Jagmohan Singh and another vs Sat Parkash Goyal and another

Impugned in the present second appeal against the order is the order dated 12.3.2015 passed by learned Additional District Judge Ludhiana whereby

an application filed by the present appellants for permission to file third party appeal against the ex parte judgment and decree dated 20.5.2013 passed

by learned Additional Civil Judge (Sr.Divn.) Ludhiana was dismissed and consequently the appeal was also dismissed.

It is necessary to go into the background of the case. It comes out that Sat Parkash Goyal filed a suit for declaration against his brother Megh Raj to

the effect that he is owner in joint possession to the extent of 1/4th share in the property situated in Ludhiana and owner in possession of property at

Mumbai as detailed in the plaint. He has also sought injunction against him. The suit was instituted on 14.5.2003. On being put to the notice,

defendants put in appearance and filed written statement putting forward his side of the story. However, after framing of the issues, the defendants

skipped from the proceedings and were proceeded against ex parte on 7.11.2007. Consequently, after recording ex parte evidence, the suit filed by the

plaintiff was decreed.

It also comes out that the defendant vide sale deed dated 9.3.2006 sold his Ludhiana property to N.S.Bhangu and Satnam Singh, who further sold the

same vide two sale deeds dated 10.10.2012 and 14.5.2013 to the present appellants Jagmohan Singh and Arun Kumar. The present appellants

thereafter preferred an appeal against judgment and decree dated 2.7.2013 i.e. within limitation. They also filed application for permission to file

appeal being aggrieved persons. The learned Additional District Judge after hearing both the parties, dismissed the said application and consequently,

the appeal was also dismissed.

I have heard learned counsel for the parties and have gone through the case file carefully.

The law question framed by this Court on January 17, 2018 is as under:

“Whether a person, who is not party to the suit before the lower court can maintain an appeal if so, on which grounds?â€​

It comes out that under Section 96 of the Code of Civil Procedure, 1908 the right to file appeal against judgment and decree of the trial Court is given.

Similarly, in Section 100 of CPC 1908, right to file second appeal is given. Right of second appeal is also covered by Section 41 of the Punjab Courts

Act, 1918. However, the said Sections are silent as to who can prefer an appeal. Normally a person, who is party to the suit has undoubtedly right to

file an appeal. Now the question is as to when a person, who though not party to the suit but is adversely affected by the judgment and decree can

maintain an appeal? The issue was examined by Hon'ble Supreme Court of India in Hardevinder Singh Vs. Paramjit Singh and others (2013) 9

Supreme Court cases 261 wherein the Apex Court observed as under.

“Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original decree or from a

decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and

decree prejudicially affects a person, needless to emphasise, he can prefer an appeal. In this context, a passage from

Jatan Kumar Golcha v. Golcha Properties (P) Ltd. is worth noting:

(SCC p.575, para 3)

“3..... It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should

be granted if he would be prejudicially affected by the judgment.â€​

Therefore, the Apex Court laid down that if a person is prejudicially or adversely affected by the decree, he can maintain an appeal.

The said views were followed by the Kerala High Court in Ramchandran Potti Versus Thankam 2005(1) RCR (Civil) 159.

Now this Court has to examine as to whether the appellants are prejudicially or adversely affected by the decree or not? The facts stated above

clearly state that it was a litigation between the two brothers.

The civil suit was initially contested by the defendant, however, during the pendency of the suit on 9.3.2006, he sold the disputed property to

N.S.Bhangu and Satnam Singh vide registered sale deed. The suit was still continued before the trial Court when N.S.Bhangu and Satnam Singh also

sold the said property vide two sale deeds dated 1.10.2012 and 14.5.2013 to the present appellants Jagmohan Singh and Arun Kumar. Therefore, qua

the Ludhiana property, the present appellant stepped into the shoes of Megh Raj defendant. The rule of lis pendens will apply to them and judgment

and decree passed in this case will be binding on them. It also comes out that later on defendant lost interest in the proceedings before the trial Court

and was proceeded against ex parte on 7.11.2007. Now the present appellants being successors-in-interest, are entitled to prosecute or defend the

case on their behalf and in my view, are prejudicially and adversely affected by the judgment and decree of the trial Court dated 20.5.2013.

The respondent has argued that facts of the said case are different. In the said case, no relief was claimed against defendant No.5 in the appeal as

plaintiff and other defendants effected compromise, therefore, it was held that defendant No.5 was adversely affected by the decree and has a right

to maintain appeal. There can be numerous instances where the person is adversely affected by the judgment and decree. The purchaser during the

pendency of the suit, is one of the person, who is adversely affected by the decree and therefore, when the defendant who was original owner, is not

challenging the decree, having lost interest in the case, the subsequent purchasers who purchased the property or part thereof during the pendency of

the suit, can maintain an appeal against the judgment and decree. They could file an application for permission to file the appeal. In such

circumstances, such application should have been allowed and appeal should be heard and decided on merits.

Learned counsel for the appellants has also referred to Section 146 of the CPC, which is reproduced as under:

“146. Proceedings by or against representatives.- Save as otherwise provided by this Code or by any law for the time being in force, where any

proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or

against any person claiming under him.â€​

This Section more or less lays down same principle as laid down in Hardevinder's case (supra).

The respondent has argued that he has placed on file certain documents to show that the sale deed is a Sham transaction. I am of the view that this

aspect cannot be gone into by this Court as only limited law point referred above is to be decided. The respondent is at liberty to raise the said plea

during the hearing of the appeal and can be dealt with by the lower Appellate Court.

It being so, the present appeal is allowed and the impugned order dated 12.3.2015 passed by learned Additional District Judge, Ludhiana is set aside

and permission is granted to the present appellants to file appeal against the ex parte judgment and decree dated 20.5.2013 passed by Addl.Civil Judge

(Sr.Divn.) Ludhiana.

Consequently, the lower Appellate Court is directed to revive the appeal and hear the same on merits and dispose of the same by passing a speaking

judgment. Lower Court's record be returned immediately.

The parties are directed to appear before lower Appellate Court on 23.5.2018 at 10 A.M. Till then, further alienation of the disputed property shall

remain stayed.

Since the main case is allowed, the pending Civil Miscellaneous applications are also disposed of.