Dwarika Prasad vs Nirmala & Ors

Nirmala and others ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This appeal, by special leave, is directed against

judgment dated March 29, 2007 rendered by the High

Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in

Civil Revision No. 122 of 2005, by which order dated

May 5, 2005, passed by the learned First Additional

District Judge, Gwalior in MJC No. 3 of 2004 allowing

the application filed by the respondent No. 1 under

Order IX Rule 9 read with Section 151 of the Code of

Civil Procedure is confirmed and order dated December

16, 2003 in MJC No.35 of 2001 (new number 29 of 2003)

dismissing the said case for default as well as order 2 dated August 23, 2001 dismissing MJC No. 25 of 1998 for

default are set aside and Civil Suit No.3A of 1996,

which was dismissed as withdrawn on February 28, 1997,

is restored.

3. The relevant facts emerging from the record of the case

are as under:

Late Mr. Shankar Lal, who was father of the respondent

No. 1, filed Civil Suit No. 11 of 1955 for partition of the joint

properties. The said suit was decreed on July 10, 1978. Feeling

aggrieved, the appellant preferred First Appeal No. 60 of 1978

before the High Court. The learned single Judge of the High

Court set aside the decree passed by the trial court and remanded

the matter to the trial court for fresh decision vide order dated

September 30, 1991. Against the order of remand, LPA No. 32 of

1991 was filed by father of the respondent No.1. On February 24,

1997 an application was filed by late Mr. Shankar Lal who was

father of the respondent No.1 for withdrawal of LPA No.32 of

1991. The LPA was dismissed as withdrawn on the same date, i.e.,

February 24, 1997. In the year 1996 Civil Suit No. 11 of 1955

filed for partition of the joint properties was given new number

as 3A of 1996. On February 28, 1997 another application was

filed for withdrawal of Civil Suit No. 3A of 1996 by the father

of the respondent No. 1. In view of the contents of the said 3 application the Civil Suit was also dismissed as withdrawn on the

same date, i.e., on February 28, 1997. On August 11, 1998,

father of the respondent No. 1 expired. The respondent No.1

filed an application on September 2, 1998 for recalling the order

dated February 24, 1997, passed in LPA No. 32 of 1991. There was

delay in filing the application seeking recall of order dated

February 24, 1997. Therefore, another application was filed for

condonation of delay. The respondent No.1 alleged in her

application that the application dated February 24, 1997,

purportedly filed by her late father, for withdrawal of Letters

Patent Appeal, in fact did not bear the signature of her father

and, thus, signature of her father was forged. It was mentioned

in the application that Mr. J.P. Sharma, advocate, had noted his

appearance on behalf of her father in Civil Suit No. 3A of 1996

subsequently without seeking no objection certificate from the

previous counsel, who had filed the plaint, and thereafter filed

application for withdrawal of LPA, which was illegal and,

therefore, the order dated February 24, 1997 disposing of the LPA

as withdrawn should be recalled. The High Court heard the

learned counsel for the parties and by order dated January 10,

2005 condoned the delay in filing the application seeking recall

of order dated February 24, 1998 by which the LPA 32 of 1991 was

dismissed as withdrawn and allowed the application of respondent

No. 1 for recalling order dated February 24, 1997. While 4 allowing the application filed by respondent No. 1 the High Court

observed that a fraud was played upon the Court and directed the

Registrar of the Court to file a complaint against Advocate Mr.

J.P. Sharma and also against Advocate Mr. S.C. Goyal, who had

identified the signature of late father of the respondent No. 1.

The High Court also directed the Registrar to initiate criminal

proceedings against the present appellant who was supposed to be

the beneficiary of the act of forging for initiating criminal

proceedings by filing a complaint.

4. The two advocates, i.e., Mr. J.P. Sharma and Mr. S.C.

Goyal challenged the order dated January 10, 2005

directing the Registrar of the High Court to file a

complaint against them by filing Special Leave Petition

No. 1546 of 2005 before this Court. The said Special

Leave Petition was dismissed on April 15, 2005 by this

Court in the following terms: -

"Permission to file SLP is granted.

We see no reason to interfere.

The Special Leave Petition is dismissed save and except we clarify that the observations of the High Court shall not be taken into consideration in any proceedings."

Thus, the direction given by the High Court to initiate criminal

proceedings against Mr. J.P. Sharma and Mr. S.C. Goyal was

upheld.

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5. LPA No. 32 of 1991 was, therefore, posted for hearing

on merits before the High Court. The High Court, by

judgment dated August 17, 2005, dismissed the said

appeal holding that the LPA was not maintainable. As

the Division Bench of the High Court held that the LPA

was not maintainable, the respondent No.1 filed

Special Leave Petition No.24597 of 2005 in this Court

challenging the validity of the judgment dated

September 30, 1991, rendered by the learned Single

Judge of the High Court in First Appeal No. 60 of 1978

remanding the matter to the trial court for fresh

decision. This Court, vide order dated November 21,

2005, condoned the delay caused in filing the S.L.P.

and dismissed the Special Leave Petition. This Court

also directed expeditious disposal of the suit. Thus

order of remand dated September 30, 1991 was upheld by

this Court.

6. The respondent No. 1 had filed an application on

September 17, 1998 for restoration of Civil Suit No.

3A of 1996, which was dismissed as withdrawn on

February 28, 1997. On August 23, 2001 the said

application for restoration was dismissed for default.

Therefore, the respondent No. 1 filed an application

for setting aside the order dated August 23, 2001 and 6 for restoration of the application seeking restoration

of the Civil Suit No. 3A of 1996. The subsequent

application was also dismissed for default on December

16, 2003. The respondent No. 1, therefore, filed

another application on February 10, 2004 under Order

IX Rule 9 read with Section 151 of the Code of Civil

Procedure for setting aside the order dated December

16, 2003. On January 18, 2005 the respondent No. 1

filed an application for restoration of Civil Suit No.

3A of 1996 contending that by order dated January 10,

2005 the Division Bench of the High Court has held

that signature of late Mr. Shankar Lal was forged when

application for withdrawal of LPA was presented before

the Court and, therefore, in view of finding of the

High Court, the order dismissing the suit as withdrawn

should also be set aside. The trial court by order

dated May 5, 2005 allowed the application of the

respondent No. 1 for restoration of Civil Suit No. 3A

of 1996. The appellant, therefore, filed Civil

Revision No. 122 of 2005 before the High Court. The

High Court of Madhya Pradesh, Jabalpur, Bench at

Gwalior dismissed the same by judgment dated March 29,

2007 giving rise to the instant appeal.

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7. This Court has heard the learned counsel for the

parties at length and considered the record of the

case. The argument that the respondent No. 1 was not

entitled to file application for restoration of the

suit filed by her late father, as right to sue did not

survive in favour of the respondent No. 1 has no

merit. It is well settled that where the right to sue

is personal to the deceased, the same does not survive

for the benefit of his legal representatives. There

is no manner of doubt that late father of the

respondent No. 1 had filed suit for partition of the

joint properties. On his death right to sue survived

and the respondent No. 1 being his daughter and legal

representative was entitled to continue the suit in

view of the provisions of Hindu Succession Act. The

deceased who was a male Hindu, claimed interest in the

joint properties which are subject matter of suit for

partition. The record does not indicate that he had

executed a Will though the appellant claimed that he

had executed a Will in favour of Vijai Kumar. It may

be mentioned that the said Vijai Kumar has not applied

for being impleaded as a party to the proceedings nor

claimed interest in the properties of the deceased.

He, having died intestate, his share in the joint 8 properties shall devolve by intestate succession as

provided by Section 6 of the Hindu Succession Act,

1956. Section 8 of the said Act which deals with

general rules of succession in the case of males,

inter alia, provides that the property of a male Hindu

dying intestate shall devolve firstly upon the heirs,

being relatives specified in Class I of the Schedule

to the Act. A daughter is specified as one of the

relatives in Class I of the Schedule. Therefore,

there is no manner of doubt that the share of the

deceased plaintiff in the suit properties would

devolve upon her, if suit for partition is decreed.

Rule 3 of Order XXII CPC, inter alia, stipulates that

when a sole plaintiff dies and the right to sue

survives, the Court on an application made in that

behalf, should cause the legal representative of the

deceased plaintiff to be made a party and shall

proceed with the suit. Thus, the respondent No.1 was

entitled to be substituted in place of her deceased

father. The record shows that she came to know later

on that fraud had been committed while getting Civil

Suit No. 3A of 1996 dismissed as withdrawn. Hence,

she was entitled to file application for restoration

of the suit. Thus, it is not correct to argue that 9 the respondent No. 1 was not entitled to file

application for restoration of the suit filed by her

father for partition of the joint properties.

8. The contention that having regard to the circumstances

emerging from the record of the case the trial court

should not have restored the Civil Suit No. 3A of 1996

on file, is devoid of merits. What is important to

notice is that on similar grounds, namely, fraud

committed while getting LPA No. 32 of 1991 dismissed

as withdrawn, the said LPA was restored on file. As

mentioned earlier it was held by the High Court that

fraud was played upon the court while getting the LPA

disposed of as withdrawn and, therefore, directions

were given to the Registrar of the High Court to file

criminal proceedings against two advocates and the

appellant. The appellant never challenged the said

order at all. The whole order of restoration of LPA

was challenged before this Court, by two advocates,

but the said challenge failed when SLP No.1546 of 2005

filed by them was dismissed by this Court on April 15,

2005. Further this Court by order dated November 11,

2005 passed in SLP No.24597 of 2008 expedited the

trial at the time of upholding the order of remand.

The Trial Court, while deciding the application for 1 restoration of suit, could not have afforded to ignore

the findings recorded by the High Court while setting

aside the order dismissing the LPA No. 32 of 1991 as

withdrawn and the two orders passed by this Court.

Once it was noticed by the trial court that LPA No. 32

of 1991 was restored on file on the ground that

signature of late father of the respondent No. 1 was

forged, it was duty bound to follow the reasons given

by the High Court for restoring LPA No. 32 of 1991 on

file. This Court notices that in MJC No. 3 of 2004

the respondent No. 1 had prayed for setting aside the

order dated December 16, 2003 by which MJC No. 29 of

2003 was dismissed, but the learned Judge of trial

court while setting aside the order dated December 16,

2003 also restored MJC No. 25 of 1998 because an

application was filed praying to decide all the MJCs

together.

9. By restoration of MJC No. 25 of 1998 and MJC No. 35 of

1998 (29 of 2003), no substantive right of the

appellant is decided by the trial court. What is done

is to restore the suit, which was got dismissed as

withdrawn by fraud. The argument that the Trial Court

had acted with material irregularity while restoring

the suit when two applications which were dismissed 1 for default were also restored and, therefore, the

Revision filed by the appellant should have been

allowed, is merely stated to be rejected. The

supervisory jurisdiction of the High Court as

incorporated in Section 115 of the Code of Civil

Procedure is intended to ensure that justice is done

between the parties. The appellant who was

beneficiary of fraud played upon the Trial Court and

the High Court would not be entitled to invoke

discretionary jurisdiction of High Court under Section

115 CPC. Further in view of prayer made in the

application, all the applications filed by the

respondent No.1 were taken up for hearing together.

Under the circumstances, this Court is of the firm

opinion that the High Court was justified in not

interfering with the order by which MJC No. 25 of 1998

and MJC No. 35 of 1998 were also restored while

allowing MJC No. 3 of 2004 filed by the respondent No.

1 for setting aside order dated December 16, 2003 by

which MJC NO. 29 of 2003 was dismissed for default

10. From the record of the case this Court finds that the

suit, which was filed in the year 1955 for partition

of the joint properties, was permitted to be withdrawn

and dismissed on February 28, 1997 on the basis of so 1 called application for withdrawal filed by father of

the respondent No. 1. Before dismissing the suit as

withdrawn, the trial court had not issued any notice

to the deceased plaintiff or his heirs more

particularly when the learned advocate, who had filed

the suit for partition in the year 1955, was

substituted by another advocate without obtaining

consent from the advocate who was earlier representing

the deceased. No attempt was made by the trial court

to verify as to what prompted the original plaintiff

to withdraw the suit, more particularly, when order

dated September 30, 1991 rendered by the learned

Single Judge of the High Court remanding the matter to

the trial court for fresh decision was subject-matter

of LPA No. 32 of 1991. On the facts of the case, this

Court finds that a grave error was committed by the

trial court by dismissing the suit for partition as

withdrawn. In terms of order XXIII Rule 1 of the Code

of Civil Procedure, it is the privilege of the

plaintiff alone to withdraw the plaint at any stage of

the proceedings and the appellant being only one of

the defendants having played the fraud in getting the

suit dismissed as withdrawn, has no locus to object to

the restoration of the suit. What is relevant to 1 notice is that the late father of the respondent No. 1

did not claim any exclusive title to the properties in

himself. He claimed partition of the properties as

one of the joint owners. Initially, the suit was not

only decreed in his favour but also in favour of the

third brother. It is well settled that in a suit for

partition of the joint properties every defendant is

also in the capacity of the plaintiff and would be

entitled to decree in his favour, if it is established

that he has the share in the properties. Therefore,

the suit for partition of the joint properties, filed

by the late father of respondent No. 1, could not have

been dismissed as withdrawn without notice to another

brother, who was also entitled to share in the

properties. Taking over all view of the matter, this

Court finds that no illegality or irregularity is

committed by the High Court in dismissing the Revision

Petition filed by the appellant. The High Court has

confirmed the order of the learned Additional District

Judge, Gwalior, by which substantial justice is done

to the parties. Therefore, no case is made out by the

appellant to interfere with the order passed by the

High Court and, thus, the instant appeal is liable to

be dismissed.

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11. For the foregoing reasons the appeal fails and is

dismissed. There shall be no order as to costs.

..............................J. [B. Sudershan Reddy]

..............................J. [J.M. Panchal]

New Delhi;

December 17, 2009.