Jammu Ram vs Smt. Kaushalya Devi and Others

M.M. Kumar, J.—This revision petition filed u/s 115 of the Code of Civil Procedure, 1908 (for brevity, ''the Code'') challenges order dated 3.11.1999 passed by the Additional District Judge, Sirsa vide which the appeal filed by the plaintiff-respondent No. 1 challenging the order dated 5.10.1999 was accepted. In the appeal, order dated 5.10.1999 passed by the Civil Judge (Jr. Division), Sirsa was challenged by plaintiff-respondent No. 1 as her application under Order XXXIX Rules 1 and 2 of the Code seeking interim directions to the defendant-petitioner was dismissed. The Additional District Judge in the impugned order dated 3.11.1999 has directed the parties to maintain status quo regarding possession of the suit land in respect of the share belonging to plaintiff-respondent No. 1.

Brief facts of the case which led to the filing of the present revision petition and necessary to decide the controversy are that plaintiff-respondent No. 1 filed a suit for declaration to the effect that she alongwith defendant-respondents No.6 to 8 are owners in possession of the suit land and have sought annulment of revenue entries for the period after Kharif 1992 which shows the joint possession of defendant-respondent No.2 and defendant-respondents No.6 to 8. A further prayer for declaration has been made that the judgment and decree dated 29.1.1998 passed in Civil Suit No.41-C of 1993, titled Jammu Ram v. Arjan Dev and Ors.'' and appellate judgment and decree dated 10.12.1998 in Civil Appeal No.41 of 1998 and the judgment and decree dated 10.8.1999 passed in R.S.A. No.3927 of 1998 by this Court are null, void and against the principles of natural justice as those judgments have been passed without making the plaintiff-respondent No. 1 and other owners of the land as party which are alleged to be the result of collusion and fraud played on plaintiff-respondent No. 1 and defendant-respondents No. 6 to 8. Consequently, relief of permanent injunction restraining the defendant-petitioner and defendant-respondent No. 2 from interfering with the joint possession of plaintiff-respondent I and defendant-respondents No.6 to 8 as owners of the suit land or dispossessing them forcibly and illegally was also sought. Alongwith the suit, an application under Order XXXIX Rules 1 and 2 of the Code was filed and another application under Order XIV Rule 5 of the Code was also preferred. However, in the present revision petition, the challenge is only to the application filed under Order XXXIX Rules 1 and 2 of the Code. The Civil Judge dismissed the application on 5.10.1999 as he felt bound by the judgment and decree dated 29.1.1998 which was affirmed by the Additional District Judge vide his judgment and decree dated 10.12.1998 passed by this Court in R.S.A. No.3927 of 1998. He also concluded that the question of collusion and fraud raised by the plaintiff-respondent No. 1 is a matter of evidence and shall accordingly be decided. On that premise, the Civil Judge dismissed the application. However, the Additional District Judge reversed the order dated 5.10.1999 passed by the Civil Judge on the principal ground that the judgment and decree dated 29.1.1998 passed in Civil Suit No.41-C of 1993 and its subsequent reversal by the Additional District Judge vide order dated 10.12.1998 and the order of this Court dated 10.8.1999 in R.S.A. No.3927 of 1998 upholding the judgment and decree dated 10.12.1998 passed by the Additional District Judge is based on the ground that there was no sufficient evidence to prove the basic document i.e. relinquishment deed. The relinquishment deed dated 16.12.1992 is a registered document. It has further been recorded by the Additional District Judge that defendant-petitioner has not specifically denied his thumb impression over the registered relinquishment deed and there is a compromise dated 14.4.1993 between the defendant-petitioner and defendant-respondents No.6 to 8 wherein a payment of Rs. 3,54,000/- as consideration of relinquishment of possession by the defendant-petitioner was admitted. According to the terms of compromise, defendant-petitioner under-takes to return a sum of Rs. 3,54,000/- to defendant-respondent No. 6 Arjan Dev and Ors. and to get back the possession of land which he had surrendered by executing the relinquishment deed in favour of plaintiff-respondent No. 1. Defendant-petitioner did not make the payment as per terms and this document/compromise dated 14.4.1993 was never produced before the Courts in earlier litigation. Another reason which prevailed on the Appellate Court was that a judgment and decree obtained by playing fraud is nullity and non est. Moreover, the plaintiff-respondent No. 1 was not a party to the earlier litigation and hence, she was not bound by the result of the same. On the basis of aforementioned reasons, the Additional District Judge directed the parties to maintain status quo regarding possession of the suit land in respect of the share of plaintiff-respondent No. 1 till the decision of the case on merits.

1 have heard Mr. J.S, Thind, learned counsel for defendant-petitioner and Mr, L.N. Verma, learned counsel for plaintiff-respondent No. 1 and with their assistance have perused the record.

Mr. J.S. Thind has submitted that the judgment and decree dated 10.12.1998 passed by the Additional District Judge, Sirsa as upheld by this Court in R.S.A. No.3927 of 1998 cannot be ignored merely on the ground that plaintiff-respondent No.l was a necessary party to the proceedings because she is a co-sharer. According to the learned counsel, it is well settled that once some of the co-sharers are party, then they would represent the whole body of co-sharers and individual notices to all the co-sharers are not required by law. The only requirement is that there is effective representation before the Court about the rights of the co-sharers. For this proposition, the learned counsel has placed reliance on two judgments of this Court in cases of Zile Singh and Ors. v. Gopi Ram and Ors., 1991 PLJ 701 and Birda Ram Vs. Smt. Atri and Others, . He has further contended that the absence of relinquishment deed in the earlier proceedings cannot constitute the basis for annulling the judgment and decree or reaching the conclusion that the aforementioned judgment and decree was result of fraud or collusion. In any case for the purposes of deciding the application under Order XXXIX Rules 1 and 2 of the Code, the existence of judgment and decree which have been affirmed even by this Court should be sufficient for the Court to decide that application and the Appellate Court has committed a grave error in law by ignoring the same.

On the other hand, Mr. L.N. Verma, learned counsel for plaintiff-respondent No. 1 has argued that a judgment and decree obtained at the back of a co-sharer to his/her detriment cannot be binding on him/her because in such a situation some of the co-sharers could group together and with collusion can defeat the rights of another co-sharer who has not been impleaded as party. For the aforementioned submissions, reliance has been placed on a judgment of the Supreme Court in the case of Sher Singh and others Vs. Gamdoor Singh, . It has further been contended that remedy of the plaintiff-respondent in such a situation would be to seek a declaration that the judgment and decree is not binding on her and the same be declared void or set aside. Therefore, the remedy availed by the plaintiff-respondent No. 1 is warranted by law. He has further submitted that the failure to bring on record the relinquishment deed has worked to the detriment of plaintiff-respondent No. 1.

I have thoughtfully considered the respective submissions made by the learned counsel for the parties and am of the view that the order passed by the Additional District Judge deserves to be upheld as it does not suffer from any legal infirmity. It is true that a judgment and decree passed by a Court of competent jurisdiction cannot be ignored. However, if such a judgment adversely affects the interest of a party, then such a party cannot be held bound by that judgment and decree. The party who seeks annulment of such a judgment and decree may be a co-sharer, the rights of those co-sharers who were not party to the proceedings have been effectively represented and their rights have not been adversely affected. The judgment of the Supreme Court in Sher Singh''s case (supra) relied upon by the learned counsel for plaint iff-respondent No. 1 fully supports this contention. In that case, a collusive decree was suffered by one Arjan Singh on a suit filed by Sher Singh and others. In the suit for declaration, it was claimed that plaintiff Sher Singh in that suit was owner in possession to the extent of 5/6th share alongwith defendant of the suit land. This claim was admitted by Arjan Singh stating that the property was ancestral joint Hindu family property and he suffered that decree. One Gamdoor Singh a coparcener filed a suit seeking declaration that the decree suffered by the other coparceners i.e. Sher Singh alongwith others on one side and Arjan Singh on the other was a collusive decree and was not binding on him. All the three Courts upto the High Court upheld the claim of Gamdoor Singh. It is in these circumstances that the adverse affect of collusive decree on the right of Gamdoor Singh was set aside by the Courts below and the Supreme Court upheld the same. The observations of the Supreme Court with regard to absence of Gamdoor Singh being party to earlier litigation and its effect are as under:

"It is also an admitted fact that he was not a party to the earlier suit and the decree was granted without his consent. Under those circumstances, the finding that it is a collusive decree is a finding of fact based on appreciation of evidence. Under those circumstances, we do not find and substantial question of law warranting interference."

The judgment relied upon by the defendant-petitioner proceeds on the basis that there has to be effective representation with regard to interest of the co-sharers who were not parties to the proceedings. For example, in the case of Zile Singh (supra), it has been held that a co-sharer represents the body of co-sharers and hearing given to one cosharer is herring given to all. But such a presumption would be available only in the cases of absence of fraud, collusion or conflict of interest. Therefore, reliance on both the judgments in Zile Singh''s case (supra) and Birda''s case (supra) is misplaced. Moreover, the revisional jurisdiction of this Court is extremely limited and is not to be exercised in the discretionary orders under Order XXXIX Rules I and 2 of the Code passed by the Courts below. It is only in cases where there is failure of justice that such an interference may be warranted. In the case of The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, their Lordships of the Supreme Court with regard to the jurisdiction of the High Court''under Section 115 of the Code observed as under:

"In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first Appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction u/s 115 of the Civil Procedure Code. See the decisions of this Court in Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, and D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, ."

These observations have also been approved by the Supreme Court in the cases of The Municipal Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Another, ; Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, ; Terene Traders v. R.J. and Company,'''' AIR 1987 S.C. 1492 and Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd., .

For the reasons recorded above, this revision petition fails and the same is dis missed.