Sri Lal Chand v. M/S Annapurna Khandasari Sugar Mills Ltd

SRI SANJAY KUMAR S/O SURAJ PRASAD, AGED ABOUT 40 YEARS R/AT NO.1-2-412/2, DAMAGUDA (DAMANAGUDDA) HYDERABAD, ANDHRA PRADESH STATE. 7 SRI S BABU LAL JAIN S/O SESHAMAL JAIN SINCE DEAD REPRESENTED BY HIS LRS (a) SMT PADMAVATHI W/O LATE BABU LAL JAIN AGED ABOUT 60 YEARS, 3 R/AT V V NAGAR, KALLAHALLI EXTENSION, RAYDURGA, ANDHRA PRADESH STATE (b) SRI VASANTH KUMAR AGED 37 YEARS S/O LATE BABU LAL JAIN R/AT V V NAGAR, KALLAHALLI EXTENSION, RAYDURGA , ANDHRA PRADESH STATE (c) SMT INDIRA AGED 34 YEARS W/O DINESH KUMAR JAIN SILK MERCHANT NETAJI ROAD, RAYADURGA, ANDHRA PRADESH STATE ...RESPONDENTS ( BY SRI.R PRAMOD, ADVOCATE FOR R7[a-b] RESPONDENTS 2, 4 TO 6 & 7(c) SERVED & UNREPRESENTED RESPONDENTS 1 AND 3, SERVICE HELD SUFFICIENT) ***** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 4.3.2010 PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN.) MANDYA IN O.S.NO.83/93 WHICH IS PASSED IN THE ORDER SHEET, VIDE ANNEXURE-J AND ETC. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:- Heard the learned Counsel for the petitioner and the ORDER learned Counsel appearing for the respondents 7(a) and (b). Remaining respondents are served and unrepresented.

2.One Babulal Jain filed O.S.No.83/1993 before the Civil 4 Judge (Sr. Dn.) at Mandya seeking recovery of money. The suit was decreed on 17th February 1995. On 01.09.1995, the decree holder assigned all his rights in the suit to the petitioner herein Sri.Lal Chand. Misc. Petition 84/1996 was filed by the defendant Sanjay Kumar seeking to recall the decree dated 17.2.1995 since the same was an exparte decree. The Court below by its order dated

10.07.2000 allowed the miscellaneous petition and the judgment and decree dated 17.2.1995 was recalled and the said suit was restored. In the interregnum Babulal Jain died on 01.05.1998. During the pendency of the restored suit, the petitioner/applicant filed I.A.No.2 under Section 151 of CPC to permit him to prosecute the aforesaid matter on behalf deceased plaintiff and in support of the application, he has filed an affidavit stating that deceased Babulal Jain had assigned the said claim amount in the said suit in his favour and there is an assignment deed dated 01.09.1995. The Court below by its order dated

17.06.2002 while considering the said application came to the conclusion that the order dated 14.08.2000 setting aside the judgment and decree against a dead person cannot be acted upon despite of the fact that the death of the respondent 5 was not intimated by the counsel. It was of the view that the earlier judgment and decree holds good. On these findings, it held that the plaintiff's suit is not maintainable and therefore it is not necessary to go into the matter of deciding whether the applicant has the capacity to sue as an assignee of the deceased Babulal Jain. I.A.No.8 was subsequently filed by the applicant under Order 47 Rule 1 read with Section 114 of CPC seeking to review the order. By its order dated 19.08.2002, the review application was allowed and the operative portion of the order under review was modified as follows: “I.A.No.II is dismissed. The decree already obtained by deceased Babulal Jain against the opponents hold good in all respects.”

3. Aggrieved by the same, the defendant who sought the setting aside of the judgment and decree, filed M.A.No.1/2003 before the Additional District Judge, Mandya who by the order dated 1st April 2005 passed the following order: “The miscellaneous appeal is allowed. The observation made by the Court below while allowing the review application that the decree already 6 obtained by the deceased Babulal Jain against the opponent hold good in all respect is hereby set aside. It is to be noted that the miscellaneous petition has already been allowed, the decree already obtained has been set aside and the said order has not been challenged and hence, the Court below is directed to dispose of the suit in accordance with law.”

4. During the course of the proceedings in the said suit, I.A.Nos.3 to 5 were filed by the legal representatives of the deceased Babulal Jain. They sought to come on record as his legal representatives. The trial Court by its order dated 04.03.2010 held that the order passed on I.A.No.2 filed by the petitioner herein having been dismissed by the trial Court as well as the Appellate Court, there is no necessity to once again hear I.A.No.2. Hence, the plea of the applicants was rejected and the case was posted for hearing on the L.R. application filed in I.A.Nos.3 to 5.

5. The learned Counsel for the applicant/petitioner contends that I.A.No.2 filed by him has never been considered by 7 any Court and even though I.A.No.2 was sought to be considered on 17.06.2002, the Court below felt that there is no necessity to go into the matter since the order dated 14.8.2000 passed in miscellaneous petition cannot be acted upon. The order under review also is to the effect that the I.A.No.2 is dismissed and that the decree is valid. In the said review order also, there is no consideration of I.A.No.2 by the Review Court. In the appeal filed, the Appellate Court allowed the miscellaneous petition and the decree already obtained has been set aside and the said order has not been challenged and hence, the trial Court was directed to dispose off the suit in accordance with law and even the Appellate Court also failed to consider I.A.No.2 and hence interference is called for.

6. On the other hand, the learned Counsel for respondent No.7(a) and (b) contends that the first dismissal of the application is by the order dated 17.06.2002 and that the same has not been challenged. Therefore, irrespective of the fact of the grounds which I.A.No.2 has been dismissed, since the applicant have not questioned the same, they cannot be allowed 8 to contend that I.A.No.2 has not been considered. He therefore pleads that there is no error committed by the Courts below and the writ petition liable to be dismissed.

7. Heard learned Counsels and examined the records.

8. The primary order that has led to the series of applications and orders of the Courts below is the order dated

17.06.2002 purported to be passed on I.A.No.2. I.A.No.2 is an application seeking permission to prosecute the suit based on the deed of assignment dated 01.09.1995. In the process of considering the said I.A.No.2, the trial Court held at Paras 12, 13 and 14 as follows:- “12. Thus looking from any angle it is clear that the order dated 14.8.2000 setting aside the judgment and decree against the dead respondent cannot be acted upon despite of the act that the death of respondent was not intimated by the counsel appearing on his behalf. The earlier judgment and decree hold good.

13. Consequently the entire suit of the plaintiff becomes not maintainable. Therefore I feel 9 it not necessary to go into the matter of deciding whether the applicant has the capacity to sue as assignee of deceased Babulal Jain.

14. Taking into consideration the above all aspects, I hold that the application is not maintainable, since the main suit itself is not open for re-agitation. In the result I pass the following ORDER I.A.II is dismissed. The main suit is also dismissed as not maintainable.”

9. On this orders, all the subsequent applications and orders have been passed.

10. It is relevant to consider the fact that as on 01.09.1995 itself that is much prior to the death of Babulal Jain, the deed of assignment was made in favour of the applicant. Whether the deed of assignment is valid or not is for the trial Court to determine and not at this stage to hold that the judgment and decree against a dead person cannot be acted upon. Therefore in law, the deed assignment effect

01.09.1995. The subsequent death of Babulal Jain 10 though a necessary factor and even though the assignee was not made as a party to the proceedings, these are the issues that have to be determined by the trial Court. It would be improper for this Court to give a finding on the validity of the deed of assignment, the effective deed of assignment, the consequences of the death of Babulal Jain or other issues which have to be sorted out at the stage of trial. This petition is restricted to the consideration of I.A.No.2 only.

11. Further it is seen that by the order dated 17.06.2002, in effect, what the trial Court has done is that it has reversed the order dated 14.08.2000 restoring the suit. The restoration has been passed on the Miscellaneous Petition No.84/1996. There was no plea nor a request to set aside the said order. Therefore, the order of the lower Court dated 17.06.2002 holding that the order dated 14.08.2000 cannot be acted upon is ultravires and cannot be accepted.

12. The trial Court committed an error by holding that the suit is not maintainable. The question of maintainability of 11 the suit was neither pleaded nor an issue for consideration in the order dated 17.06.2002. The non-acceptance or non-enforcement of the order dated 14.08.2000 will not render the suit of the plaintiff as not maintainable. Even if the reasoning of the trial Court accepted

14.08.2000 cannot be acted upon, in that event the decree dated

17.02.1995 would naturally stand restored and capable of execution. The non acting upon the order dated 14.08.2000 cannot lead to the dismissal of the suit. After so holding, the trial Court further concluded that in view that the suit itself is not maintainable, it is not necessary to consider the application. Therefore, it is evident that I.A.No.2 was not considered on merits at all. This being the primary order on which the subsequent orders of review as well as the miscellaneous orders has been passed are not sustainable. Further more, even in the order on I.A.No.8 namely the application under order 47 Rule 1 read with Section 114 of CPC, the jurisdiction of the Court was either to allow or reject it. It did not have any jurisdiction to either consider I.A.No.2 or to further hold that the decree obtained holds good. The Appellate Court also, without appreciating the facts involved, 12 failed to interfere in the said order and further directed the trial Court to dispose off the suit. Therefore, the consideration of I.A.No.2 was not made by the Appellate Court. Under the circumstances, the consideration of I.A.No.2 is just and necessary for the disposal of the suit. The veracity of the claims made, would have to be gone into by the trial Court. The contention of the respondents that the assignment deed is invalid cannot be made a ground in this petition.

13. Under the circumstances and in view of the various orders that have been passed by the Court below which commences from the erroneous order dated 17.06.2002, I 'am of the considered view that I.A.No.2 filed by the applicant/petitioner requires to be considered by the trial Court.

14. For the aforesaid reasons, the order dated 17.06.2002 passed on I.A.No.2 in O.S.No.83/1993 by the Principal Civil Judge (Sr. Dn) Mandya is set aside. The order dated

19.08.2002 passed in Misc. Petition No.33/2002 by the Principal Civil Judge (Sr. Dn.), Mandya is set aside. The order dated 13

01.04.2005 passed in M.A.No.1/2003 by the Additional District Judge, Mandya is set aside. Since the suit has been restored, the trial court is directed to hear on I.A.No.2 filed by the petitioner/applicant herein in accordance with law. All contentions of the parties are kept open. The respondents 7(a) and (b) are at liberty to file a fresh statement of objections if necessary and to raise all contentions in order to oppose I.A.No.2. In view of the long pendency of the litigation, the trial Court shall hear and dispose off I.A.No.2 on or before 30th June 2012. Accordingly, the writ petitions are disposed off. Sd/- JUDGE Prs*