Reserved on 23.11.2017 Delivered on 23.4.2018
Court No. - 26
Case :- WRIT - C No. - 6606 of 2011 Petitioner :- Nirmal Bhawanani Respondent :- Rajasthan Charity Trust And Others Counsel for Petitioner :- Ashish Kumar Srivastava Counsel for Respondent :- S.C.,Ajay Kr Singh,Ashish Kr Singh,Pramod Pathak,Shiva Priya Prasad
Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition was filed by the petitioner / defendant no. 1 praying for a direction for quashing the order dated 6.1.2011 passed by the IV Additional District Judge, Varanasi in Civil Appeal No. 63 of 2010 (Nirmal Bhawnani Vs. Rajasthan Charity Trust & others) and for a direction to the learned Court below to issue summons / notices for service upon the respondent no. 4 on his correct address mentioned in the Application Paper No. 38-C filed in Civil Appeal No. 63 of 2010.
2. An interim order was granted in the aforesaid petition on 4.2.2011 staying further proceedings in Civil Appeal No. 63 of 2010 till the next date of listing and the interim order has been continued since then.
3. Learned counsel for the petitioner / defendant no. 1, Sri Ashish Kumar Srivastava has submitted before this Court that initially the plaintiffs, who are the respondent nos. 1 to 3 in this petition had filed a suit in the Court of Civil Judge, Varanasi bearing no. 223 of 1994 alleging that the respondent no. 1 was a charitable trust and owner of House No. K-4 / 43 Lalghat, Varanasi and respondent nos. 2 & 3 are its trustees.
4. The defendant no. 1, who is the petitioner herein Nirmal Bhawnani and his uncle Manohar Lal Ram Chandranani - the defendant no. 2 had sought permission of the plaintiff- respondent nos. 1 to 3 to occupy House No. K-4/43 Lalghat, Varanasi for a short period of time during their stay at Varanasi. Permission was given in August 1989, but the defendants thereafter failed to vacate the disputed property and the plaintiffs' Trust revoked the license and gave them notice to deliver vacant possession of the house in question.
5. On repeated assurances that defendants would shortly vacate the disputed property, the matter remained pending for almost five years. The plaintiffs therefore were forced to file regular Suit No. 223 of 1994 for a direction to deliver vacant possession of the House No. K-4/43 Lalghat, Varanasi and to be paid damages for use and occupation of the house at the rate of Rs. 50/- per day.
6. It has been submitted that in the said Suit notices were issued against the defendants, but summons were not served ever upon the respondent no. 4, who was impleaded as defendant no. 2 in the suit. Summons could be served only upon the petitioner who was the defendant no. 1 and he while filing the written statement denied the relationship of licensor and the licensee.
7. One of the issues framed in the suit was whether the defendant no. 2 illegally inducted the defendant no. 1 in the disputed property. Since the defendant no. 2 never appeared, the suit was decreed ex-parte against him and after contest against the defendant no. 1 on 7.4.2010.
8. The petitioner / defendant no. 1 aggrieved by the said judgment and order dated 7.4.2010 filed Civil Appeal No.
63 of 2010. During the pendency of the Appeal, notices were again issued to the respondent no. 4 upon the address mentioned in the Appeal, which was the address of the defendant no. 2 in the plaint i.e. the House No. K-4/43 Lalghat, Varanasi.
9. The plaintiff-respondents filed an Application No. 14-C alleging that the respondent no. 4 did not appear during the pendency of the original suit and service of notice to respondent no. 4 may be suspended. This application was rejected by the Appellate Court on 10.8.2010 and in the order dated 10.8.2010, the Appellate Court had found the respondent no. 4 to be a necessary party to be heard in the Appeal.
10. Thereafter, after summons were issued to the respondent no. 4 on the address of the disputed property at Varanasi, which were returned unserved. An application was moved by the petitioner (Paper No. 28-Ga) praying for permission to resort to publication or substituted service. This application was allowed on 28.1.2010 with a direction to file affidavit of compliance including copy of publication of notice in the newspaper within a week.
11. The petitioner thereafter got the notice published in “Dainik Manyawar) a Local Newspaper published from Varanasi and Jaunpur.
12. Later on, the petitioner came to know that the respondent no. 4 was living at Plot No. 320, Flat No. 5 Jagta Bhawan, Kartak Road Wadala, Mumbai-4000031, and therefore, he moved an application on 22.12.2010 marked as Paper No. 38-Ga for recall of order dated 21.8.2010 and for issuance of notice at the correct address mentioned for the respondent no. 4.
13. This application was rejected by the Appellate Court on 6.1.2011 by saying that the petitioner / appellant in Civil Appeal No. 63 of 2010 had himself mentioned the address of the respondent no. 4 in his Appeal, and the lower Court record was summoned, and the address mentioned in the Appeal, and before the Civil Judge was found to be the same i.e. of the disputed property situated at Varanasi. The application for substituted service through publication had also been moved by the appellant himself which was allowed on 28.1.2010, and substituted service through publication was also found sufficient by the Court on 14.9.2010, therefore there was no good ground to recall the order dated 21.8.2010 or even order dated 10.8.2010.
14. Learned counsel for the petitioner has argued that the Varanasi address of the respondent no. 4 was given by the respondent nos. 1 to 3 in the plaint itself, but since he has now come to know that the respondent no. 4 is living at Mumbai, he had thus moved an application bonafide that service be effected on the respondent no. 4 who has been already been determined by the Appellate Court to be a necessary party to be heard in the Appeal its order dated 10.2.2010.
15. Learned counsel for the petitioner has argued that respondent nos. 1 to 3 had also admitted during the course of hearing before the lower Court and also before the Appellate Court that the respondent no. 4 lives in Mumbai even then the Court has not issued any notice upon the respondent no. 4 at the correct address of Mumbai. The Appellate Court seemed to be a great hurry to decide the matter without serving notice to respondent no. 4, who is a necessary party. Non service of notice upon the respondent no. 4 would deprive the petitioner from his right to adduce evidence in support of his contentions in the Suit and also in the Appeal that respondent no. 4 had not inducted him in the property in question, but the petitioner / appellant had an independent right to the property as the erstwhile owner had gifted the property in favour of his father and the said property thereafter devolved upon him.
16. A counter affidavit has been filed on behalf of the respondent no. 4 Manohar Lal Ram Chandranani supporting the contentions made by the petitioner / appellant. This counter affidavit is dated 1.8.2016 and admits that the correct address of the respondent no. 4 is Plot No. 320, Flat No. 5 situated at Jagta Bhawan, Kartak Road Wadala, Mumbai-400031 and that he has been living in Mumbai for the past more than ten years and the summons in the Regular Suit No. 223 of 1994 was never served upon him as his incorrect address was mentioned. Therefore, the judgment and order dated 7.4.2010 was passed exparte against him.
17. A counter affidavit has been filed in the aforesaid case by the respondent nos. 1 to 3 also. Sri Ajai Kumar Srivastava appearing for them has vehemently opposed the aforesaid petition and has placed before this Court certain facts to show that the petitioner / appellant was resorting to delaying tactics so that he may not be forced to vacate the disputed property in question. It has been submitted that the notice was served at the correct address of the respondent no. 4, as he is the nephew (Bhanja) of the petitioner / appellant and he deliberately did not mention the correct present address in the Appeal. It has been submitted by Sri A.K. Srivastava initially, the regular Suit No. 223 of 1994 was decreed exparte against the defendant in 1998 and an application was filed under Order 9, Rule 13 CPC by the petitioner / defendant no. 1 which was allowed on payment of costs and submission of surety to the tune of Rs. 15,000/- as well as Rs. 1,000/- per month for use and occupation of the house in question.
18. Against the order passed by the lower Court, the petitioner filed a Civil Revision No. 442 of 1996, which was dismissed by the III Additional District Judge, Varanasi. These orders were challenged by the petitioner by filing a Misc. Writ Petition which was disposed of with certain conditions imposed upon the petitioner for restoration of suit to its original number.
19. The Suit was thereafter heard afresh on merits and the judgment and order dated 7.4.2010 directed the defendants to vacate the disputed property within two months and handover vacant possession to the Trust and also to give Rs. 50/- per day as damages from the date of Institution of Suit till actual handing over of vacant possession. In case the defendants refused to do so, the plaintiffs would be at liberty to initiate execution proceedings against them.
20. It has been submitted by Sri Ajai Kumar Srivastava appearing for the contesting respondents that since the suit was decided ex-parte against the respondent no. 4 and the respondent no. 4 did not choose to file any Appeal against the judgment of the Trial Court, it was not necessary to serve notice upon him at the Appellate stage in view of the provisions of the Order 41, Rule 14(4) of the CPC. There was collusion between the respondent no. 4 and the petitioner as respondent no. 4 is the nephew (Bhanja) of the petitioner / appellant and he knew the correct address of his nephew residing at Mumbai since the very beginning. Since the petitioner is enjoying the disputed property since 1989, the petitioner does not wish to vacate the same and delaying tactics are being resorted to by him, by moving various applications before the Appellate Court so that the Appeal may not be decided.
21. Having heard the learned counsel for the petitioner, Sri Ajai Kumar Srivastava for the respondent nos. 1 and 2, Sri Shiva Priya Prasad for the respondent no. 3 and Sri Pramod Pathak for the respondent no. 4 and having gone through the orders impugned, this Court finds that a few facts that have been admitted by both the parties. Firstly, the disputed property is situated at Varanasi. Initially it was in the occupation of the petitioner and respondent no. 4, who is his nephew (Bhanja). The respondent no. 4 thereafter moved out of the disputed property, either during the pendency of the suit or even before its Institution. The fact remains that the respondent no. 4 is no longer in occupation of the property and for the past more than ten years, he is living in Mumbai. The plaintiffs had mentioned the last known address of the respondent no. 4 in the plaint because they wanted a decree of eviction against him also, as he was at the time living in the said property.
22. The Court of Civil Judge (Senior Division), Varanasi had held both the defendants to be licensees of the plaintiffs and liable to vacate the property in question. One of the defendants vacated the property, therefore his license terminated automatically. The other defendant continued to contest the suit and having lost the same also filed Appeal. As such the respondent no. 4 having vacated the property and no longer being in its occupation cannot be said to be a necessary party, but as per Order 14, Rule 1, the Appellate Court has to ensure that copy of the Appeal is served upon all the respondents or on their pleader in the manner provided for service on the defendant of a summon to appear and answer; and all the provisions applicable to such summons and to proceedings with reference to service thereof, shall apply to the service of such notice.
23. The Order 41, Rule 14(iv) which has been cited by the learned counsel for the respondent nos. 1 to 3 would not apply in this case, as the copy of the Appeal itself has not been served upon respondent no. 4, even though the Appellate Court had held him to be a necessary party to be heard in its order dated 10.2.2010.
24. In any case, the respondent no. 4 has appeared before this Court by engaging a counsel and filing an affidavit and stating therein that his correct address is Plot No. 320, Flat No. 5, Jagta Bhawan, Kartak Road Wadala, Mumbai-400031 as such he has now sufficient notice of the pendency of Appeal and interests of justice would be served if a direction is issued for the respondent no. 4 to appear before the Appellate Court now.
25. Accordingly, this writ petition is disposed of with a direction to all the parties herein to ensure their appearance before the Court of Additional District Judge, Varanasi in Civil Appeal No. 63 of 2010 (Nirmal Bhawanani Vs Rajasthan Charity Trust & others) on 30.4.2018.
26. The learned Court below shall make an effort to decide the Appeal on merits thereafter within a further period of six months as the Appeal has been pending for more than six years.
27. Interim order staying the proceedings in the Appeal stands vacated.
Order Date :- 23.4.2018 Arif