Narayanan Vazhunnavar vs Haridasan Namboodiri and Others

Varghese Kalliath, J.—This second appeal comes up before us on a reference by our learned brother Justice P. Krishnamoorthy. In the reference, His Lordship doubted as a preliminary point as to whether an assignee from the Appellant is entitled to maintain an application under Order XLI, Rule 19 of the CPC (hereinafter referred to as ''Code of Civil Procedure''). His Lordship also observed that whether Order XLIII, Rule 1A will enlarge the scope of Section 105(1) of Code of Civil Procedure. These questions, His Lordship thought, required an authoritative pronouncement by a Division Bench of this Court. So the second appeal was referred for consideration by a Division Bench.

Defendant in a suit for declaration of title and for setting aside an order of Magistrate passed u/s 145 of the CPC is the Appellant. Plaintiffs also sought for recovery of the property scheduled in the plaint.

Initially the suit was dismissed on 19th December 1977. In the suit, Defendant contended that he is a tenant and so the matter was referred to the concerned Land Tribunal. The Land Tribunal found that the tenancy claimed by the Defendant is valid. Adopting the finding of the Land Tribunal, the trial court dismissed the suit. Plaintiffs filed an appeal, A.S. No. 95/78. That appeal was remanded by the appellate court by its judgment dated 18th December 1979. By its judgment, the appellate court directed the Munsiff to consider the question of tenancy. The Munsiff, after remand, considered the question of tenancy on the evidence before him and finally found the tenancy in favour of the Defendant and dismissed the suit on 31st October 1980.

The 2nd Plaintiff filed an appeal on 18th March 1981 as A.S. No. 101/1981. The 2nd Plaintiff (1st Respondent herein) assigned his right to a stranger on 8th November 1982. That stranger is the 2nd Respondent in this appeal. After assignment, the 2nd Respondent herein who is the assignee from the 1st Respondent/Appellant in A.S. No. 101/81, wanted to prosecute the appeal. On enquiry, he came to know that the appeal was dismissed for default on 25th January 1983. The 2nd Respondent herein filed three Interlocutory Applications I.A. Nos. 193, 194 and 195 of 1983. I.A. No. 193/83 was for restoration of the appeal dismissed for default, I.A. No. 194/83 was an application under Order 22, Rule 10 of the CPC to implead the 2nd Respondent herein as supplementary additional 2nd Appellant in the appeal and I.A. No. 195/83 is an application to amend the appeal memorandum by making necessary changes in the cause title.

Appellant herein--the Defendant--filed counter-affidavits in the said Interlocutory Applications. It is contended that there is no legal provision by which the 2nd Respondent herein can prosecute the appeal or rather can restore the appeal dismissed for default and so it was contended that all the applications have to be dismissed. The lower appellate court considered the question rather elaborately both on merits and on the questions of law raised and held that the appeal can be restored and that the 2nd Respondent can be impleaded as supplemental Appellant. This decision, it is contended by the Appellant, is not in accordance with law and Counsel for the Appellant was able to persuade the learned Single Judge to refer the questions to be decided by a Division Bench.

The chief question is whether an assignee of the subject matter of the appeal from an Appellant can restore an appeal dismissed for default while assignee was not in the party array. The appeal in this case was dismissed on 25th January 1983 on the ground that there was no representation by Counsel or Appellant. The 2nd Respondent herein got assignment of the right of the Appellant in the lower court on 8th November 1982. Of course, an application for restoration can be filed only under Order 41, Rule 19 of Code of Civil Procedure. Order 41, Rule 19 of CPC reads thus:

Where an appeal is dismissed Under Rule 11, Sub-rule (2), or Rule 17 or Rule 18, the Appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when, the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

Counsel for the Appellant submitted that the appeal cannot be readmitted at the instance of the 2nd Respondent herein for the short ground that Order 41, Rule 19 of the CPC provides that "the Appellant may apply to the Appellate Court for the re-admission...." and on the ground that "he was prevented by any sufficient cause from appearing when the appeal was called". Counsel emphasised the word ''he'' in Order 41, Rule 19 of CPC and submitted that what is required for restoration of the appeal dismissed for default is a fact that ''he'' the Appellant was prevented by sufficient cause. He submitted that the application has been filed not by ''he'' the Appellant, but by the assignee of the ''he'' the Appellant and Order 41, Rule 19 of CPC does not allow an assignee from an Appellant to invoke the provisions contained in Order 41, Rule 19 of Code of Civil Procedure.

Counsel submitted that this position has been made clear in the decision reported in Narain Chandra Khan Vs. Jagannath Acharya Goswami and Others, . A Division Bench of Patna High Court held that the provisions of Order 41, Rule 19 of the CPC contemplate that the applicant who wants his appeal to be restored has to prove, first, that the appeal was his, and secondly, that he was prevented by sufficient cause from appearing when his appeal was called on for hearing. The Division Bench also said that a transferee of a certain interest which was the subject-matter of a litigation between his vendor and one I had purchased the rights in respect of that subject-matter of the appeal after the disposal of the suit, cannot file an application for restoration of the appeal. Of course a reference to Section 146 of CPC is seen adverted to in that judgment. It is stated thus:

It is argued strenuously on behalf of the appellant that the learned District Judge had no jurisdiction to dismiss the application for restoration, because by virtue of the provisions of Section 146, Code of Civil Procedure, the Appellant had a right to do what his vendor could have done, namely in the present case to file an application for restoration under Order 41, Rule 19.

The above contention was. negatived by the Division Bench stating that the circumstances are entirely different and so the facts disclosed in the case will not permit the court to invoke the power u/s 146 of the Code of Civil Procedure. The court said that Order 41 Rule 19 of the CPC contemplates that the applicant who wants his appeal to be restored has to prove, first that the appeal was his and secondly that he was prevented by sufficient, cause from appearing when his appeal was called on for hearing. Further, it is said in the judgment that the transferee-Appellant cannot be heard to say that there was sufficient cause for the non-appearance of another person who was in full seisin of his own litigation in his own right and that if the proposition is accepted, it requires to be stated that the interest of the person, through whom he claims relying upon Section 146 of Code of Civil Procedure, is identical with the interest of the Appellant who filed the appeal and that his appeal has to be restored.

We do not think that a careful analysis of the content, scope and width of Section 146 of CPC read with Order 41 Rule 19 of CPC would justify the conclusion of the decision reported in Narain Chandra Khan Vs. Jagannath Acharya Goswami and Others, . We respectfully disagree. Section 146 of CPC reads thus:

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.

Generally speaking all the provisions of the CPC are intended to advance the cause of justice. By the rules made in the Code essentially procedural in character, a logical and reasonable procedure is prescribed by the Code for the guidance of the court to achieve the ultimate aim of the functioning of the court, viz., to promote justice. So it is not advisable to interpret the rules and provisions of the CPC in such restricted manner which would ultimately result in a predicament where the court will be deprived of the power to do justice in the cause.

Section 146 of CPC should receive a benign and beneficial interpretation. It should supplement the rules and try to iron out the creases which would cause difficulties for the court to act fairly and reasonably. It is clear that the purpose and object of Section 146 of CPC should not allow to adopt an interpretation which would whitle down the scope and content of the provision. We are of opinion that me prime devoir of the Section is vide enough to entitle a person to continue a proceeding started by another under whom he claims. The decision reported in Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, is a landmark decision on this provision. The Supreme Court sketched the content and scope of the Section when it was considering the application of the Section in an appeal thus:

We are disposed to construe Section 146 narrowly in the manner contended for by Counsel for the first Respondent. That Section was introduced for the first time in the Code of Civil Procedure, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense.

This decision was followed by this Court in 1971 KLT 296 (Mamu v. Kunhamina Umma) and in several other decisions of the other High Courts.

It is possible to hold that a stranger who claims right in the suit property by virtue of an assignment from a party to the suit can legitimately continue the proceedings invoking the provisions contained in Section 146 of Code of Civil Procedure, whether it is in the appeal stage or in the trial stage. Of course, the provision starts with "Save as otherwise provided by this Code". This provision would bar only proceedings which would be obnoxious to some provisions of the Code see Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, . In the Supreme Court, adopting a bountiful and stintless interpretation of Section 146 of Code of Civil Procedure, said "A person who is not an assignee of the decree under Order 21, Rule 16 of the Code can invoke the provisions of this Section if he is otherwise entitled to the fruits of the decree, as for instance, by an equitable assignment of the decree". In fact, in an early decision of the Supreme Court reported in AIR 1955 S.C. 376 (Jugalkishore v. Raw Cotton Co.) it was held that the Section can be invoked in cases not falling under the specific provisions of the Code such as Order 21, Rule 16 of Code of Civil Procedure.

Now, Order 21 Rule 16 of CPC has been amended by the Amendment Act of 1976 by the addition of an Explanation which enacts that nothing in that Rule shall affect the provisions of Section 146 of Code of Civil Procedure. In Section 146 of CPC the words used are ''proceeding'' or ''application''. There is ample authority of the Supreme Court itself to say that an appeal is proceeding contemplated by the section. So a person claiming under a party to the appeal may prefer or continue or defend an appeal, although he is not himself a party to the suit if he satisfies the other requirements of the section.

True, wide Order 41, Rule 19 of CPC only the Appellant can file an application. Even though the appeals stand dismissed, certainly the quantum Appellant has got a right to file an application under Order 41, Rule 19 of CPC invoking the provision u/s 146 of Code of Civil Procedure. A stranger (purchaser) from ah Appellant who subsequently became a quantum Appellant also logically should have the power of the quantum Appellant to invoke the provision, contained in Order 41, Rule 19 of Code of Civil Procedure. Naturally the substantial right relied on by the purchaser is u/s 146 of Code of Civil Procedure.

There was some controversy as to the question whether a purchaser can be considered as a person claiming under a vendor in the matter of prosecuting an appeal or a proceeding before the court. This controversy arose on the fundamental basis that in fact, an assignee is not claiming any right under his assignor by virtue of his assignment. He is clothed with all rights in the property without reference to his predecessor in interest, the vendor after the purchase. If we accept such an interpretation in understanding the purpose and object of Section 146 of Code of Civil Procedure, it will obliterate the benign and beneficient intention of the legislature symbolised in Section 146 of Code of Civil Procedure. But there is, no difficulty for us to conclude that an assignee of a property which Was under litigation from an Appellant or Plaintiff as the case may be is a person claiming u/s 146 of Code of Civil Procedure. The Supreme Court has said that the expression ''claiming under'' is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10 and devolution of interest pending suit--Vide Conugunta Subbarayudi Vs. Eluri Brahmanadan and Others, .

In 1969 KLT 412 (Sarojini v. Santha Trading Co. and Ors.) a question arose as to whether a claim suit under Order 21, Rule 63 of CPC can be filed by an assignee of the property. It was contended in that case that Order 21, Rule 63 of CPC (before amendment of the Code) allows a suit only by a party against whom an order is made in the claim proceeding. This Court said "The opening words of Section 146 CPC "Save as otherwise provided by this Code or by any law for the time being in force" connote a Rule inconsistent with the provision in the Section which allows an assignee to sue instead of his assignor. There is nothing in Order XXI Rule 63 CPC that prohibits institution of suits adumbrated therein by, persons claiming the property under the person against whom a claim order has been made". An old decision reported in ILR All 89 (Ganesh Prasad v. Kashi Nath Tiwari) makes the position very clear. Aikman, J. observed thus:

...the dismissal of his objection did not by any means finally determine that the house was not his. He had a right of suit u/s 283 of the Code of Civil Procedure. It cannot be contended that the right of suit given by that Section is a personal right of the particular claimant whose objection has been, dismissed u/s 278. If this were the case, the death of a claimant whose objection had been so dismissed might finally put an end to a claim to valuable property. If a claimant''s heir can bring a suit u/s 283, I see no reason why a representative in interest like the Plaintiff cannot do so. In my judgment the view taken by the learned Judge upon this preliminary point is wrong. I allow the appeal, and, setting aside the decree of the Court below, remand the appeal to that Court, with instructions to re-admit it under its original number in the register, and dispose of it on the merits.

In the case at hand, the transfer was effected in favour of the 2nd Respondent herein on 8th November 1982. At that time, the appeal was pending. Thereafter, it was dismissed on 25th January 1983. We have no hesitation to hold that the 2nd Respondent herein has got the legitimacy to file an application for restoration of the appeal. When the 2nd Respondent has got the legitimacy to file an application u/s 146 of Code of Civil Procedure, the only question that has to be considered is whether that application can be allowed on merits.

In this case, the court below found that the application is to be allowed for the. reason that the appeal was happened to be dismissed on account of non-appearance of the Appellant and his Counsel. The Court below has given sufficient reasons for allowing that application. Of course, we are considering this question in Second Appeal. Re-consideration on the merits of the order allowing restoration of the appeal'' have got certain limitations. If the 2nd Respondent has got the right to move the court for restoration of the appeal dismissed for default, he can say that the appeal happened to be dismissed only on account of the fact that Counsel did not appear before the court. In an appeal, normally when the appeal is taken before the court for hearing, the Appellant or Appellants as the case may be, may not be present in the court, since the whole matter has been entrusted with Counsel for conducting the appeal. In short, it is a default of the lawyer who appeared in the case and that necessitated the court to dismiss the appeal. In these circumstances, the court below thought, we would say rightly, of restoring the appeal. We cannot say that the restoration of the appeal is unjustifiable in the circumstances of the case.

Counsel for the Appellant cited before us the decisions reported in Kedarnath Kanoria and Others Vs. Khaitan Sons and Co., ; (Kedarnath Kanoria and Ors. v. Khaitan Sons and Co.) 1971 KLT 296; (Mamu v. Kunhamina Umma) 1965 KLT 43; (Jameela Beevi v. Antony Netto) and 1991 (1) K.L.J. 93; (A. Sujanapal v. Maniyadath Balan). In view of the Supreme Court decision cited earlier, we cannot say that the assignee from an Appellant is debarred from filing an application for restoration of an appeal dismissed for default. Since the Supreme Court is categoric, plain and clear on this aspect, we need not consider all the above decisions except one decision of this Court reported in 1991 (1) K.L.J. 93. Justice M.M. Pareed Pill ay held that an application for re-hearing of an appeal under Order 41, Rule 19 of the CPC dismissed for default can be sought by the Appellant if he establishes that he was prevented by any sufficient cause from appearing before the court when the appeal was taken up for hearing. Further. His Lordship said that the essential condition is that he must satisfy the court that notice was not duly served upon him or that he was prevented by sufficient cause from appearing before the court when the appeal was called on for hearing. In such a case the court shall re-hear the appeal. It was also held that Order 41 Rules 19 and 21 clearly show that only the party to the proceedings can make an application for re-hearing. A person who is not a party to the proceedings cannot file an application Under Order 41, Rule 19 or Rule 21 of Code of Civil Procedure. Counsel for the Appellant emphasised the observation of Justice Pareed Pillay that ''a person who is not a party to the proceedings cannot file an application under Order 41 Rule 19 or Rule 21''. Literally it is not incorrect to say that a person who is not a party to the proceedings cannot file an application under Order 41, Rule 19 or Rule 21 of the Code of Civil Procedure, but his remedy is to invoke Section 146 of CPC and make an application under Rule 19 of Order 41 Code of Civil Procedure. Justice Pareed Pillay has not considered the question whether an application can be filed by a person who is not a party to the proceedings invoking the aid of Section 146 of Code of Civil Procedure. In this view, with utmost respect to our Noble Brother Parked Pillay, J., we hold the belief that the decision is per incuriam. The above decision will not help the Appellant to hold that an application cannot be filed for restoration of an appeal dismissed for default by a transferee from the Appellant. As we said earlier, we have no hesitation to hold that what the lower court has done is perfectly legal and correct. The preliminary point raised by the Appellant is answered as above.

Counsel for the Appellant submitted before us that the question in the Second Appeal is centered on the fact whether the Appellant is a tenant or not. Once the suit was dismissed stating that the Appellant herein is a tenant, an appeal was filed by the defeated Plaintiffs. The appeal was remanded for fresh consideration. When that appeal, A.S. No. 95/78 was remanded on 18th December 1979, the appellate court made a specific direction that the question of tenancy need not be considered by the Tribunal, but it can be considered by the trial court itself. Thus there was no necessity to refer the case again to the concerned Land Tribunal. The court considered the question of tenancy and dismissed the suit on 31st October 1980.

Against the dismissal of the suit, an appeal was filed as A.S. No. 101/81. The appellate court did not agree with the finding recorded by the trial court. The appellate court considered all the contentions raised by the parties and recorded findings on the various issues raised in the suit. Ultimately, the appellate court allowed the appeal holding that the Appellant herein cannot claim any right of tenancy. Appellant herein has filed an application, C.M.P. No. 1639/90 for admitting a fresh document in this appeal. The fresh document sought to be admitted is an order in O.A. No. 1244 of 1972. It is dated 16th September 1981. In the affidavit, it is stated that the Appellant was under the bona fide impression that the order of the Land Tribunal, dated 16th September 1981 was produced before the District Court. Since he was not sure of the production of the document, he thought of filing an application to receive this document in the appeal as additional evidence. Counsel for the Respondents submitted that this order was passed on, 16th September 1981 and the appeal was disposed of by the lower court only on 11th April 1984 and that there was absolutely no reason for not producing the document before the lower appellate court and he strongly objected to the production of the above document in this appeal. Of course, Counsel is well fortified to say that the document ought to have been produced before the lower appellate court. But considering the nature of the document, we feel that the admission of the document is necessary to enable this Court to pronounce judgment properly in this case.

An identical question that has to be decided in the appeal has been decided by a competent authority--Land Tribunal--holding that the Appellant is a tenant. The appellate court has found that the Appellant herein cannot claim any tenancy right. In these circumstances, we feel that the document sought to be admitted in C.M.P. No. 1639/90 has to be admitted in this appeal. We do so.

Counsel for the Respondents submitted that the Respondents were not aware of the. disposal of the O.A. by the Tribunal and they came to know about the disposal of the O.A. only when C.M.P. No. 1639/90 was filed before this Court. Further t Counsel submitted that immediately after getting knowledge of the order of the Tribunal, the Respondents filed an appeal with an application to condone the delay in filing the appeal. Now an appeal has been filed challenging the order in O.A. No. 1244/72.

The result emerged creates a queer and quaint situation. A competent authority under the statute has how found that the Appellant herein is entitled to claim tenancy right in respect of the property in question. The lower appellate court has found that the Appellant is not entitled to claim tenancy right. The Tribunal found that the Appellant is entitled to claim tenancy right on 16th September 1981 and the lower appellate court found that the Appellant cannot claim tenancy right on 11th April 1984 without knowing the decision of the Tribunal.

In these circumstances, we feel that the matter requires to be considered afresh by the lower appellate court. Of course, we have to make it clear that the order has not become final, since we are told by Counsel that an appeal with an application to condone the delay has been filed by the Respondents. We remit the case for a fresh disposal of the appeal by the appellate court. We also make it clear that all the findings recorded by the appellate court are vacated. The appellate court has to consider all the questions afresh. The Appellant has filed an application for appointment of a commission for assessing the value of improvements effected by the Appellant. This application is numbered as C.M.P. No. 10779/85. The C.M.P. should also be considered by the appellate court. Appeal is disposed of as above.