Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8147 of 2017 Petitioner :- Manohar Lal Jain And Ors. Respondent :- Smt. Saroj Jain And Ors. Counsel for Petitioner :- Rakesh Kumar Counsel for Respondent :- S.C.,Amit Saxena Alongwith Case :- WRIT - C No. - 6637 of 2001 Petitioner :- Swatantra Kumar And Others Respondent :- Civil Judge Senior Div.Banda And Others Counsel for Petitioner :- Amit Saxena Counsel for Respondent :- C.S.C,O.P. Mishra,R.K. Singh,Vishnu Gupta
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioners and perused the record.
The present petition is directed against the order dated 17.9.2009 whereby three applications 4-Ga-2 filed separately by the petitioners herein/appellants in Civil Misc. Appeal No.44 of 1998, 45 of 1998 and 46 of 1998 (namely Civil Misc. Application No.7/74 of 2001, 8/74 of 2001 and 9/74 of 2001), had been rejected.
The aforesaid three applications had been filed seeking correction in the operative portion of the judgment and order dated 22.11.2000 passed by the Additional District Judge, Banda in three connected appeal Nos.44 of 1998 , 45 of 1998 and 46 and 1998, arising out of Original Suit Nos.3/74 of 1968 (Gulab Chand Jain v. Kapoor Chand Jain & Ors.) and the objections namely Misc. Case No.3/74 of 1968 Misc. Case No.4 /74 of 1968 ( Sagun Chand Jain & Ors. v. Kapoor Chand Jain).
The submission of learned counsel for the petitioner is that in view of the findings returned by the first appellate court in the judgement and order dated 22.11.2000, there cannot be second opinion about the fact that the Original Suit No.4 of 1968 (Kapoor Chand v. Gulab Chand) filed by the predecessors of the petitioners herein, for making award Paper No.28-Ka dated 24.10.1964 rule of the court, has been accepted. The objections raised by the respondents namely the objectors in Misc. Case no.3/74 of 1968 and 4/74 of 1968 had been rejected. The consequence of rejection of objections of the opposite parties would be that the Appeal nos.45 of 1998 and 46 of 1998 ought to have been allowed. The trial court had erred in dismissing the two appeals while recording its conclusion in the operative portion of the order.
Submission, thus, is that the prayer for correction of the operative portion of the order dated 22.11.2000, recording dismissal of Appeal No.45 of 1998 and 46 of 1998, being technical error, ought to have been allowed by the first appellate court.
No one appears on behalf of the respondents.
Having carefully perused the judgement and order dated 27.3.1998 passed by the Civil Judge (Senior Division) Banda in the Original Suit No.4 of 1968 connected with the objections namely Misc. Case No.3/74 of 1968 and 4/74 of 1968, as also the judgment of the first appellate court dated 22.11.2000 in three connected appeal nos.44, 45 and 46 of 1998, this Court finds that the conclusion drawn by the trial court on Issue Nos.2,3, 4, 6 and 10 had been upheld with some exception by the first appellate court made in the light of the observations in the body of the judgment, itself.
Relevant paragraph '48' of the judgment and order dated 22.11.2000 of the first appellate court, is to be quoted hereunder:-
"48. On the basis of the above discussions I have come to the conclusion that the conclusions drawn by the learned Civil Judge (Senior Division), Banda regarding the disposal of Issues No.1,5, 7, 8 and 9 is not based on sound legal footings and, therefore are not sustainable and should be reversed. So far as the conclusion regarding Issues No.2, 3, 4, 6, 10 and 11 except the condemantion of award on the ground of unidentifiable properties need not be changed. Thus appeal no.45 of 1998 and 46 of 1998 arising out of Misc. Civil Suit No.3/74 of 1968 and 4/74 of 1968 are liable to be dismissed and appeal no.44 of 1998 arising out of Original Suit No.4 of 1968 is liable to the allowed."
The operative portion of the judgment and order dated 22.11.2000 further reads as under:-
"Appeal No.45 of 1998 arising out of Misc. Civil Suit No.3/74 of 1968 Gulab Chand v. Kapoor Chand Jain etc and Appeal No.46 of 1998 arising out of Misc. Civil Suit No.4/74 of 1968 Sagun Chand Jain v. Kapoor Chand Jain and others are dismissed with costs. However, Civil Appeal No.44 of 1998 arising out of Original Suit No.4 of 1968 Kapoor Chand Jain & Ors. v. Gulab Chand Jain & Ors. is allowed and order passed by the learned Civil Judge (Senior Division), Banda dated 27.3.1998 against this suit is set aside in view of discussion contained in the body of the judgement. Award paper no.28Ka dated 24.10.1964 filed in Original Suit No.4 of 1968 Kapoor Chand Jain & Ors. v. Gulab Chand Jain & Ors. is accepted and is made rule of the Court. Let decree be prepared accordingly."
The relevant extract of the judment and order dated 27.3.1998 of the trial court in the concluding portion of its judgment and order dated 27.3.1998, is also relevant to be quoted hereunder:-
"उक्त सभभी ववाद बबिन्दओ कके बनिष्करर कको दकेखनिके सके स्पष्ट हको जवातवा हहै बक मध्यस्थ दवारवा बवववाबदत पपंचवाट कके अन्तररत अपचवार (बमसकन्टकेक्ट) कवाररत बकयवा रयवा हहै और पपंचवाट मम बवधधिक एवपं तथ्यवात्मक दकोर अन्तबनिरबहत हहै तथवा बवदकेरपपूरर बनिररय सके ग्रधसत हहै पपंचवाट अवहैधि हहै। प्रककीरर ववाद सपंख्यवा 4/74 सनिन् 1968 सरदनि चन्द्र जहैनि बिनिवाम कपपूर चन्द्र जहैनि व अन्य मम प्रकेबरत आपधत्तिययों मम बिल हहै और स्वभीकवार बकयके जवानिके यकोग्य हहै। फलस्वरुप धिवारवा 14(2) मध्यस्थतम अधधिबनियम कके अन्तररत पपंचवाट कवारज सपं 0 28 क बदनिवानाँबकत 24.10.64 बिनिवायके जवानिके हकेतद प्रकेबरत मपूलववाद सपंख्यवा 4 सनिन् 1968 कपपूर चन्द्र जहैनि व अन्य बिनिवाम रल वाबिचन्द्र जहैनि व अन्य खवाररज हकोनिके यकोग्य ह। पपंचवाट कको बिनिवायके जवानिके मम हहए बवलम्बि कको मवाफ बकयके जवानिके हकेतद प्रकेबरत आवकेदनि पत्र बदनिवानाँबकत 7.8.82 अन्तररत धिवारवा 28 मध्यस्थतम अधधिबनियम उक्त पररसस्थबतययों मम बनिरस्त बकयके जवानिके यकोग्य हहै।.."
Considering the same, it can safely be concluded that the first appellate court while deciding three appeals vide judgment and order dated 22.11.2000 though had upheld the prayer of the petitioners (plaintiffs in Original Suit No.4 of 1968) to make the award rule of the court, but had taken certain exceptions and had upheld the findings of the trial court for condemnation of award on the ground of unidentifiable properties. The award has thus been made rule of the court and the order of the trial court has been set aside, in the light of the discussions contained in the body of the judgment of the Appellate Court. The result is that the award has been made rule of the court subject to certain observations made by the first appellate court in the judgment and order dated 22.11.2000. The executing court, thus, is required to take into account the said observations, at the time of execution of the award. The prayer of the petitioners to correct the operative portion of the judgment and order dated 22.11.2000 of the first appellate court, terming it as clerical mistake, therefore, was rightly rejected.
The prayer of the petitioner seeking correction of the order of the appellate court is, thus, found devoid of merits.
Subject to the above observations, the present petition is disposed of.
Order Date :- 27.2.2019 Jyotsana