counsel in the first appeal then he continued to be a counsel during the second appeal as well even if no fresh Vakalatnama had been filed due to inadvertence.
The contention of Sri Pradeep Kumar is that technicalities should not come in the way of this Court and substantial justice having been done, the matter will now be tried. The suit is pending for the past more than 24 years. He, therefore, contends that this Court need not interfere with the impugned orders and the petition be dismissed.
Having heard learned counsel for the parties, the first issue that deserves to be taken note of is the maintainability of the appeal against the order of abatement passed under Order XXII Rule 4 of the C.P.C. The Civil Procedure Code provides for setting aside of an order of abatement on an application to be moved under the aforesaid provisions of Order XXII Rule 4. If, an application for setting aside the abatement is rejected then a first appeal from order is provided under Order XLIII Rule 1 (k) of the C.P.C. The contention of the learned counsel for the respondents is that under Rule 9 of Order XXII an order of abatement prohibits the filing of a subsequent suit and, therefore, the same being final, a first appeal would be maintainable under Section 96 of the C.P.C. Needless to say that an appeal is a creature of statute. An appeal under Section 96 of the C.P.C. lies against a final judgment or a decree delivered in a suit. The order of abatement passed under Order XXII Rule 4 is neither a judgment nor a decree and it puts the proceedings at naught without any adjudication. The proceedings do terminate but do not end in a judgment or a decree so as to bring it within the fold of an appeal under Section 96 of the C.P.C. The legislature has provided a remedy of setting aside an abatement and if such remedy is not availed of then an appeal would not lie against such an order.
In the instant case, the petitioner had appeared in the first appeal and the same came to be dismissed. The respondents did not move any application to set aside the abatement. They had that remedy available which they did not avail of, as a result whereof, a further remedy by way of a first appeal from order, that could have been adopted also was abandoned by the respondents. The point is that if an appeal was not maintainable, then the remedy could have been by way of a revision. The petitioners did not file any revision and instead file a second appeal after the first appellate order.
As a natural corollary if the first appeal was not maintainable, a second appeal would also not lie under Section 100 of the C.P.C.
The second submission raised on behalf of the petitioner is that the second appeal proceeded without any notice to the petitioner as he was not a party. Not only this, Ratan Singh, Advocate had never been engaged in the second appeal and, therefore, he never represented the petitioner. There is no evidence to indicate that Ratan Singh, Advocate had ever been engaged by the petitioner or he had received the costs on his behalf in the second appeal. In such a situation, the provisions of Order III Rule 4 of the C.P.C. are not attracted, inasmuch as, if a counsel is engaged during a trial, then he continues to be a counsel in accordance with the provisions of Rule 4 Order III of the C.P.C. subsequently. The continuance of Ratan Singh as a counsel for the petitioner, therefore, was not established as he was never engaged at the stage of trial.
The third issue relating to the provisions of Order XLI Rule 20 of the C.P.C. also needs to be addressed but the learned Board of Revenue, while allowing the application on 24th May, 1995, did not advert to this aspect of the matter, that the petitioner was interested in the result of the appeal or not, which is the first requirement of an application to be made under Rule 20 Order XLI. The application for impleadment which was filed on behalf of the respondents was heavily time barred, inasmuch as, it had been filed after seven years and it did not contain any recital as to whether the petitioner was interested in the result of the appeal or not. Without having recorded any such finding either on the appeal or on the fulfilment of the requirement of Order XLI Rule 20, the application was cursorily allowed on 24th May, 1995. In the opinion of the Court, this does not conform to the provisions of Rule 20 Order XLI and to the provisions of Section 5 of the Limitation Act.
In such a situation, the contention raised on behalf of the petitioner has to be accepted that the Board of Revenue in the second appeal proceeded to pass an order only on account of the short delay in the application moved for setting aside the abatement which was of 45 days. This could have been done only after findings were recorded in relation to the objections which have been dealt with by this Court and narrated hereinabove. The Board of Revenue, therefore, without adverting to these aspects has proceeded to allow the second appeal and, therefore, the order is unsustainable and the writ petition deserves to be allowed.
Accordingly, the impugned order dated 2.11.1995 and the order passed on the impleadment application dated 24th May, 1995 are set aside. The Board of Revenue shall first address itself to the issue of limitation, on the impleadment application and requirement of Order XLI Rule 20 and thereafter proceed to consider the other infirmities as pointed out hereinabove in accordance with law and pass appropriate orders as expeditiously as possible preferably within a period of three months from the date of presentation of a certified copy of this order before it.
With the aforesaid observations, the writ petition is allowed.
Dt. 16.09.2011 Akv