Hon'ble Arvind K. Tripathi,J.
At the time of filing of the appeal, an application was also filed by the claimants seeking permission/leave to file this appeal against the impugned judgment and order dated 23. 9.11 passed in O.S. No. 125 of 1999.
For disposal of the appeal, the facts in brief can be noticed as under:
Smt. Fatima Begum, who is respondent no. 1 in this appeal, filed a suit for specific performance of contract on the basis of an agreement to sell dated 3.8.1998 against Afsar, who is respondent no. 2 here, under the guardianship of Smt. Akbari, wife of Idrish.
Afsar, the present respondent no. 2, was arrayed as defendant in the suit, but he was mentioned to be deaf and dumb and, therefore, Smt. Akbari, was mentioned as his guardian.
It appears that during the pendency of the suit, the present appellant obtained a sale-deed from Afsar, who was arrayed as defendant, on 23.10.99/3.10.99; and, at the same time an application was also filed for impleadment of the appellant, which is said to have been rejected; and the suit for specific performance of contract on the basis of the agreement to sell was decreed on 23.9.2011.
After the judgement and decree was passed by the trial court, the present apellant filed O.S. No. 1254 of 2011, on 17.10.2011 in which he prayed that the judgement and decree passed in O.S. No. 125 of 2011, which he said to be exparte, be declared illegal, v oid and ineffective and not binding on the plaintiffs, who are the appellants here. The further relief is claimed that the defendants be restrained from interfering in the possession of the plaintiffs and they should not be evicted in any manner except in accordance with law. The other relief was claimed that the judgement and decree passed in O.S. No. 125 of 1999 be declared to be not enforceable against the plaintiffs.
After filing of the suit by the appellants, referred to above, they preferred this appeal by moving an application for permission/leave to file this appeal.
There is averment in the original suit filed by the appellants that Afsar was wrongly described as deaf and dumb and Akbari has wrongly been mentioned as his guardian and, therefore, on the basis of the mental status of the defendant, Afsar, Akbari/Zarina has wrongly executed agreement to sell in favour of the plaintiff and, thereafter, cooperated with the plaintiff in passing of the judgement and decree dated 23.9.2011.
In view of the aforesaid assertion, it has to be adjudicated as to whether Afsar, as mentioned in O.S. No. 125 of 1999 happened to be deaf and dumb and his mental status was not such as to understand the things, necessitating him to be arrayed under the guardianship of Akbari and, keeping in view the mental status of Afsar, whether or not he can be in a position to executed the sale-deed in favour of the present appellants.
The foregoing questions are questions of fact and can be decided by the trial court only after giving an opportunity of evidence (oral and documentary) to both the sides; and if we decide to permit the parties to lead their evidence, and then decide on merits, then that may exhaust a valuable right of appeal against the original order.
In view of the aforesaid, we are of the view that the plaintiffs have rightly taken recourse to the remedy, which can be said to be available to them, of filing a suit for cancellation of the judgement and decree on various ground; and now that has to be decided on merits in accordance with law.
We are not here to make any observation or comment about the allegations, as stated in the plaint, and about the various factual issues as that can be a matter of decision by the trial court before whom the suit has been filed by the appellants.
Thus, we are of the view that grant of permission/leave to file the present appeal, is not required; and the plaintiffs are to be permitted to pursue their case in the suit, which they have already filed.
However, on the facts, we propose to observe that it is always open to the plaintiffs to move a proper application before the trial court for grant of interim relief and, if such an application is filed, decision thereon is to be taken in accordance with law after giving full opportunity to the defendants.
With the aforesaid observations, we decline to accept the submissions of the appellants.
It is made clear that observation, if any, has come in this order either way, then that may not prejudice the mind of trial court and the case has to be dealt/decided as the law permits, including the question of maintainability and all other issues.
The appeal stands disposed of in the light of the observations made above.
Order Date :- 17.4.2012 sks-grade iv