TMI Blog2013 (4) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... Application No. 206905 of 2002 of the High Court of Judicature at Allahabad, dismissing the review petition. In the aforesaid judgments, the courts below have held, that the relationship of a landlord and tenant did not exist between Respondent Nos. 1 and 2 and the Appellants. 2. Facts and circumstances giving rise to this appeal are that: A. The dispute pertains to the ownership of shop No. 53/11 (old number) corresponding to its new number, i.e. 53/8, Nayayaganj, Kanpur Nagar. Janki Bibi (1st) daughter of Har Dayal, was married to one Durga Prasad, son of Dina Nath. Radhey Shyam was the adopted son of Durga Prasad, whose son Shyam Sunder was married to Janki Bibi (2nd). Shyam Sunder died in the year 1914. Thus, Radhey Shyam created a life interest in the property in favour of Janki Bibi (2nd), by way of an oral Will, which further provided that she would have the right to adopt a son only with the consent of Mohan Lal, the grand son of Har Dayal. Gopi Krishan, the great grand son of Mohan Lal, claims to have been adopted by Janki Bibi (2nd), with the consent of Mohan Lal, and as regards the same, a registered document was also prepared. B. Gopi Krishan filed a Regular S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court, Kanpur, dismissed Suit No. 77 of 1989 vide judgment and decree dated 10.5.1999, holding that no relationship of landlord and tenant existed between Respondent Nos. 1 and 2 and the Appellants. However, the said judgment and decree was set aside by the Revisional Court, vide judgment and decree dated 8.3.2000, and the case was remanded to the Judge, Small Causes Court for deciding the same afresh. H. After such remand, the suit was decreed vide judgment and decree dated 20.4.2001, holding that the suit property had been acquired by Gopi Krishan Agrawal, Plaintiff/Respondent, by virtue of the judgment in Suit No. 45 of 1956, which was decided on 23.4.1958, and that the relationship of a landlord and tenant, could in fact be deemed to have been created between the parties. The Appellants/Defendants had hence, been in default of payment of rent. I. Aggrieved, the Appellants filed Revision No. 57 of 2001 before the learned District Judge, Kanpur, which was dismissed vide judgment and order dated 13.5.2002. The said judgment and order has been affirmed by the High Court, dismissing the writ petition vide judgment and order dated 6.9.2002. J. Aggrieved, the Appellants pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act 1956 would become otios. Section 14(2) carves out an exception to rule provided in Sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a life interest , it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title. While deciding the said issue, this Court has placed reliance upon various previous judgments of this Court, including Mst. Karmi v. Amru and Ors. AIR 1971 SC 745; Navneet Lal @ Rangi v. Gokul and Ors. AIR 1976 SC 794; Sadhu Singh v. Gurdwara Sahib Narike and Ors. AIR 2006 SC 3282; and Jagan Singh (Dead) Through L.Rs. v. Dhanwanti and Anr. (2012) 2 SCC 628. (See also: Muniananjappa and Ors. v. R. Manual and Anr. AIR 2001 SC 1754; Sharad Subramanyan v. Soumi Mazumdar and Ors. AIR 2006 SC 1993; and Gaddam Ramakrishnareddy and Ors. v. Gaddam Ramireddy and Anr. (2010) 9 SCC 602. 7. In order to operate as res judicata, the finding must be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstance. 9. While dealing with the provisions of Section 23 of the Act, 1887, this Court in Budhu Mal v. Mahabir Prasad and Ors. AIR 1988 SC 1772 held, that a question of title could also be decided upon incidentally, and that any finding recorded by a Judge, Small Causes Court in this behalf, could not operate as res judicata in a suit based on title. Furthermore, the procedure adopted in the trial of a case before the Small Causes Court is summary in nature. Clause (35) of Schedule II to the Act 1887, has made the Small Causes Court a court of limited jurisdiction. Certain suits are such, in which the dispute is incapable of being decided in a summarily. 10. We have further examined the record of the case, and the Court of Small Causes, while determining the issues involved therein, has taken note of the result of the earlier Suit No. 45 of 1956, decreed vide judgment and decree dated 23.4.1958, and also of the Execution Appeal No. 64 of 1965, in the matter of Smt. Bibi Devi v. Janki Bibi, wherein it was held, that Janki Devi (2nd), being a life estate holder had no right to transfer the property. In Execution Appeal No. 64 of 1965, Smt. Ram Kumari, mother of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the 'Code of Civil Procedure'), for setting aside the judgment and decree dated 22.5.2000 in Misc. Case No. 66 of 1999. 14. Facts and circumstances giving rise to these appeals are that: A. The dispute pertains to the ownership of shop No. 53/11 (old number) corresponding to its new number, i.e. 53/8, Nayayaganj, Kanpur Nagar. Janki Bibi (1st) daughter of Har Dayal, was married to one Durga Prasad, son of Dina Nath. Radhey Shyam was the adopted son of Durga Prasad, whose son Shyam Sunder was married to Janki Bibi (2nd). Shyam Sunder died in the year 1914. Thus, Radhey Shyam created a life interest in the property in favour of Janki Bibi (2nd), by way of an oral Will, which further provided that she would have the right to adopt a son only with the consent of Mohan Lal, the grand son of Har Dayal. Gopi Krishan, the great grand son of Mohan Lal, claims to have been adopted by Janki Bibi (2nd), with the consent of Mohan Lal, and as regards the same, a registered document was also prepared. B. Gopi Krishan filed Regular Suit No. 45 of 1956 against Smt. Janki Bibi (2nd), in the Court of the Civil Judge Mohanlal Ganj, Lucknow, seeking the relief of declaration, statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 was not impleaded as a party. The Tribunal vide judgment and order dated 22.5.2000 held that the opposite parties were entitled to receive compensation (including enhancement) relating to the aforesaid property. In pursuance of the said Reference award, the Appellants applied for withdrawal of the enhanced compensation. When Respondent No. 1 learnt about the order dated 22.5.2000, he filed an application under Order IX Rule 13 read with Section 151 Code of Civil Procedure, for the purpose of setting aside the said award dated 22.5.2000. The Tribunal, vide order dated 20.2.2002, rejected the said application, on the ground that an application under Order IX Rule 13 can only be filed by a person who was a party to the proceedings in which such an order was passed, and that such an application was not maintainable at the behest of a stranger. G. Aggrieved, the Respondents preferred a writ petition before the High Court, which has been allowed by the Court holding, that while an application under Order IX Rule 13 was not maintainable, the said award should have been set aside in exercise of its powers under Section 151 Code of Civil Procedure, as the same was required to be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice of the said stranger. 18. However, in Dulhim Suga Kuer and Anr. v. Deorani Kuer and Ors. AIR 1952 Pat 72, the Patna High Court dealt with the provisions of Section 146 Code of Civil Procedure, which contemplate a change of title after the decree has been awarded and held that, the true test is whether the transferee is affected by the order or decree in question. Where, the transfer is subsequent to the ex parte decree, the transferee would certainly be interested in setting aside the ex parte decree. 19. In Surajdeo v. Board of Revenue U.P. Allahabad and Ors. AIR 1982 All 23, the Allahabad High Court dealt with an issue where an application was filed by a non-party, under Order IX Rule 13 Code of Civil Procedure to set aside the ex parte decree. The Court held: the Petitioner was vitally interested in the decree passed in favour of the contesting opposite parties which he wants to be vacated. If the decrees in favour of the contesting opposite parties remain intact, the Petitioner's right of irrigating his fields from the disputed land shall be vitally affected. In such a circumstance even if the Petitioner is assumed to have no locus standi to move the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law. (See: B.V. Patankar and Ors. v. C.G. Sastry AIR 1961 SC 272; Ram Chandra Singh v. Savitri Devi and Ors. AIR 2004 SC 4096; Jet Plywood Pvt. Ltd. v. Madhukar Nowlakha AIR 2006 SC 1260; State Bank of India v. Ranjan Chemicals Ltd. and Anr. (2007) 1 SCC 97; State of Haryana and Ors. v. Babu Singh (2008) 2 SCC 85; Durgesh Sharma v. Jayshree AIR 2009 SC 285; Nahar Industrial Enterprises Ltd. v. H.S.B.C. etc. etc. (2009) 8 SCC 646; and Rajendra Prasad Gupta v. Prakash Chandra Mishra and Ors. AIR 2011 SC 1137). 21. In exceptional circumstances, the Court may exercise its inherent powers, apart from Order IX Code of Civil Procedure to set aside an ex parte decree. An ex-parte decree passed due to the non appearance of the counsel of a party, owing to the fact that the party was not at fault, can be set aside in an appeal preferred against it. So is the case, where the absence of a Defendant is caused on account of a mistake of the Court. An application under Section 151 Code of Civil Procedure will be maintainable, in the event that an ex parte order has been obtained by fraud upon the court or by collusion. The provisions of Order IX Code of Civil Procedure may not be attra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. No party has a right to inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise the inherent power. (Emphasis added) 23. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. MANU/SC/0657/1996 : AIR 1996 SC 2592, this Court dealt with a similar case and observed, that fraud not only affects the solemnity, regularity and orderliness of the proceedings of the court, but that it also amounts to abuse of the process of court. The Court further held, that the judiciary in India also possesses inherent powers, specially under Section 151 Code of Civil Procedure, to recall its judgment or order if the same has been obtained by fraud upon the court. In the case of fraud upon a party to the suit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised. 26. Be that as it may, the Tribunal decided the case of compensation filed by the Appellants on 22.5.2000, and the application filed by the Respondents under Order IX Rule 13 Code of Civil Procedure was dismissed vide order dated 20.2.2002. The Respondents challenged the said order dated 20.2.2002, by filing Writ Petition No. 764 of 2002 in the High Court, and the same stood dismissed in default. The same was restored, heard and disposed of vide order dated 12.12.2005, by way of which the said Writ Petition was dismissed, in view of the alternative remedy of appeal. Such an order was passed in view of the fact that the order passed by the Tribunal was appealable under Section 381 of the U.P. Nagar Maha Palika Adhiniyam, 1959, to the High Court. The Respondents filed an appeal to recall the said order, the court heard such appeal on merits. However, the said application for recall was dismissed in default vide order dated 12.1.2009. A second application for recall was then filed, which was also dismissed in default vide order dated 15.3.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. In the event that any other person has withdrawn the amount of compensation, the person interested , if so aggrieved, has a right either to resort to the proceedings under the provision of Act 1894, or he may file a suit for the recovery of his share. While deciding the said case, reliance has been placed upon a large number of judgments of this Court, including Dr. G.H. Grant v. State of Bihar AIR 1966 SC 237. 30. The said case is required to be examined from another angle. Undoubtedly, the Respondents did not make any application either under Section 18 or Section 30 of the Act, 1894 to the Land Acquisition Collector. The jurisdiction of the Reference Court, vis- -vis persons interested has been explained by this Court in Shyamali Das v. Illa Chowdhry and Ors. AIR 2007 SC 215, holding that the Reference Court does not have the jurisdiction to entertain any application of pro interesse suo, or in the nature thereof. The Court held as under: The Act is a complete code by itself. It provides for remedies not only to those whose lands have been acquired but also to those who claim the awarded amount or any apportionment thereof. A Land Acquisition Judge derives its juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to redress only such a grievance, for which no remedy is provided for under the Code of Civil Procedure; (iii) In the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate court; (iv) Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a party has the right to get the said judgment or order set aside, by filing an independent suit. (v) A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Act, 1894, but cannot make an application for impleadment or apportionment before the Reference Court. 33. The instant case has been examined in light of the aforesaid legal propositions. We are of the considered opinion that the impugned judgment and order of the High Court cannot be sustained in the eyes of law, and is hence liable to be set aside. In view of the above, the appeals succeed and are allowed. The judgment and order impugned herein are set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
