Court No. - 37
Case :- SECOND APPEAL No. - 173 of 2018
Appellant :- Smt. Afsari Khatoon And 3 Others Respondent :- Sunita Singhal And 4 Others Counsel for Appellant :- Sufia Saba,Abdul Majeed Counsel for Respondent :- Kshitij Shailendra
Hon'ble Ved Prakash Vaish,J.
1. Ms. Sufia Saba, learned Counsel for the appellants and Mr. Kshitij Shailendra, learned Counsel for the respondents are present.
2. This is second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') filed by Smt. Afsari Khatoon, Mushir Alam, Tausif Alam and Adnan A Qayyum against the impugned judgment dated 26.10.2017 and decree dated 9.11.2017 passed by learned Additional District Judge, Moradabad in Civil Appeal No.32 of 2015 (Smt. Afsari Khatoon and others Vs. Sunita Singhal and others) whereby the appeal was dismissed.
3. The brief facts giving rise to the present appeal are that Smt. Ram Kali, mother of respondent no.1 (plaintiff in the suit) filed a suit for cancellation of sale deed dated 15th March 1990 executed by the plaintiff in favour of the respondent nos.2 to 5, bearing Original Suit No.348 of 1991. The respondent nos.2 to 5/defendants filed written statement and thereafter, failed to appear and they were proceeded against ex-parte. The respondent no.1/plaintiff examined herself as P.W.-1, Sri A.S. Ali as P.W.-2, Sri Chandan as P.W.- 3 and Sri Neeraj Agarwal as P.W.-4. After considering the pleadings of the parties and evidence adduced by respondent no.1, the suit of the respondent no.1/plaintiff was decreed by learned Civil Judge (Jr. D), Moradabad vide judgment and decree dated 13.3.2015.
4. Against the said judgment and decree, the respondent nos.2 to 5/defendants moved an application under Order IX Rule 13 read with Section 151 C.P.C along with an application under Section 5 of the Limitation Act for setting aside the judgment and decree dated 13th March 2015. The respondent nos.2 to 5/defendants also filed civil appeal under Section 96 of C.P.C along with an application under Section 5 of the Limitation Act. The said application under Order IX rule 13 read with Section 151 C.P.C was dismissed on 14.9.2016. The application under Section 5 of the Limitation Act which was filed along with the civil appeal was dismissed on 25th May 2017.
5. The appellants herein filed Civil Appeal No.32 of 2015 against the judgment and decree dated 13.3.2015 passed by learned Civil Judge (Jr. D), Moradabad in Original Suit No.348 of 1991 and the said appeal was dismissed by learned Additional District Judge, Moradabad vide judgment dated 26.10.2017 and decree dated 9.11.2017.
6. Being aggrieved by the said judgment and decree, the appellants have filed the present appeal.
7. The respondent no.1/plaintiff namely, Sunita Singhal moved an application for Caveat under Section 148-A of the C.P.C.
8. The appeal was taken up on 12.2.2018 and the same was adjourned at the request of Counsel for the appellants. Thereafter, the appeal was adjourned on various dates. An objection was raised by Counsel for the respondent no.1 on the maintainability of the appeal. At the request of appellants, the appeal was adjourned to 15.5.2018. Again on 15.5.2018, the respondents raised an objection regarding maintainability of the appeal by submitting that the appellants moved an application for impleadment which was rejected on 8.4.2009 and the said order was not challenged by the appellants and the same has become final. However, on the request of appellants, the appeal was adjourned. Again on 22.5.2018 and 28.5.2018, the appeal was adjourned on the request on behalf of the appellants.
9. A preliminary objection has been raised by learned Counsel for the respondent no.1/plaintiff that the appeal filed by the appellants was not maintainable as they were not parties in the suit. Learned Counsel for the respondent no.1 urges that as per allegations of the appellants, they had purchased part of the property from respondent no.2/defendant vide sale deed dated 16th March 2001. On the basis of said sale deed, the appellants moved an application for impleadment under Order XXII Rule 10 C.P.C which was dismissed by learned Civil Judge on 8.4.2009. The appellants did not challenge the said order and the said order has become final.
10. Learned Counsel for the respondent no.1 further submits that the defendants in the suit who are respondent nos.2 to 5 herein moved an application under Order IX Rule 13 C.P.C on 8th May 2015 and simultaneously on 8th May 2015 filed a civil appeal under Section 96 of C.P.C along with an application under Section 5 of the Limitation Act against the judgment and decree dated 13.3.2015 passed by learned Civil Judge. The application under Order IX Rule 13 was dismissed on 14th September 2016. He also pointed out that the application under Section 5 of the Limitation Act which was filed along with the civil appeal was dismissed on 25th May 2017 and the appeal was also dismissed. Thereafter, the respondent nos. 2 to 5/defendants did not challenge the said orders dated 14.9.2016 and 25.5.2017 and the judgment and decree dated 13.3.2015 became final.
11. Learned Counsel for the respondent no.1 also submits that after about six years of dismissal of their application for impleadment, the appellants filed Civil Appeal No.32 of 2015 challenging the judgment and decree dated 13.3.2015 which was dismissed vide judgment dated 26.10.2017. He also submits that a similar objection regarding maintainability of the appeal was raised by respondent no.1 before the Ist Appellate Court and the same was decided in favour of the appellants.
12. Learned Counsel for the appellants submits that the first appeal was filed by the appellants and the same was held to be maintainable by the First Appellate Court. He also submits that the appellants are aggrieved by the judgment and decree dated 13.3.2015 and, therefore, the appellants can file the present appeal. In support of her submission, the learned Counsel for the appellants has relied upon the judgment in the case of 'Smt Jatan Kumar Golcha Vs. M/S. Golcha Properties (P) Ltd', 1970(3) S.C.C. 573.
13. I have given my thoughtful consideration to the submissions made by learned Counsel for both the parties and I have also gone through the material available on record.
14. Undisputedly, the appellants were not parties in the suit. It is also not disputed that the respondent nos.2 to 5/defendants in the suit herein moved an application under Order IX Rule 13 C.P.C and they had also filed appeal under Section 96 of C.P.C along with an application under Section 5 of the Limitation Act. The application under Order IX Rule 13 C.P.C was dismissed on 14th September 2016 and the application under Section 5 of the Limitation Act which was filed along with the appeal was dismissed on 25th May 2017. It is also not disputed that the said orders have not been challenged by respondent nos.2 to 5/defendants.
15. It is settled principal of law that a person who is not a party to the suit or that who is a stranger to the suit, is not entitled to file an appeal. The appellants filed civil appeal under Section 96 of C.P.C and Ist Appellate Court referred to the judgment in the case of 'Triveni Engineering and Industries Ltd., Deoband, Saharanpur Vs. State of U.P. And others', 2008(10) Allahabad Daily Judgments 153 and observed that the appeal filed by the appellants was maintainable. I have gone through the judgment in 'Triveni Engineering and Industries Limitated's' case (supra), the said judgment is of no use to the appellants.
16. It is an appeal presented by a person having no lis because an appeal can be presented not by any person like a plaintiff of a suit, but can be presented only by a party in the suit, if he is aggrieved by the judgment or by a person, who is not a party but who is aggrieved by the judgment, if he seeks and obtains the leave of the Court to prefer an appeal against the judgment.
17. The Hon'ble Supreme Court in the case of 'Smt.
Ganga Bai vs. Vijay Kumar and others', AIR 1974 Supreme Court 1126 observed as under :-
“15. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”
The observation of the Hon'ble Supreme Court clearly explain the distinction betwee a right to appeal, which is a creature of statue, as contrasted with a right to file a suit, which also is limited to a person, refer to under Section 9 of the Code of Civil Procedure provided he has got a cause of action and a remedy to be sought.
18. A similar question was considered by Division Bench of Madras High Court in the case of 'Indian Bank Ltd., Madras Vs. Seth Bansiram Jashamal (Firm) and another', AIR 1934 Madras 360. In the said judgment, it was held that no person, who is not a party to the suit, can prefer an appeal under the Civil Procedure Code.
19. Similarly in the case of 'Shah Zahirul Haque Vs. Syed Rashid Ahmad and others', AIR 1935 Patna 261 (DB), it was held that a person who was not a party to the action cannot file appeal. Similarly in another case 'Indradeo Narain Singh Vs. Gouri Shankar', AIR 1918 Patna 364, it was held that the appellant was not a party to suit and, therefore he has no right of appeal.
20. The judgment in the case of 'Smt. Jatan Kumar Golcha's case' (supra) relied upon by learned Counsel for the appellants does not help the appellants. In the said case, it was held that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leaved should be granted if he could not be prejudicialy affected by the judgment. In the present case, no application seeking leave of the Court to file an appeal against the judgment has been filed and, therefore, there is no question of granting leave to appeal.
21. In the light of aforesaid discussion, the appeal filed by the appellants who were not parties to the lis is not maintainable. Accordingly, the appeal is dismissed as not maintainable.
(Ved Prakash Vaish, J.)
Order Date :- 30.5.2018 Savita