Dargah Committee, Ajmer vs Smt. Hamida Banu and Another

D.L. Mehta, J.—These two appeals arise out of the judgment and decree dt. 28th Oct., 1976 passed by the learned District Judge, Ajmer in Civil Suit No. 18/73. Plaintiff Dargah Committee instituted a suit against the defendants and prayed therein that the plaintiff Dargah Committee may be declared as the Manager and Mutwalli of the Wakf properties after the death of Mumtaz Begam. A further declaration was sought that it may be declared that the defendant 1 is not the owner of the property No. 5. Decree was also sought against the defendant No. 2 in respect of the properties Nos. I to 5. A decree for rendition of account was also sought for. In para 4 of the plaint it has been mentioned that in the light of the Government deed, Ex. 1, the line of succession is as under : --

a) After the death of Shri Mohd. Ali his eldest son was to act as Manager, Mutwalli, after his son it would devolve on his lineal discendants.

b) In absence of a son, his wife Smt. Sher Bano was to act as Manager, Mutwalli.

c) After the death of Smt. Sher Bano her daughter Smt. Mumtaz Begum alias Kallo was to be Manager, Mutwalli.

d) After the death of Smt. Mumtaz Begum her eldest son and his lineal discendants were to be manager Mutwalli.

e) In absence of a son or daughter of Mumtaz Begum the eldest son and his lineal descendants of Smt. Niaz Bano were to act as Manager Mutwalli.

f) In absence of any issue of Smt. Niaz Bano, the eldest son of Smt. Masooman Begum his lineal descendants were to act as Manager, Mutwalli.

g) In the event of the line of issues of the four executants being cut off, the Durgah of Hazarat Khwaja Saheb Moinuddin Chistec Ajmer shall manage, look after the properties as described in the deed, as Mutwalli, Manager.

Mumtaz Begum executed a registered sale deed on 5-12-1968 stating therein that she bequeathed waqf properties Nos. 4 and 5 to defendant No. I as she was their absolute owner. It was also stated in the will that there was no male member left to the Waqif after her death and, as such, defendant I will act as Mutawalli. Defendants submitted the written statement and it was prayed therein that the line of waqif has not come to an extinct and, as such Durgah Committee is having no right to file a suit. After considering the pleadings of the parties the following issues were framed : --

Whether Mumtaz Begum alias Kaloo "dies without leaving any issue as detailed in para 6 of the plaint?

Whether the line of the waqif became extinct and as such the plaintiff is entitled to act as manager and Mutwalli of wakf properties as alleged in para 10 of the plaint?

Whether Mumtaz Begum illegally willed away any of the wakf properties and was she not entitled to appoint defendant 1 as Mutwalli of Wakf properties as mentioned in para 11 of the plaint?

Whether defendants 1 and 2 have no right to remain in the properties or to convey the rent of the properties as mentioned in para 12 of the plaint?

Whether the ''title'' of the plaint is wrong and, as such, the suit is not maintainable?

Whether the suit is bad for non-joinder of the descendents of the Wakifs as alleged in para 22 of the written statement?

Whether the court-fee paid is insufficient?

Whether the plaint is not duly verified, if so, to what effect?

Is the suit barred by time?

To what relief the plaintiff is entitled?

Issue No. 2 has been decided against the plaintiff. Rest of the issues have been decided against the respondent-defendant. The Court dismissed the suit of the plaintiff on the ground that the line of descendants of the wakif has not come to extinct and, as such, the plaintiff is not entitled to act as Manager or Mutwalli of the wakf property as alleged by him in para 10 of the plaint. The court also held that Mumtaz Begum illegally willed away a part of the wakf properly and she was not entitled to appoint defendant 1 as Mutwalli of the wakf properties as mentioned in para 11 of the plaint.

Yesterday both the appeals came up for hearing. Mr. P. D. Mathur was present in the court on behalf of the defendant, on behalf of the plaintiff none was present. It was considered that the judgment will be dictated after hearing the appellant plaintiff if he appears on the next day, as such, the case was listed today. The question before this Court was how to deal with the cross-appeal which has been filed by the plaintiff Durgah Committee. The question is whether it can be dismissed on merits or whether it should be decided only by way of dismissal in default under Rule 17 of Order 41. Order 41, Rule 22 deals with the cross-objection. It provides that, any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the court below, in respect of any issue ought to have been in his favour and may also take any cross-objection) to the decree which he could have taken by way of appeal. There is no provision about the cross-appeals as every appeal is an appeal and which has to be decided according to law. It is expected from the court that the cross-appeals arising against the judgment and decree passed by the Court below should be decided simultaneously with one judgment. So that there may not be any inconsistency in the judgment of the same court. Before I take up the issue I will take into consideration the scope of the provisions of Rule 17, Order 41 as amended. Rule 17, Order 41 reads as under : --

"Where on the day fixed, or on any other day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed.

(Explanation- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits).

The explanation provides that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on merits. Appeal is to be decided according to law ordinarily on merits. However, in the absence of the appellant or the respondent it can be decided ex parte. If the appellant is absent it can be dismissed in default and if the respondent is absent ii can be decided on merits giving the right to the parties to move an application for setting aside the order dismissing in default or passing of the ex parte decree. Thus, when the appeal is dismissed in default of the plaintiff, the plaintiff gets two rights; namely, (i) to move an application for the restoration of the appeal under Rule 19, Order 41. The appeal can be restored to its original number or it can be said that the appeal can be re-admitted for hearing. The second alternative remedy is by way of second appeal. When the appeal is decided on merits there is only one remedy that the appellant shall file the second appeal on merits.

The explanation given in Rule 17 of Order 41 only limits the scope of the Rule 17 and does not take away the power of the Court to decide the appeal on merits if other provisions of the law permit it to do so. The very explanation indicates that the Sub-rule (1) of Rule 17 shall not be construed as empowering the court to dismiss the appeal on merits. The explanation was necessary as it was dealing with the matter of dismissal of appeal in default. In the instant case, the court is handicapped doubly if the appeal No. 44/77 Hamida Banu v. Durgah Committee, is considered on merits then naturally the decision of appeal No. 40/77 Durgah Committee v. Hamida Banu should also be on merits. Neither the counsel for the Durgah Committee, nor their representative appeared. In such circumstances, the court cannot be helpless. The decision of one appeal, namely, appeal No. 44/77 will have to take place on merits as the appellant and his counsel are ready for arguments. Both the appeals are arising against the same judgment and decree, as such, the cross- appeal filed by Durgah Committee will have to be decided also on merits. If I do not take this view the position will be that go on adjourning the case and there will be no end to it and the position may come in that the counsel for the appellant Durgah Committee may not appear for ever. If such contingency arises and is allowed to continue the court becomes helpless spectator and is deprived from giving justice by deciding the cross-appeal which is ripe for decision. Rule 17 is only directory in nature and it only by way of explanation declares that under Rule 17 the Court shall not decide the appeal on merits under Rule 17. However, the appeal can be decided on merits under other provisions of the law and there is no prohibition against the decision on merits of a cross-appeal in the absence of the Advocates for the appellant in one appeal. Section 107 C.P.C. reads as under : --

Section 107-- Powers of Appellate Court.

"(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial:

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

The word "power" is not synonyomous with jurisdiction but comprehends the authority to carry out such of the functions as are necessary under the law. The jurisdiction of the appellate Court is only restricted to the matter appealed against. It is not only the power but it is the duty of the appellate Court u/s 107 C.P.C. to decide the appeal on the entire facts and law. Every court trying civil cases has inherent power which is saved by Section 151 C.P.C., to take the cognizance of the questions which are impediment in the disposal of the appeals and, in fact, such powers should be exercised in order to meet the ends of justice where there may be no direct statutory provision therefor. There is no direct or even by implication any prohibition against the disposal of the appeals on merits if the appellant is absent. It is true that Section 107 is subject to the limitations and conditions referred to in Schedule I. In Schedule I there is no limitation prescribing a prohibition in the matter of disposal of the appeals on merits, if the appellant is absent. Rule 17 of Order 41 only deals with a question that if a Court does not dismiss the appeal in default and wants to decide the appeal on merits, Rule 17 will not come into play at all. It only declares that Sub-clause (1) does not empower the court under Rule 17, but it does not say that it prohibits the court from deciding the appeal on merits. Apart from that there is a Rule 33 of the Order 41 which reads as under : --

"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."

Thus, the appellate Court shall have the power to pass any decree and make any such order which ought to have been passed or made in the facts and circumstances of the case to meet the ends of justice. In the case of Kedar v. Ram Chandra, (1962 RLW 286 this Court had the occasion to discuss the scope of Rule 33. This Court held as under : --

"The language of Order 41, Rule 33 is in very wide terms, but it should not be so read as to abrogate the other provisions with regard to the filing of appeal, cross-object ion etc. The general principle is that a decree is binding on the parties to it unless it is set aside in appropriate proceedings. If a party wishes to have a decree against him modified and reversed, he must comply with certain requirements as to filing of appeals, objections and so forth. Illustration under the rule gives some class of cases in which Rule 33 will apply: for example, it applies to cases where as a result of interference in favour of the appellant, further interference with the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience, the power may be exercised. This rule enables the appellate court where its decision interferes with or modifies to or extends the decision of the lower Court, to give effect to that decision if necessary in the interest of justice by interfering with rights of those parties which are not the subject of appeal before that court.

In the present case the liability of defendants 8 and 9 was founded on the ground that as endorsees of the railway receipt i.e. as seller of goods they were bound to deliver the bags of cotton seeds to the plaintiffs. On the other hand the relief against the Union of India was sought on the ground that they as carriers of the goods failed to give delivery and were therefore, liable to pay damages. The defence set up by the Union of India was quite different from the one taken by the other defendants. Therefore, in order to pass a decree against the Union of India the case will have to be considered or the objections raised by the plaintiff and the Union of India and the findings arrived at in favour of the appellants have no bearing on the determination of these questions. It is not a case where the allowing of appeal would result in passing of inconsistent decrees or where interference with the rights of Union of India is rendered necessary because of the interference with the rights of the appellants. Nor is the relief against all the defendants indivisible. It is a case where there is a combination of several decrees against several defendants. Thus it is not a case where the court should invoke the assistance of O. 41, Rule 33 to give relief to the plaintiffs when they did not care to file any appeal on the dismissal of their suit against Union of India."

The language of Order 41. Rule 33 is in a very wide terms. The Legislature in its wisdom has expressed Rule 33 in wide terms to meet such contingeneies where the law is silent. The cross-appeal should be decided simultaneously by one judgment with the appeal No. 44 of 1977, Hamida Banu v. Durgah Committee.

Mr. P. D. Mathur, counsel for Hamida Banu is present today and he was present. He was representing the cross-appeal. The Court should not sit idle and adjourn the case because the counsel for the appellant is not vigilant and he is not appearing in the court. The decision of one appeal leads the decision of the other appeal also as the appeal of the Hamida Bano cannot be decided without dealing with the merits and demerits of the judgment and decree. That judgment will also affect the merits and demerits of the case of Durgah Committee. Naturally the court will have to decide the appeal on merits in the absence of counsel for the opposite party and the court in exercise of the powers conferred u/s 107 read with Section 151 read with Rule 33 of Order 41 can decide the cross-appeal on merits even in the absence of the appellant Durgah Committee or its counsel.

While deciding issue No. 2, even the plaintiffs witnesses are admitting that the sons of Masuman Bibi, namely, Chhagga, Pappu and others are alive. He also admits that Niyaz Bano had also children but they are out of Ajmer. There is ample evidence on the point that the lineal descendants of Masuman Begum are still alive. Even the appellant Durgah Committee in para 3 of their memo has admitted this fact by implication that the legal representatives are alive but they have migrated to Pakistan. This fact has not been proved by them. Apart from that there are other lineal descendants also. Durgah Committee comes into play only when there is no lineal descendant and they get the right under Clause (g). Here the position is that the lineal descendants are alive. At present Durgah Committee does not get any right. As far as the cross-appeal filed by Hamida Banu is concerned, it will not be out of place here to mention that the lineal descendants are mutwallis and they are not the owners. The will cannot be executed and no one can be declared as owner of the property under a will. Mutawillis will act as Muttawailis and they will get their right under the Wakf Deed, Ex. 1, which was executed in the year 1935. The property shall be needed for the benefit of the beneficiaries and it cannot be owned by any one in his personal capacity. I do not also find any force in the submission made by Shri Mathur. The appeal filed by Hamida Bano is also rejected. The will may not be valid for a property which are not under the Wakf if it is so I am not deciding this question as it is not necessary to decide this question.

In the result, both the appeals are dismissed. The judgment and decree of the Court below are maintainable. No order as to costs.