Pathlavath Bichya and Others Vs V. Hanya Naik and Others

@JUDGMENTTAG-ORDER

Hon''ble Sri Justice G. Bhavani Prasad

1. These two civil revision petitions arise out of the orders of the Court of Junior Civil Judge, Shadnagar, dated 15-12-2010 in I.A. Nos. 451 and 452 of 2010.

2. Revision petitioners 1 and 2 filed O.S. No. 219 of 2008 without naming any defendant and suing ''all concerned'' as defendants to declare them as the legal heirs of late Pathlavath Rashya and Pathlavath Bhimji claiming to be the sons of Bhimji. They claimed Rashya to have been granted a certificate of ownership u/s 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in respect of Ac. 28.27 guntas of Kondakal village, Shankarapally Gram Panchayat, Ranga Reddy District. Bhimji and Humla are claimed to be the sons of Rashya who died on 18-09-1989 intestate and Humla is stated to have died a bachelor, while Bhimji died on 02-09-1998. On the advice of Tahsildar, Shankarapally to obtain a succession certificate- from a competent Court, revision petitioners 1 and 2 claimed to have filed the suit.

3. The suit was disposed of by the judgment of the trial Court on 06-04-2009, in which it referred to ordering a paper publication in Eenadu (Telugu) district edition of Mahabubnagar, dated 31-12-2008 calling for objections from ''all concerned'' and receiving no objections from any quarter. The trial Court received the affidavit of the 2nd plaintiff in lieu of his chief-examination and marked Exs. A.1 to A.5 and after hearing the learned counsel for the plaintiffs, it considered the jurisdiction of the Court to entertain the suit and the entitlement of revision petitioners 1 and 2 herein to be declared as the legal heirs of Rashya and Bhimji. Relying on Smt. Madanamma Vs. The Singareni Colleries Co. Ltd. and Others, the trial Court felt the suit to be maintainable and it also referred to Syed Sadak Ali Khan and Others Vs. Deepthi Builders and Others, for concluding that the residence of the plaintiffs at Shadnagar makes them entitled to present the suit before the trial Court. Referring to the death certificates of Rashya and Bhimji in Exs. A.1 and A.2, the ration cards of the plaintiffs in Exs. A.4 and A.5 and the reference therein to the plaintiffs being the sons of Bhimji, the trial Court considered that it was categorically established that the plaintiffs and Pathlavath Rupli, wife of Bhimji, if alive, are to be declared as the legal heirs of Bhimji.

4. The petitioners in I.A. Nos. 451 and 452 of 2010 approached the Court to set aside the said judgment and decree of the trial Court, dated 06-04-2009 along with the petitions for condonation of delay in filing the same and the trial Court condoned the delay respectively as per the orders in I.A. Nos. 102 and 372 of 2010 on 19-10-2010. Thereafter, after dismissing I.A. No. 371 of 2010 by the plaintiffs under Rule 32 of the Civil Rules of Practice for permission to be represented by a general power of attorney holder, by orders dated 15-12-2010, the trial Court considered I.A. Nos. 451 and 452 of 2010 and passed the impugned orders setting aside the ex parte decree and posting the suit further to check the impleading petitions filed by the petitioners therein, in the main suit.

5. The dismissal of I.A. No. 371 of 2010 was on the ground that the general power of attorney holder L. Jaya Reddy was not given any authority under the said document styled as an agreement of sale-cum-general power of attorney with possession, dated 09-07-2008, to represent the plaintiffs in any Court of law or to prosecute any legal proceedings. The power of attorney was construed to be dealing with only transfer of property and hence, the request for permission under Rule 32(1) of the Civil Rules of Practice was negatived.

6. However in condoning the delay in filing I.A. Nos. 451 and 452 of 2010 by orders in I.A. Nos. 102 and 372 of 2010 on 19-10-2010, the trial Court noted that the petitioners in both the applications are setting up rival claims independently in respect of the same subject matter and that Courts should not go into the merits of the claims while considering condonation of delay. The Trial Court also observed that the alleged purchasers from the original owners claimed the plaintiffs to be not successors of Rashya and hence, construed the grounds for the delay liberally and condoned the same.

7. In the impugned orders, the trial Court noted that there was no defendant in the suit filed against ''all concerned'' and the rival claims set up by the petitioners sought to be impleaded, can be decided only by conducting a regular enquiry. The trial Court considered it fit to provide an opportunity to every claimant to prove their respective contentions and considered it unsafe to throw out any party without giving a fair opportunity. Though the petitioners were not the defendants in the main suit, the trial Court considered the relief sought to be in rem and every person, who got any interest in the subject matter, to have a right to challenge and seek to set aside the ex parte decree. The trial Court also noted the orders of this Court in C.R.P. Nos. 4778 and 4867 of 2008 to be relevant in this regard to consider the suit on merits. The trial Court exercised its judicial discretion to set aside the ex parte decree in the complex matter with several legal aspects.

8. After filing of the revision petitions, the 2nd revision petitioner died and his legal representatives are brought on record as revision petitioners 3 to 6 in both the cases.

9. The revision petitioners contended that after dismissal of I.A. No. 371 of 2010 under Rule 32 of the Civil Rules of Practice, the plaintiffs were not given any opportunity to file any counters in LA. Nos. 451 and 452 of 2010, but the trial Court erroneously considered the counter filed by the general power of attorney holder. The trial Court was also claimed to be in error in disposing of all the three applications on the same day and the absence of any prima facie evidence for the applicants about any purchase from the legal heirs of Rashya should have been taken into account. The third parties have no say in the matter of succession to Rashya and C.R.P. No. 4778 of 2008 has no retrospective effect against the decrees which have become final. The third parties, without any interest in the subject matter, should not have been permitted to disturb the decree and hence, the revision petitioners desired the impugned orders to be reversed.

10. Heard Sri C.V. Mohan Reddy, learned senior counsel for the revision petitioners and Sri E. Madan Mohan Rao and Sri C. Srinivas, learned counsel for the respondents in C.R.P. Nos. 6046 and 6101 of 2010 respectively.

11. The point for consideration is whether the impugned orders are susceptible for interference in revision ?

12. Point:

The suit in O.S. No. 219 of 2008 was filed under Order VII Rule 1 read with Section 26 of the Code of Civil Procedure, 1908 (for short "CPC") against ''all concerned'' as defendants only due to the requirement to obtain a succession certificate as advised by the Tahsildar concerned, but not specifying any named person to be interested adversely in respect of the legal heirship of Pathlavath Rashya or Pathlavath Bhimji or the land of Ac. 28.27 guntas at Kondakal said to be belonging to Rashya. The plaint, while claiming the succession of the plaintiffs to the property, was silent on the possession or cultivation or enjoyment of the same. The relief of declaration of status was notionally valued and the plaintiffs relied on the death certificates of Rashya and Bhimji, copy of certificate issued u/s 38E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 and original rental deed dated 03-08-2008.

13. After the suit was taken on file, a notice was published in Eenadu dated 31-12-2008 addressed to ''all concerned'' as defendants calling upon anybody/those having any claim, interest or objection to appear either in person or through their advocate with their defence on 19-01-2009, failing which the case will be heard and determined ex parte. As none appeared in response to the notice, the affidavit of examination in chief of the 2nd plaintiff was received and Exs. A.1 to A.5 were marked before the judgment decreeing the suit on 06-04-2009 was delivered in favour of the plaintiffs and the mother of the plaintiffs.

14. This notice by publication in a newspaper was under Order V Rule 20 of CPC, while the petitioners in I.A. Nos. 451 and 452 of 2010 claimed to be purchasers from the real owners in possession and enjoyment of the property. The delay in applying to have ex parte decree set aside, was condoned in I.A. Nos. 102 and 372 of 2010 on 19-10-2010 taking a liberal view of the delay in view of the rival claims set up independently in respect of the same subject matter and the orders in I.A. Nos. 102 and 372 of 2010 have obviously become final in the absence of any challenge from the plaintiffs in any manner.

15. It is only the consequential consideration of I.A. Nos. 451 and 452 of 2010 by the trial Court that is challenged in the present civil revisions.

16. In examining the legal questions that arise in these civil revision petitions, the provisions of CPC show that a civil Court has to try all civil suits unless barred when once the lis is within the territorial and monetary jurisdiction of the Court and the Court has jurisdiction over the subject matter and Order I of CPC in Rule 3 refers to who may be joined as defendants, against whom any right to relief is alleged to exist jointly, severally or in the alternative. Even Order I Rule 8 of CPC refers to numerous persons having the same interest in one suit when with the permission of the Court, one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. Order I Rule 8 of CPC specifies that whenever a permission or direction is given in this regard, the Court shall give notice of the institution of the suit to all persons so interested, either by personal service, or where it is not reasonably practicable, by public advertisement, and any person so interested can apply to the Court to be made a party to the suit. This procedure in respect of suits in a representative capacity in suing or being sued also does not appear to contemplate a suit in a vacuum against an abstract entity called ''all concerned''.

17. Order I Rule 10 of CPC further enables the Court at any stage of the proceedings, either upon an application or even suo motu to implead a person who ought to have been joined as a plaintiff or a defendant or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In Order V of CPC, Rule 1 contemplated summons to be issued to a defendant in obvious reference to an identified defendant and substituted service is permitted by Rule 20 only on avoidance of service or impracticability of service in the ordinary way, on a named defendant. Order VII Rule 1 of CPC about the particulars to be contained in the plaint requires the name, description and place of residence of the defendant, so far as they can be ascertained to be specified and the defendant''s interest and liability shall be shown by the plaint as per Rule 5 before calling upon him to answer the demand of the plaintiff. Such a specified defendant alone is referred to in Order VIII and Order IX referring to appearance of parties obviously contemplates an identified plaintiff and an identified defendant. The concept of setting aside an ex parte decree against a defendant under Order IX Rule 13 of CPC is also clearly with reference to such a named defendant.

18. The other provisions of the CPC, apart from those illustratively but not exhaustively referred to above, also clearly contemplate no suit in vacuum without a plaintiff or a defendant, unlike for example an application for a succession certificate under the Indian Succession Act, 1925, wherein notice of the application will be displayed on some conspicuous part of the Court house and also published in such other manner as the Judge thinks fit subject to any rules of the High Court including by publication in a local newspaper by way of a general notice without specifying any person, and a special notice is served only if it were considered necessary in the opinion of the Judge in respect of a particular person.

19. The pleadings as per Appendix-A of CPC clearly refer to the titles of suits to a named plaintiff and a named defendant with description and residence and even the Civil Rules of Practice and Circular Orders specify named persons under Rule 9 referring to the cause title of a plaint, as in Form No. 1. Even in respect of suits by or against numerous parties under Order I Rule 8 of CPC, Rule 12 of the Civil Rules of Practice mandates filing of an affidavit stating the number or approximate number of the parties, the places where they respectively reside, the nature and extent of their interest in the subject matter of the suit and the best means of giving notice of the institution of the suit. Sub-rule 2 of Rule 12 further specifies that the plaint shall state the defendant as representing all persons so interested and the summons to the defendant shall be in Form No. 11, which requires a specified defendant to take notice that he was sued as representing all the persons interested. A defendant also is permitted to make such an application under Rule 13 and thus, the format in which the present suit has been instituted stating ''all concerned'' to be the defendants, does not appear to be one contemplated by the CPC or the Civil Rules of Practice.

20. If so, what should be the procedure that should enable an aggrieved person to avoid any decree passed in such a suit against unnamed defendants is the next question.

21. Rash Behari Mazumdar Vs. Kasum Kumari Guha and Others, appeared to be the earliest precedent, in which it was held that invocation of inherent powers of the Court u/s 151 of CPC to make an order necessary for the ends of justice, is independent of the locus standi of the applicant. In that case, the order of attachment was requested to be vacated by a person not a party to the mortgage suit.

22. In Dulhin Suga Kuer and Another Vs. Deorani Kuer and Others, an ex parte decree was set aside on the application of a transferee subsequent to the ex parte decree and the learned Judge opined that the true test is whether the transferee is affected by the order or decree in question and the transferees were considered to be vitally interested in setting aside the ex parte decree. Of course, they were also held to be entitled to prefer an appeal.

23. More directly on the point was Santosh Choptra v. Teja Singh Sardul Singh AIR 1977 Del. 110 , wherein the question was the locus standi of a subsequent assignee of the rights of previous landlord to move an application under Order IX Rule 13 of CPC. The Delhi High Court was of the opinion that a reading of Order IX Rule 13 of CPC itself makes it clear that it is only the defendant in an action who can move an application under this provision of law and a person who is not a party, though he may be interested in the suit, is not entitled to apply under the Rule. It was stated that indeed, even a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree. The decision in Susil Chandra Guha and Another Vs. Gouri Sundari Devi and Others, was followed and the decisions in Dulhin Suga Kuer v. Deorani Kuer (4 supra) and Balaji Govinda Narain v. Hira Lal AIR 1957 (3) AP 364 were refused to be followed. The decision of High Court of Andhra Pradesh in Balaji Govinda Narain v. Hira Lal (7 supra) was rendered by a Division Bench. The Delhi High Court also refused to invoke the inherent powers u/s 151 of CPC, as the question involved was the locus standi of the applicants.

24. The Allahabad High Court taking a contrary view in Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, exhaustively dealt with the question as to whether a person not a party to the suit in which the ex parte decree was passed, had any right to make an application for setting aside the ex parte decree. The Court referred to the earlier decision in Laraiti Devi Vs. Sia Ram, wherein it was held that there is no hard and fast rule that the petitioner could not bring the correct facts to the notice of the Court concerned that fraud had been practised upon the Court and that the Court had committed patent illegality in passing the ex parte decrees, specially when the petitioner was likely to be affected by the ex parte decrees in favour of the contesting opposite parties. The Court held that it was not correct to contend that the trial Court could not exercise powers u/s 151 of CPC in such circumstances. Distinguishing some other decisions, the Court observed that there may be cases where a third person can bring correct facts to the notice of the Courts concerned and the Courts concerned are fully justified in acting upon the information received and in exercising powers u/s 151 of CPC and the party having some right was fully entitled to bring correct facts to the notice of the Courts concerned. The Allahabad High Court had also placed reliance on Rash Behari Mazumdar v. Kasum Kumari Guha (3 supra).

25. In Subahu Kumar Jain Vs. Jagdish Prasad Choudhury and Others, the view expressed by Allahabad High Court in Surajdeo v. Board of Revenue (8 supra) was dissented from, while following the earlier decision of Gauhati High Court in B.N.C.L.M. Sana v. S.R. Dev AIR 1976 Gau.7.

26. Thus, there appears to be no consistent expression of opinion by the High Courts on this aspect. But our High Court had dealt with the question in Ramader Appala Narasinga Rao Vs. Chunduru Sarada, wherein His Lordship Sri Justice Jeevan Reddy (as His Lordship then was) speaking for the Bench was dealing with a contention that once the suit has been disposed of, the Court has no jurisdiction to implead a new party and that under Order IX Rule 13 of CPC only a party to the decree can apply for setting aside the ex parte decree. The learned Judge was dealing with a situation where a final decree was not yet passed and hence, a petition under Order I Rule 10 of CPC was maintainable. However, His Lordship also dealt with the question whether a preliminary decree would be set aside at the instance of a party who has been impleaded after passing of the preliminary decree. While not expressing any final opinion on the aspect whether such a person cannot apply for setting aside the ex parte decree, the learned Judge held that the inherent powers of the Court recognized by Section 151 of CPC are wide enough to set aside the preliminary decree. Referring to Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, wherein the Supreme Court held that the provisions of the Code do not control the inherent power by limiting or otherwise affecting it and that the Court has an inherent power by virtue of its duty to do justice to the party before it, it was concluded that interests of justice would require that for a proper and complete adjudication of all the matters in controversy in the suit, the third party be impleaded and be allowed to contest the suit of the plaintiff on merits, which can be done only by setting aside the preliminary decree. The learned Judge also noted that several decisions referred to by Their Lordships are cases where the petition for impleading was allowed even after the decree was passed, so long as the application itself was made prior to the disposal of the suit.

27. Another Division Bench was dealing with a similar question in Chaganti Lakshmi Rajyan and Others Vs. Kolla Rama Rao, wherein, of course, it was observed that the plaintiff is the dominus litis and being the master of the suit, he can choose parties to the suit as well as forum. The Bench observed that he cannot normally be compelled to fight against a party whom he does not seek any relief. However, it is interesting to note that the application under Order IX Rule 13 of CPC filed by the petitioners/third parties, which was pending, was not the subject of expression of any opinion by the Bench and the Division Bench considered that it would not be proper for Their Lordships to decide the merits of the said application or the maintainability of the same. In fact, the discretion exercised by the trial Court in condoning the delay in filing the application to set aside the ex parte decree was refused to be interfered with by the Division Bench. Therefore, this decision cannot be construed as an authority for the non-maintainability of an application under Order IX Rule 13 of CPC at the instance of a third party.

28. Reliance was also placed on Parimal Vs. Veena @ Bharti, But that was a case where the question involved was the sufficiency of substituted service before the ex parte decree apart from the findings of the trial Court in respect of service of summons by process server/registered post. While the Apex Court itself recognized the need for the approach of the Court, while dealing with an application under Order IX Rule 13 of CPC, to be liberal and elastic rather than narrow and pedantic, it interfered in view of the matter not falling within the four corners of the said provision. The Apex Court was also clear that there cannot be a straitjacket formula of universal application in determining sufficient cause under Order IX Rule 13 of CPC.

29. Here, the question that is involved is not the sufficiency of substituted service under Order V Rule 20 of CPC, but whether there could have been such substituted service under Order V Rule 20 of CPC in the abstract against ''all concerned'' in a vacuum without naming any defendant. The only provision which would have enabled a general notice of a suit to all persons interested would have been Order I Rule 8 of CPC, even under which at least one defendant should be named who can represent others with the same or similar interest and Order V Rule 20 of CPC, which enables substituted service on a named defendant, could not have been contended to provide for sufficient service on ''all concerned'' in respect of the subject matter of a suit.

30. In condoning the delay in filing the petitions to set aside the ex parte decree, in I.A. Nos. 102 and 372 of 2010, the trial Court had obviously considered the reasons for not being able to approach the trial Court earlier to be disclosing the sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 and the said orders, as already stated, have become final. The only other ground on which the petitions to set aside the ex parte decree could have been resisted further, is that the petitioners were not parties to the suit before the ex parte decree. The narrow view taken in some'' decisions about a non-party being disabled from applying to have an ex parte decree set aside, cannot stand to reason as that will leave an aggrieved person affected by the ex parte decree without a remedy for no fault of his and the reasoning adopted in Surajdeo v. Board of Revenue (8 supra) appears to be in tune with the fundamental principles of judicial procedure adopted by our judicial system in ensuring that no person is condemned unheard. If a third person can bring facts/truth to the notice of the Court, the invocation of inherent powers u/s 151 of CPC beyond the specific power under Order IX Rule 13 of CPC cannot be considered unjust or impermissible. As no wrong can be left without a remedy and as a Division Bench of this Court in Chaganti Lakshmi Rajyam v. Kolla Rama Rao (14 supra) did not express itself against the maintainability and merits of such application by a third party while approving the condonation of delay in filing such an application and another Division Bench of this Court in Ramader Appala Narasinga Rao v. Chunduru Sarada (12 supra) categorically held that the inherent powers of the Court u/s 151 of CPC are wide enough to set aside such a decree, the request of the respondents in these civil revision petitions cannot be considered unsustainable.

31. The third parties also relied on the observations of a learned Judge of this Court in C.R.P. Nos. 4778 and 4867 of 2008, dated 11-09-2009, wherein His Lordship deprecated filing of suits for mere relief of declaration without any other relief and directed the trial Court to satisfy itself whether such suit accords with the relevant provisions of law. In fact, the respondents in C.R.P. No. 6046 of 2010 were the revision petitioners therein and the revision petitioners herein and the respondents in C.R.P. No. 6101 of 2010 were the respondents-proposed parties therein. But no expression of opinion is called for on the maintainability or otherwise of the suit in the present adjudication.

32. No expression of opinion is also called for on the claims of the third parties about the source of their title and possession or the absence of any connection between the predecessors of the revision petitioners and the land in question, as such questions need to be determined in the petitions for impleadment which were directed to be checked and placed before the trial Court by the impugned orders or in the main suit.

33. Another interesting aspect which needs a reference is the dismissal of LA. No. 371 of 2010 by the trial Court on the same day on which LA. Nos. 451 and 452 of 2010 are allowed referring to the counter filed by the general power of attorney holder on behalf of the revision petitioners herein while refusing permission to the same general power of attorney holder to represent the revision petitioners under Rule 32 of the Civil Rules of Practice. When such a permission had been refused in I.A. No. 371 of 2010, the counter filed by the general power of attorney holder could not have represented the pleadings of the revision petitioners. But from what has been argued before this Court, there cannot be any doubt that the contents of the said counter broadly represent the specific defence of the revision petitioners against the request of the third parties to set aside the ex parte decree. Though technically incorrect, as no factual injustice has been done by considering the counter filed by the general power of attorney holder, the irregularity need not be considered as going to the root of the matter nor can the lapse be construed as making the order null and void. The trial Court had the jurisdiction to set aside the ex parte decree and any irregularity in the exercise of it need not deter this Court from confirming the orders of the trial Court under such circumstances instead of prolonging the litigation by any order of remand of these interlocutory applications themselves.

34. The view of the trial Court that there were rival claims over the property in question, to establish which every reasonable opportunity should be given to every claimant, cannot be considered unreasonable or improper and when the claims of the third parties cannot be, ex facie, dismissed as unreal or artificial, the orders setting aside the ex parte decree can be sustained either under Order IX Rule 13 or u/s 151 of CPC, though not solely with reference to the observations of this Court in C.R.P. Nos. 4778 and 4867 of 2008. The impugned orders, therefore, cannot be interfered with.

35. Avoidance of an ex parte judgment and decree by a third party, not a party to the suit, can also be by filing an appeal with the leave of the Court or by bringing a regular suit for such reliefs on any permissible grounds available to the third party under law in such a suit. The availability of such remedies to such aggrieved and affected third parties is not seriously disputed during hearing. Hence, an application to set aside an ex parte judgment and decree under Order IX Rule 13 and/or Section 151 of CPC, an appeal with the leave of the Court and a suit for appropriate reliefs on grounds permitted under law are the alternatives open to an aggrieved third party against an ex parte judgment and decree adversely affecting his rights and interests.

36. Before parting, it should be, however, made clear that in considering the applications of the respondents in these civil revision petitions for being impleaded in the suit under Order I Rule 10 of CPC on the suit being restored to file on the ex parte decree being set aside, the trial Court will consider the rival pleadings, contentions and any material to be placed on record by the parties on their own merits in accordance with law irrespective of any observations made in its orders in I.A. Nos. 102 and 372 of 2010, I.A. No. 371 of 2010 and I.A. Nos. 451 and 452 of 2010 or any observations in this order.

37. Subject to the same, the civil revision petitions are dismissed without costs.