Rakesh Kumar Duggal vs Baldev Kumar Duggal

H.S. Brar, J.—When this appeal came up for motion hearing on 12.5.1993, the Hon''ble Single Judge of this Court issued notice of motion for 27.5.1993. Execution of the judgment and decree of the trial Court was stayed and record of the case was requisitioned through special messenger for the aforesaid date. At the time of motion hearing, after the issuance of notice of motion, Mr. A.K. Chopra, Advocate put in appearance on behalf of the respondents. On the next date of hearing i.e 27.5.1993, C.M. No. 1644C of 1993 on behalf of Smt. Sukhversha Sangar was filed under Order 1 Rule 10 and Rule 8A read with Sections 151 & 107 C.P.C. to get her impleaded as a respondent. Notice in C.M No. 1644C/93 was given to the counsel for the parties for 12.7.1993. Ultimately on 21.7.1993, the appeal was admitted and it was ordered that C.M. No. 1644C of 1993 will be disposed of with the main case.

It is pertinent to note that before the admission of the appeal on 21.7.1993, C.M. No. 2060C of 1993 was moved in this RSA i.e. R.S.A. No. 1067 of 1993 by the appellant under Order 41 Rule 2 C.P.C. for raising an additional ground. The additional ground which was sought to be raised by the applicantappellants reads as under:

"That the judgment and decree of the lower Appellate Court are vitiated for the simple reason that it failed to decide an application filed on 18.11.1991 by Smt. Sukhversha Sangar d/o late Shri Nihal Chand Duggal, wife of Shri Amarjit Sangar under Order 1 Rule 10 Civil Procedure Code. As the said Smt. Sukhversha Sangar is a necessary party her nonimpleading and non decision of the application render the impugned judgment and decree null and void. A court is bound to decide every application filed before it. Such a view was taken by this Hon''ble Court in RSA No. 742 of 1988, Jagir Kaur etc. v. Nirmal Singh, 1993(2) R.R.R. 511, decided on 6.5.1993 by Hon''ble Mr. Justice N.K. Kapoor."

Prayer of the applicantrespondent to urge the additional ground as ground No. 11A in the memorandum of appeal was allowed by an Hon''ble Judge of this Court on July 12, 1993.

When this case came up for final hearing, the learned counsel for the applicant in C.M. No. 1644C/93 urged that the application of Smt. Sukhversha Sangar for impleading her as a respondent may be allowed. As it was ordered at the time of admission of this appeal that this C.M. No. 1644C/93 will be disposed of with the main case, thus I propose to dispose of this miscellaneous application also along with the main case.

It has been stated in the miscellaneous application which is supported by an affidavit by the applicant that she is the daughter of Late Shri Nihal Chand Duggal and sister of respondent/plaintiff and appellant/defendant No. 1, and she is one of the legal heirs of late Shri Nihal Chand Duggal. The others being the respondent/plaintiff, the appellant/defendant No. 1 Smt Raj Duggal with her 3 sons named Ashu, Parveen, Sanjay (the wife and children of the predeceased sons of late Shri Narinder Kumar Duggal son of late Shri Nihal Chand Duggal, Smt. Ved Sobti, Smt. Bimla Malhotra, Smt. Kamla Setia, Miss Kumari Duggal), Smt. Sushma Sharma. The mother of the applicant died on 6.6.1989 and other sister named Smt. Krishna also died in the year 1954 much before the death of Shri Nihal Chand Duggal and Smt. Gian Devi Duggal, the father and mother of the appellant respectively. It is stated in the application that the respondent claiming abosolute and exclusive ownership of House No. 1157/21B, Chandigarh filed a suit for mandatory injunction against the appellants wherein some damages for use and occupation were also claimed. The applicant is resident of U.K. and visits India to attend family functions and also to meet the members of his family and other relations living in India. Whenever she visits India, she stays in the above mentioned house. The house in dispute, according to the applicant, was constructed by Late Shri Nihal Chand Duggal, father the applicant and parties to the appeal. The plot in dispute may allotted to the father of the applicant and whole of the construction was raised out of the funds raised by her father and that the house in dispute is not the exclusive and sole property of the respondent. The applicant has alleged in her application that she is the coowner in the house and by claiming exclusive title to the house in dispute, the respondent have cast cloud on the rights of the appellants, as the house in dispute was constructed by the father of the applicant and was a joint Hindu Family property. The applicant being the daughter of Shri Nihal Chand Duggal, has succeeded as coowner of the house in dispute.

She has then stated in her application that she filed an application on 18.11.1991 before the First Appellate Court with a prayer to implead her as a party to the suit. The notice in that application, according to her, was issued to the parties to the appeal to file replies to the same. She has further stated in the application that the First Appellate Court without passing an order on the application filed by her, has proceeded to decide the appeal. She has thus prayed in this application that being a necessary party to the controversy, her title and rights in the property in dispute are likely to be prejudiced by the decision in the appeal and she may be allowed to be impleaded as a defendantrespondent.

Reply on behalf of respondentBaldev Kumar Duggal has been filed. In the preliminary objection taken by the respondent, it is stated that this application has been filed with mala fide intention to delay the execution of the decrees of the courts below and the proceedings in connivance with the appellants, and is thus liable to be dismissed. It is then stated in the reply that the applicant is neither a necessary party nor a proper party to the suit. The rights, if any, of the applicant were not affected in any manner in the suit nor any relief is claimed against her. The suit was filed in the year 1986 and the application has been filed after more than 7 years. Thus this application is liable to be dismissed on this score alone. It is then stated that before the trial Court, the defendandappellant had taken objection regarding nonjoinder and misjoinder of the parties in the suit and pleaded that all the legal heirs of Late Shri Nihal Chand Duggal should be made parties to the suit and the trial court framed the separate issues to that effect and clearly held that all the legal heirs were not necessary parties to the suit.

It is admitted in the reply that the applicant had moved an application before the Lower Appellate Court and the Lower Appellate Court had not passed any order on her application. But it is stated in the reply that if the applicant was aggrieved against the action of the Lower Appellate Court, she could have filed revision petition or could have requested the court to pass specific orders before the final hearing/judgment. In these circumstances, it is stated that the present application is not maintainable. It is then stated that the application dated 31.10.1991 filed by the applicant before the Lower Appellate Court is signed by one Des Raj as alleged General Attorney of Mrs. Sukhversha Sangar through the counsel Shri ''Kashmira Singh, Advocate whereas the vakalatnama in favour of said Shri Kashmira Singh, Advocate is signed by Mrs. Sukhversha Sangar on the same days, i.e. 31.10.1991. On that day, according to the reply, Smt. Sukhversha Sangar was not in India and was residing in England. It is then urged in the reply that the purported signatures of Smt. Sukhversha Sangar on the vakalatnama are visibly different from her signatures on the alleged General Power of Attorney in favour of her alleged attorney Shri Des Raj. Thus according to the reply filed by the respondent, it has been alleged that the application moved by the applicant before the Lower Appellate Court was not a validly filed application and, therefore, it was liable to be ignored and the present application before this Court is also liable to be dismissed on this score alone. Various other objections have been taken in the reply but the material objection of the respondent is that she is neither a necessary party nor even a proper party to the suit.

It will be relevant to point out here that the application of the appellant in this appeal to allow him to raise an additional ground, as stated above, was already allowed by this Court vide order dated 12.7.1993. In these circumstances, the learned counsel for the appellants has also urged that the judgment and decree of the Lower Appellants Court are vitiated for the simple reason that it failed to decide the application filed on 18.11.1991 by Smt. Sukhversha Sangar daughter of Late Shri Nihal Chand Duggal wife of Shri Amarjit Sangar under Order 1 Rule 10 C.P.C and has urged that Smt Sukhversha Sangar being a necessary party, her nonimpleadment and no decision of her application by the Lower Appellate Court rendered the impugned judgment and decree under appeal as null and void. Learned counsel for the appellant has referred to the judgment of this Court rendered in Jagir Kaur and another v. Nihal Singh and another, in R.S.A No. 742 of 1988 1993(2) R.R.R. 511 : (1993(2) P.L.R. 374) and Shadi Lal and others v. Municipal Committee Rewari, 1994(2) RRR 617(P&H) : 1994(1) P.L.R. 633.

I have heard that learned counsel for the parties. It is an admitted fact that the applicant Smt. Sukhversha Sangar had filed an application on 18.11.1991 before the Lower Appellate Court but the Lower Appellate Court without deciding her application, decided the main appeal and it is further admitted that the notice in that application was issued to the parties in appeal to file replies to the same. It is further admitted that no reference has been made by the Lower Appellate Court about the application filed by Smt. Sukhversha Sangar. To my mind, the objection of the learned counsel for the appellants, Mr. Sarin is valid. It was incumbent on the part of the Lower Appellate Court to decide the application of Smt. Sukhversha Sangar before the decision of the main appeal. If the plea of the applicant that he was a necessary party to the suit was accepted, then the judgment of the Lower Appellate Court would not have been the same what has been rendered by him vide his judgment dated 20.4.1993. Learned counsel for the applicant in C.M. No. 1644C of 1993 has rightly urged that he could not file a revision neither any order was passed by the Lower Appellate Court on her application, nor was there a reference of any decision on her application requesting for being impleaded as a defendant/respondent in the suit/appeal.

At this stage, it will not be advisable for this Court to decide the application of Smt. Sukhversha Sangar as the material averments made in her application have been controverted and it has been averred in the reply filed by the respondents in the preliminary objection that even the signatures of Smt. Sukhversha Sangar on the vakalatnama (power of attorney) in favour of Shri Kashmira Singh, Advocate were not her''s as she was in England in those days.

In view of this disputed position, I restrain myself to decide this application at this stage as, according to me, it was both necessary and fair for the Lower Appellate Court to have first disposed of the application of Smt. Sukhversha Sangar before deciding the main appeal.

I do not find any other option except to set aside the judgment and decree of the courts below and remit the case back to the District Judge, Chandigarh to proceed with the case in accordance with law and decide the application of Smt. Sukhversha Sangar filed by her on 31.10.1991 before deciding the main appeal. It may further be made clear clear that both the parties shall be allowed to produce further evidence in favour or against the application filed by Smt. Sukhversha Sangar. Resultantly, the appeal is accepted on this short ground that the application of Smt. Sukhversha Sangar for impleading her as a party was not decided before the decision of the main appeal and I hereby set aside the judgment and decree of the courts below. However, I direct the District Judge, Chandigarh to decide this appeal expeditiously preferably within four months from today.

The parties through their counsel are directed to appear before the District Judge, Chandigarh on 21.8.1995. There is no order as to costs.