Nazir Ahmad Dar vs Mst. Nabza and Others

Gh. Hasnain Massodi, J.—The short controversy involved in the instant Civil Revision revolves around right of stranger to a suit to file the

appeal against the judgment and decree passed in the suit. The Civil Revision has been filed against the following back drop;

The Petitioner herein on 24.9.2004, filed a Civil Suit against the proforma Respondents in the Court of Munsiff Anantnag. The suit related to a

plot of land measuring 2 Kanal 10 Maria's comprising of Survey NO's. 402 and 605 situated at village Muniwar Tehsil Anantnag. The Petitioner

claimed to be owner in possession of the suit land and sought a declaratory decree to the said effect. The Petitioner also prayed for a permanent

injunction decree perpetually restraining the proforma Defendants from interfering with the Petitioner's possession over the suit land. The proforma

Respondents (Defendants in the suit) appeared before the Trial Court and filed written statement admitting the Petitioners claim over the suit land,

Learned Munsiff Anantnag decreed the suit on 26.11.2002. The proforma Respondent thereafter seemingly disowned the written statement

admitting the Petitioners suit and filed a Civil suit for cancellation of the decree dated 26.11.2002 in the suit titled Nazir Ahamad Dar v. Mst.

Nabza and Ors. File No. 314 of Munsiff Anantnag. The suit stands registered as No. 203/2004. In the meantime the contesting Respondent filed

an appeal against the aforesaid judgment and decree dated 26.11.2002. The contesting Respondent conscious that she was not a party to the suit

and thus not competent to file an appeal against the judgment and decree without permission from first Appellate Court, made an application for

grant of permission u/s 96 CPC to file the appeal. Learned Principal District Judge Anantnag vide order dated 25.4.2009 allowed the application

and granted permission to the contesting Respondent to file the appeal.

The case set up by the contesting Respondent before the Appellate Court was that the suit land was transferred to her by her husband the

proforma Respondent-No.2 (Defendant No. 1 in the suit) way back in the year 1992, in lieu of dower and that a document evidencing the

transaction had been duly executed and notarized on 7.4.1992. The applicant's case was that the applicant in wake of the above transaction had

become absolute owner of the property in question and the proforma Respondents (Defendants in the suit) had no right or authority to enter into a

compromise in respect of the suit land with the Petitioner and admit the Petitioner to be owner of the suit land. It was averred that the applicant

was prejudicially effected by the judgment and decree sought to be impugned in the appeal and thus had a right to file appeal against the judgment

and decree. Learned Principal District judge Anantnag relying on the law laid down in 1989 SLJ 488 held that the applicant deserved to be

permitted to file the appeal and opined that questions of fact and law sought to be raised by the Petitioner were to be dealt with while hearing and

disposing of the main appeal.

The order dated 25th April 2009 of Learned Principal District Judge is assailed on the grounds that the Appellate Court has failed to apply its

mind to the facts of the case and committed a jurisdictional error by accepting the application in question. It is pleaded that, had the Appellate

Court examined the document relied upon by the applicant it would have dawned on the Court that the document, though compulsorily to be

registered, was not registered and thus no rights would flow out of the document to the applicant. It is pleaded that the proforma Respondent No.

2 filed Civil Suit before the Munsiff Court Anantnag seeking cancellation of decree dated 26.11.2002 and the Respondent No. 1 had also filed an

application for her impleadment as party/Plaintiff in the suit and that the application is awaiting disposal before the said Court. It is insisted that the

Appellate Court ought to have left the matter for the Trial Court to decide rather than allowing the applicant to file the appeal.

Heard.

Section 96 CPC does not refer to or enumerate the person(s) who can file appeal. However it is no more res integra that the right to file appeal is

not restricted to parties to the suit/action or to the legal representative of the parties. A person who is aggrieved by the judgment sought to be

appeal against, may be allowed to appeal against the judgment if he is adversely affected by the judgment. Such person has to, persuade and

convince the Court, while seeking permission to file the appeal; that the judgment in question prejudicially affects his interests. In the present case

the contesting Respondent claimed to have acquired ownerships rights in respect of the property that was subject matter of the suit between

Petitioner and proforma Respondents and was later compromised prior to the institution of the suit. The judgment and decree against which appeal

was intended to be filed prejudicially affect the interests of the contesting Respondent. The contesting Respondent was genuinely aggrieved of the

judgment and decree passed at her back and that also with undue haste, The argument that Learned Appellate Judge ought to have, gone beyond

the application and assessed the case proposed to be set up by the contesting Respondent at the touch stone of rules of evidence and look into

merits of the proposed case is preposterous. What Learned Trial Judge while dealing with the application for grant of leave to file the appeal, was

required to focus on the question whether on the strength of the averments made in the application, the applicant appeared to be aggrieved of the

judgment and decree and was prejudicially affected thereby. Learned Appellate judge was neither competent at the thresh hold stage nor required

to give opinion on the merits of the case proposed to be projected by the applicant through medium of proposed appeal when the applicant had

yet to unfold her case. The fact that the applicant independent of the application for grant of leave to file the appeal, also voiced her grievance in

some different proceedings, would not strip the applicant of a right to file the appeal but strengthen her stand that she had a genuine grievance

against the judgment and decree against which appeal was sought to be filed and was materially prejudiced by the judgment and decree. In order

to give a person a right to file a regular appeal against a judgment and decree u/s 96 CPC following two conditions must be satisfied;

(1) The subject matter of the appeal must be a decree i.e. a conclusive determination of the rights of the parties with regard to and or any of the

matters in controversy in the suit, and

(2) The party appealing must have been adversely affected by such determination.

In the present cases both the conditions were satisfied in as much as the appeal was sought to be filed against the decree and the applicant had a

genuine grievance because the judgment and decree against which the appeal was proposed to be filed prejudicially and adversely affected the

interests of the contesting Respondent.

So viewed, Learned Principal District Judge, has rightly exercised discretion while according permission to the contesting Respondent to file the

appeal.

The Civil Revision being bereft of any merit is hereby dismissed. Copy of the order be sent to the Trial Court.