Court No. - 37 Case :- SECOND APPEAL DEFECTIVE No. - 237 of 2016 Appellant :- Kunwar Pal Singh Respondent :- Parmanand Tiwari And 9 Othrs. Counsel for Appellant :- Udai Chandani Counsel for Respondent :- Rajesh Kumar Mishra
Hon'ble Ved Prakash Vaish,J.
1. Heard Sri Udai Chandani, learned counsel for the appellant and Sri Anil Kumar Tiwari, Advocate holding brief of Rajesh Kumar Mishra, learned counsel for the responents.
2. There is an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. Learned counsel for the respondents has not put to contention the delay. Learned counsel for the respondents submits that the delay may be condoned and the appeal be heard. Accordingly, the application for condonation is allowed and delay is condoned. The Civil Misc. Delay Condonation Application No.224878 of 2016 stands disposed of.
3. This is an appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.') against the impugned judgment dated 18.12.2015 and decree dated 19.12.2015 passed by learned Additional District Judge, Agra in Civil Appeal No.166 of 2011 judgment and decree dated 28.5.2011 passed by learned Additional Civil Judge (S.D.), Agra.
4. The brief facts giving rise to the present appeal are that the respondent no.1, Sri Parmanand Tiwari (plaintiff in the suit) filed an Original Suit No.178 of 2005 against the respondent nos.1A to 5 (defendant nos.1 to 5 in the suit) for declaration and injunction in respect of property bearing Araji No.332, mearuring 0.034 Hectare, situated in Vill. Bhood Ka Baag, Mauja Ghatwasan, Tehsil and Distt. Agra.
5. The suit was contested by the respondent nos.1A to 5 (defendants) by filing written statement.
6. After recording evidence of both the parties, the suit filed by the respondent no.1 was dismissed by learned Additional Civil Judge, (S.D.), Agra vide judgment and decree dated 28.5.2011.
7. Against the said judgment and decree, the respondent no.1 herein filed an appeal bearing Civil Appeal No.166 of 2011. During the pendency of the appeal, the respondent no.1 moved an application for compromise dated 18.11.2015. The present appellant moved an application for impleadment dated 27.11.2015 and the said application for impleadment was dismissed on 16.12.2015. The appeal was disposed of in terms of compromise by learned Additional District Judge, Agra vide judgment dated 18.12.2015 and decree dated 19.12.2015.
8. Feeling aggrieved by the judgment and decree dated 28.5.2011 and judgment dated 18.12.2015 and decree dated 19.12.2015, the appellant has filed the present second appeal as proposed appellant.
9. At the outset, a preliminary objection has been raised by the respondent no.1 that the appellant was not party in the suit and the appeal filed by him is not maintainable. Learned counsel for the respondent no.1 also submits that an application for impleadment dated 27.11.2015 was filed by the appellant before the first appellate court which was dismissed on 16.12.2015. The said order was not challenged by the appellant and the same has become final.
10. Learned counsel for the appellant submits that the respondent no.1, Sri Parmanand Tiwari executed a general power of attorney dated 29.8.2012 in favour of Sri Manoj Yadav, Sri Udaiveer Singh and Sri Rajveer Singh and authorised them to sell the property of Sri Parmanand Tiwari. On the basis of said general power of attorney, Sri Manoj Yadav, Sri Udaiveer Singh and Sri Rajveer Singh executed an agreement to sell in respect of the property in question on 23.9.2013 in favour of the present appellant, Sri Kunwar Pal Singh.
11. Learned counsel for the appellant submits that the appellant is aggrieved by judgment and decree dated 28.5.2011 passed by learned Additional Civil Judge (S.D.), Agra and judgment dated 18.12.2015 and decree dated 19.12.2015 passed by learned Additional District Judge, Agra and therefore, he can file the present appeal. In support of his submissions, learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of 'Sneh Gupta Vs. Devi Sarup and otheres', (2009) 6 SCC 194.
12. Admittedly, the appellant, Sri Kunwar Pal Singh was not a party to the suit. It is also not disputed by the appellant that the application for impleadment was filed on 27.11.2015 before learned first appellate court and the said application was dismissed on 16.12.2015. It is also not disputed that the appellant did not challenge the said order.
13. 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.
14. 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 between 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.
15. 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.
16. 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.
17. In the instant case, the appellant has not moved an application for seeking relief to file an appeal against the impugned judgment.
18. Moreover, according to the appellant, the respondent no.1, Sri Parmanand Tiwari executed a general power of attorney in favour of Sri Manoj Yadav, Sri Udaiveer Singh and Sri Rajveer Singh and on by virtue of said power of attorney, the said persons in favour of whom, the power of attorney was executed, were authorised entered into agreement to sell. Clause 3 of the general power of attorney prohibits the attorney holders to sign on the sale deed. The attorney holders were not authorised to accept the consideration amount on behalf of the Sri Parmanand Tiwari. Further, the attorney holders entered into an agreement to sell with the appellant, Sri Kunwar Pal Singh and no sale deed was executed.
19. The judgment in the case of 'Sneh Gupta' (supra) relied upon by the appellant is not applicable to the facts of the present case.
20. For the aforesaid reasons, the appeal filed by the appellant, who was not a party to the list, is not maintainable.
21. Accordingly, the present appeal is dismissed as not maintainable.
(Ved Prakash Vaish, J.) Order Date :- 31.5.2018 Vivek Kr.