Vinay Sah vs Anshu Sharma & Another

Sharad Kumar Sharma, J

This is defendant's second appeal, which has arisen out of a judgment and decree as rendered by the Civil Court in Civil Suit No. 23 of 2014 'Smt. Anshu Sharma vs. Sri Gopal Dutt Sharma & Another', by virtue of which the decree has been rendered by the Trial Court on 31.01.2018, and as a consequence thereto, the Suit for the relief of partition of half of the share of the property in question as detailed in the suit, was decreed in favour of the plaintiff to the Suit.

Subsequently, the said judgment dated 31.01.2018 was put to challenge in an Appeal by the defendant (appellant herein). The District Judge of Appellate Court in Civil Appeal No. 54 of 2018 'Sri Vinay Sah vs. Smt. Anshu Sharma & Another' had dismissed the Civil Appeal by the judgment dated 13.05.2019 impugned in the second appeal, and as a consequence thereto, the Appeal was dismissed and thereby affirming the judgment and decree dated 31.01.2018. Hence, the second appeal is concluded by concurrent findings of facts.

Learned counsel for the appellant had pressed in two major grounds for giving a challenge to the impugned orders in question. The fact of the matter as it emanates from records is that the respondent no. 2, who was defendant no. 2 in the Suit in question, which was preferred by respondent no. 1 herein, the respondent no. 1 on institution of the Suit on 01.05.2014, had sought a relief in relation to the property, which was more particularly described in paragraph 1 of the plaint, which is quoted hereunder:

"1. यह कि वादिनी के पिता स्व0 नारायण दत्त शर्मा एक किता मकान वाके हल्द्वानी मल्ली तहसील हल्द्वानी जनपद नैनीताल अन्दर हदूद नगर पालिका-कम-काठगोदाम, भवन संख्या-9-217 पैमाईशी उत्तर से दक्षिण - 65 फिट पूरब से पश्चिम 31 फिट यानि 2015 वर्ग फिट तदनुसार 187.26 वर्ग मी0, पश्चिम में- श्याम लाल का मकान। उत्तर में- गली नगर पालिका समतायोगाश्रम। दक्षिण में - श्रीमती सरोज देवी का मकान है, के मालिक व स्वामी चले आये जिनका दिनांक-29.10.95 को स्वर्गवास हो चुका है।"

In relation to the property in question she has instituted the Suit principally for seeking a relief for a decree of partition of the property dividing her half share and secondly she has sought a relief by way of decree with regards to the setting aside of the sale deed dated 23.02.2013, which has been detailed in paragraph 5 of the Suit in question. As far the relief sought for in the Suit for declaring the settlement of the share with the defendant in the Suit based on the sale deed, the said relief was renounced by the plaintiff and the same was abandoned by her. The Suit proceeded and the defendant (appellant herein) after seeking several dates before the Court below, as would be apparent from the order sheet which was produced before this Court, had filed his written statement, which was later amended too now pleadings were introduced, and as a consequence to the filing of the written statement, the learned Trial Court has framed as many as six issues by an order dated 07.01.2016, which are quoted hereunder:

"1. क्या वादिनी का वादग्रस्त सम्पत्ति में बतौर उत्तराधिकारी आधा हिस्सा है?

क्या प्रश्नगत विक्रय पत्र दिनांक 23.02.2013 वादग्रस्त सम्पत्ति में वादिनी के आधे भाग, यदि कोई होता है, की सीमा तक शून्य व अप्रभावी है? प्रभाव।

क्या वाद का मूल्यांकन कम किया गया है?

क्या अपर्याप्त न्यायालय शुल्क अदा किया गया है?

क्या वाद विशिष्ट अनुतोष अधिनियम के प्राविधानों से बाधित है?

अनुतोष।"

As far as the issue nos. 3, 4 and 5 are concerned, they were decided by the learned Trial Court after hearing the parties concerned vide its order dated 27.01.2016, which has attained its finality and the issue pertaining to the maintainability of the Suit on account of the bar, which was purported to be under the provisions of Section 34 of the Specific Performance Act was decided by the learned Trial Court as against the present defendant holding thereof that the Suit is not barred under the provisions of Specific Relief Act. Now the question after decision dated 27.01.2016, which remain confined to be decided by the Trial Court was in relation to issue nos. 1 & 2, which was to the effect as to whether the plaintiff was entitled to have half of the share of the property on the ground of succession. The second issue, which was pressed in before the Trial Court was with regards to the impact of the sale deed dated 23.02.2013, and to the effect as to whether in pursuance to the said sale deed irrespective of the right, which has been being claimed to be created by succession, whether the plaintiff would be entitled for getting half of the share of the property in pursuance to the sale deed, which has been sought to be questioned by relief 2, as sought for in the Suit. But, subsequently since when the Suit was pending consideration, the plaintiff had abandoned the relief no. 2, as such the finding on issue no. 2 in relation to the effect of sale deed dated 23.02.2013, becomes a nonest exercise for the purposes of adjudication inter se rights in relation to the half share of the property, now on the ground of succession, which was the only issue which was left to be decided by the Trial Court based on the issues which were framed on 07.01.2016.

The Suit proceeded and the learned Trial Court while consolidating the issue nos. 1 and 2, to which we would be primarily concerned in the present second appeal has decided issue nos. 1 & 2 together on the ground that in accordance with the pleading, which has been raised in the Suit in relation to the claim of half of the share, the Trial Court had recorded a categoric finding that the defendant had at no point of time in his pleading had ever raised any objection pertaining to the claim of partition of the property to the extent of half of the share as the plaintiff and defendant no. 1 happens to be the real brother and sister, who were claiming their rights by virtue of succession.

Considering the pleading to the effect that the plaintiff had not ever abandoned her claim with regards to the settlement of her right in relation to the partition of half of the holding over the property, which has been left by her predecessor father, thus, the learned Trial Court while deciding the issue no. 1 had held that since the plaintiff and defendant being real brother and sisters, they would be entitled for getting the settlement of their rights to the extent of half of the share of the property, which ultimately devolved upon the plaintiff, by virtue of succession.

As far as the rest of the finding pertaining to issue no. 2 to 6 are concerned, as already pointed out earlier that since the said issue has already been decided earlier, the learned Trial Court did not consider it necessary to deal with issue no. 2 on account of the abandonment of the claim of relief of two, by the plaintiff, which the Trial Court has held that since the plaintiff being the dominus litus she has got every right to withdraw the relief, which she has sought before the Court below at any point of time in relation to the subject matter of the property in question.

The said judgment as rendered by the Trial Court was put to challenge in the Appeal and the Appellate Court too while exercising its powers under Order 41 Rule 31 had framed almost an identical point of determination as that which was framed by the Trial Court and the Appellate Court too after considering the oral testimony of the plaintiff, and the defendant, who has recorded her statement as PW1 and after considering the document, i.e. paper no. 9ga/2-25 dated 30.12.1994, and after considering the propriety of the sale deed paper no. 9ga/26 dated 23.02.2013 the Appellate Court too had concurrently recorded a finding to the effect that the plaintiff would be entitled for half of share of the property in question on the basis of suceession.

Principally the argument, which was initiated by the appellant's counsel on which present second appeal, had been confined is to the non-compliance of the provisions contained under Order 17 Rule 2 and 3, which relates to adjournments, which are quoted hereunder:

"(2) Costs of adjournment- In every such case the Court shall fix a day for the further hearing of the suit and may make such order as it thinks fit with respect to the costs occasioned by the adjournment :

[Provided that,-

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another Court, shall not be, a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]

Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,-

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is, absent, proceed under rule 2]."

The contention of the defendant/appellant was that when he was not putting an appearance on a specific date before the Court below then the Court below ought to have applied the provisions of Order 17 Rule 2 & 3 in its letter and spirit as per the provisions contained under Order 17 Rule 2 & 3, which contemplates that in an absence of the parties to the proceedings the same has to be decided in the light of the provisions contained under Order 9, what he intends to submit that in the absence of his participation in the proceedings before the Court below on particular dates, it was incumbent on part of the Court below to have directed the proceedings to have continued under Order 9 Rule 6(a). The provisions contained under Order 9 Rule 6(a) are quoted hereunder:

"Procedure where only plaintiff appears:

Where the plaintiff appears and the defendant does not appear on the date of hearing of the suit, then-(a) if it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte; "

It has been contemplated by the defendant/appellant in his argument that when the summons have been served upon the defendant to the Suit and the defendant had not put in appearance or after appearance has not contested the proceedings diligently then the Court 'may' pass an order to proceed with the Suit ex parte. The term used 'may' in Order 6 Rule 2A has got wider significance in the present case because in accordance with the order sheet, which has been produced before this Court by the defendant/appellant himself, it rather shows that he had after putting in appearance before the Court below had been consistently seeking adjournments in contravention to the provisions and limitations of Order 17, for filing the written statement, despite of the fact that the same was opposed by the plaintiff and ultimately the written statement was filed by the defendant/appellant at a belated stage on 19.02.2016, but despite of having filed the written statement still he has chosen not to contest the proceedings and absented himself from the proceedings before the Court. Consequently, the Suit proceeded and it was decided by the Court of Civil Judge, Senior Division, Haldwani, by the judgment dated 31.01.2018, holding thereof that the plaintiffs would be entitled for half of the share of the property by virtue of the succession and hence, a direction was issued for framing of the preliminary decree.

The argument of the appellant's counsel is that if he has at all not presented himself before the learned Trial Court and if he had shown any dereliction in contesting to proceedings then the Trial Court was bound to comply with the provisions contained under Order 17 Rule 2 and Order 17 Rule 3, which have been quoted above.

If we precisely go through the provisions contained under Order 17 Rule 2 & 3, it is absolutely a procedural power, which has been vested with the Trial Court to proceed with the Suit in the absence of the party to the proceedings. It is not a substantive provision, which is creating any right in relation to the parties to the proceedings who are in contest of the proceedings because it has left it open with the Trial Court to take a call that if the party does not put in appearance or fails to appear despite of notice, the Court may proceed to dispose of the Suit in any of the modes as contemplated under Order 9. Similarly, Rule 3 of Order 17 also contemplates that when the parties fails to adduce the evidence or to cause an attendance of his witness or to perform any other act, which was necessary in the progress of the Suit, the Trial Court could decide the Suit forthwith. The legislature itself had made the provisions as procedural in nature, as it regulates the manner in which the Court would proceed in the given circumstances.

As per the amendment, which was made by the Allahabad High Court in Rule 3 of Order 17, which provides that by way of an insertion of word 'where' in Rule 3, the reference of the use of word 'where' in the provisions contained under Rule 2, it gives an extra leverage to the Trial Court to proceed with the Suit even in the absence of the parties and to proceed to decide it on merits of the case.

Having said so, this Court cannot avoid to make reference to the provisions contained under Order 9 Rule 6(a) on which the reliance has been placed by the learned counsel for the appellant to the effect that it was incumbent on the Court, that when the defendant was not participating in the proceedings, the Court was bound to pass an order to proceed ex parte and thereafter only the Suit has been decided by the impugned judgment dated 23.05.2018.

The provisions of Order 17 Rule 2 & 3 to be read with Order 9 Rule 6(a) has to be read harmoniously because Order 9 Rule 2 gives a leverage to the Court to proceed to decide the Suit on its merits in the absence of the parties because this Court is of the view that in view of the provisions contained under Order 9 Rule 6(a) to be read Order 17 Rule 2 & 3 of Code of Civil Procedure, the choice of participation in the proceedings cannot be left exclusively at the choice of the parties to a proceedings. Law has to contemplate that in a situation where making oneself absent in participating the proceedings can be left at the choice of a party, or to be used as a weapon to linger on the proceedings. The only exception, which has been carved out under Order 17 Rule 2 is to the effect that it has to be in consonance to the provisions contained under Order 9 of the Code of Civil Procedure. The reference to Order 9 and in particular Order 9 Rule 6(a), it is absolutely the prerogative of the Court that the Court may proceed to decide the Suit ex parte.

Learned counsel for the appellant has submitted that being aggrieved against the judgment dated 31.01.2018 when he has preferred an Appeal before the Appellate Court on 13.03.2018, the learned counsel for the appellant has drawn the attention of this Court to the contents of paragraph 6 & 7 of the memorandum of appeal, which refers to the non-compliance of the provisions contained under Order 17 Rule 3, in that eventuality, this court is bound to consider as to be irrespective of the fact that the pleading was raised in relation to the implications of Order 17 Rule 2 & 3, whether that was at all pressed into consideration in the arguments before the learned Appellate Court at the stage when the Appellate Court was exercising its powers under Order 41 Rule 31 for framing a point of determination. Though while considering the argument, which has been extended and dealt by the Appellate Court, it does not remark or observe that at any stage the appellant has raised any plea pertaining to Order 17 Rule 2, but in para 11 of the appellate courts judgment it shows that if at all the argument which was extended by the appellant pertaining to the implications of Order 17 Rule 2 was taken into consideration by the Appellate Court, but yet again what is significant to be pointed out is that since the implications of Order 17 Rule 2 & 3 were to be considered by the Appellate Court at the time when the Appellate Court was framing the point of determination under Order 41 Rule 31, the same was not pressed into by the appellant nor does it finds as to be one of the points of determination before the Appellate Court. Hence, for the reasons assigned in the aforesaid paragraphs this question cannot be treated to be all the substantial question effecting the merits of the matters.

Consequently, the Appellate Court too by the judgment impugned while deciding the issue nos. 1 & 2 pertaining to the rights, which was flowing to the plaintiff as a consequence of a right of succession has concurred with the finding of the Trial Court and has held that the plaintiff would be entitled for half of the share of the assets of her predecessor and has dismissed the Appeal by the impugned judgment dated 13.03.2018.

Learned counsel for the appellant has also sought to press in another argument to the effect of the bar, which was being created in view of the provisions contained under Order 2 Rule 2, the argument was on the pretext, which would be having the implications, which will flow from the abandonment of relief no. 2 by the plaintiff in the Suit in question.

This court is of the view that for the purposes of determination of the share, which was flowing from the predecessors of the parties to the proceedings by way of succession, the challenge to a sale deed for the settlement of a right by succession becomes an irrelevant factor and that too the principals of Order 2 Rule 2 would not be attracted in the instant case at this stage for the reason that had there being a claim, which was been raised by the plaintiff based on the sale deed the relief, which abandoned under Order 2 Rule 2 and that was not pressed into then the plaintiff would be barred to raise a plea in relation thereto in any subsequent proceedings, which in the instant case cannot be said to be attracted for the reason that even after the abandonment of the relief 2 by the plaintiff's right/claim in relation to the sale deed dated 22.03.2013, she had not instituted any proceedings or claiming her right in relation to the subject matter, i.e. the property in dispute, on the basis of a right, which was emanating from the sale deed dated 23.02.2013, since the claim and its determination was exclusively based on succession. Order 2 Rule 2 would have come into play only when she was at a subsequent stage in any other independent proceedings was trying to press for the relief, which she has been otherwise voluntarily abandoned in the Suit in question that too if claim was raised on that basis between the same set of parties, as it is in the instant case. Thus, relief one as claimed for partition based on the rights of succession, which flows from law of inheritance has no nexus to relief two, which was abandoned by the plaintiff.

Thus, this Court is of the view that the finding pertaining to the issue no. 1, which has been recorded by the Courts below with regards to the settlement of half of the share claimed by the plaintiff on the basis of succession, there is a concurrent finding of fact, which has been recorded by the Courts below, which does not call for any interference by this Court while exercising its powers under Section 200 of the Code of Civil Procedure. As Court is of the view that there involves no substantial question of law, which calls for consideration by this Court.

Consequently, the Appeal is dismissed.

However, there would be no order as to cost.