Vaheed Khan vs Rao Naushad Khan And Others

Sharad Kumar Sharma, J

The matter is heard through video conferencing.

There was a regular suit instituted being Suit No. 1 of 1995 ‘Masoom Ali (deceased) vs. Khalil and Others’, which was decreed in favour of

the plaintiff/respondent nos. 2 to 5 by the judgment dated 19.07.2010 as rendered by the Court of Civil Judge (S.D.), Haridwar. Being aggrieved

against the said judgment and decree, three regular civil appeals under Section 96 of the Code of Civil Procedure were filed being Civil Appeal No. 48

of 2010, Civil Appeal No. 49 of 2010 and Civil Appeal No. 50 of 2010, which were preferred by the judgment debtors. These three appeals were

dismissed on 20.02.2013 by the First Appellate Court by a composite judgment as rendered therein.

Aggrieved against the said First Appellate Court’s judgment, a second appeal was preferred by Khalil and Others, the judgment debtors before

this Court, which was numbered as Second Appeal No. 41 of 2013 ‘Khalil and Others vs. Masoom Ali and Others’. The same was dismissed

by this Court by the judgment dated 02.04.2013. This judgment of dismissal of the second appeal dated 02.04.2013 stood affirmed in a review petition

preferred by the defendant (appellant therein) being Review Application No. 348 of 2013, which too stood dismissed on 02.07.2013.

Be that as it may, the appellant feeling himself to be aggrieved against the judgments, which stood affirmed upto the Second Appellate Court; on the

grounds that the property belongs to their predecessors; on the ground that they have got a vested right in it; on the ground that they were not made as

a party to the proceedings of Original Suit No. 1 of 1995 ‘Masoom Ali (since deceased) vs. Khalil and Others’, the appellant herein had filed an

application under Order 21 Rule 97, 99, 101 and 105 of IPC on various grounds, which have been taken therein.

At this stage, this Court is refraining itself to venture into the merits of the application preferred by the appellant/applicant herein under Order 21 of

CPC. However, the said application as preferred by the appellant/applicant was numbered as Miscellaneous Case No. 71A of 2013 ‘Vaheed Khan

vs. Rao Naushad and Others’. The said miscellaneous case, on its consideration on merits was dismissed by one of the impugned judgments dated

15.04.2019 under challenge in the present second appeal by the Court of Civil Judge (S.D.), Haridwar. It is the settled law and even as it is intended

by the provisions contained under Order 21 Rule 103 of CPC, that any adjudicated made to application under Order 21 Rule 97, 99, 101 and 105 on its

adjudication would take the shape of a decree as contemplated under Order 21 Rule 103. Hence, if an adjudication of the application under Order 21

Rule 97, 99, 101, 105, is made, it takes the shape of a decree, as provided, under Order 21 Rule 103, it would be assailable by way of a regular appeal

to be preferred under the provisions contained under Order 41, to be read with Section 96 of the Code of Civil Procedure, but unfortunately, the

petitioner, on account of the legal advice extended, had filed a civil miscellaneous appeal under Section 104 of CPC to be read with Order 43, which

was accordingly registered as Miscellaneous Civil Appeal No. 46 of 2019 ‘Vaheed Khan vs. Rao Naushad Khan and Others’.

As far as the provisions contained under Section 104 of CPC, is concerned, it has got its own limitation and the ambit of the orders, which could be

put to challenge under it, it should be an order, which falls to be within the scope of the provisions contained under Order 43. This Court is of the

considered view that the rejection of Miscellaneous Case No. 71A of 2013 ‘Vaheed Khan vs. Rao Naushad and Others’, will not fall to be an

order under the ambit of Section 104 to attract the Order 43, in order to make his Miscellaneous Civil Appeal No. 46 of 2019 ‘Vaheed Khan vs.

Rao Naushad Khan and Others’ maintainable before the Appellate Court. The scope of filing Miscellaneous Civil Appeal, is only as against the

orders passed under the provisions referred under Order 43, adjudication of application under Order 21 Rule 97, 99, 101 and 105, do not to be under

Order 43, as Miscellaneous Civil Appeal could not be filed.

However, for the reasons best known to the appellant he has preferred a Miscellaneous Civil Appeal No. 46 of 2019 ‘Vaheed Khan vs. Rao

Naushad Khan and Others’. The said Civil Miscellaneous Appeal, came up for consideration before the District Judge, Haridwar, and the same

has been dismissed by the judgment with the following observations:

“11. bl izdkj] fo}ku fu’iknu U;k;ky; }kjk vihykFkhZ r`rh; i{k ds }kjk ;ksftr izkFkZuk i= vUrxZr vknsâ€k 21 fu;e 97 lh0ih0lh0 ij ikfjr vkykSP;

vknsâ€k ftlds fo:) vihykFkhZ }kjk ;g izdh.kZ flfoy vihy ;ksftr dh x;h gS og fMØh ekuh tk,xh rFkk vknsâ€k 21 fu;e 103 lh0ih0lh0 esa mfYyf[kr

izko/kkuksa ds rgr mDr vknsâ€k ds fo:) bl U;k;ky; ds er esa fu;fer flfoy vihy ;ksftr dh tkuh pkfg, FkhA izkFkhZ@vihykFkhZ }kjk ,slk ugha fd;k x;k

vkSj uk gh ,slk dksbZ izkFkZuk i= izLrqr fd;k x;k] ftlls bl izdh.kZ vihy dks fu;fer flfoy vihy ds :Ik esa fu;ekuqlkj ifjofrZr fd;k tk lds] blfy, mijksDRk

dkj.kksa ls ;g izdh.kZ fof/kuqlkj iks’k.kh; izrhr ugha gksrh gSA

vr% esjs }kjk dh x;h mDr ppkZ] vknsâ€k 21 fu;e 103 lh0ih0lh0 esa mfYyf[kr izko/kkuksa ds vkyksd esa vihykFkhZ dh izdh.kZ flfoy vihy

xq.k&nks’k ij dksbZ jk; O;Dr fd;s fcuk fujLr fd;s tkus ;ksX; gSA

fo}ku voj U;k;ky; dh i=koyh bl fu.kZ; dh izfr ds lkFk vxzsrj dk;Zokgh gsrq vfoyEc izsf’kr dh tk,A izdh.kZ flfoy vihy i=koyh fu;ekuqlkj

vfHkys[kkxkj lafpr gksAâ€​

The Appellate Court has held therein that in view of the provisions contained under Order 21 Rule 103 of CPC, which is quoted hereinbelow, since

an adjudication of an application under Order 21 Rule 97, takes the shape of a decree, the Civil Miscellaneous Appeal would not be maintainable under

Section 104 of Code of Civil Procedure. Accordingly, the same was dismissed by the impugned judgment dated 01.02.2020.

“Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the

same conditions as to an appeal or otherwise as if it were a decree.â€​

The appellant challenging the aforesaid impugned concurrent judgments preferred the writ petition invoking the provisions as contained under

Article 227 of the Constitution of India being Writ Petition No. 446 of 2020 ‘Vaheed Khan vs. Rao Naushad and Others’ before this Court. The

same was dismissed by an order dated 20.02.2020 holding that it is not maintainable, since the issue involved consideration was of a decree, as falling

under Order 21 Rule 103 of CPC; and if at all the appellant contends that it was a decree under Order 21 Rule 103 of CPC, then it would be

appealable, hence the present second appeal.

After having heard the learned counsel for the parties; if the provisions contained under Section 100 of the Code of Civil Procedure itself is taken

into consideration, which reads as under, the second appeal would lie against a “decreeâ€​ as defined under Section 2(2) of the CPC:

“(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the

High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case

involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case

does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the

appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.â€​

If the second appeal at all is tenable its only as against an adjudication made by the First Appellate Court, which takes the shape of a decree, it will

not be appealable under Section 100 of CPC, for any order passed under Section 104 of CPC, which confines itself to the Miscellaneous Civil Appeal,

against the orders as provided therein under Order 43. Hence, the adjudication made by the Appellate Court of dismissing the Miscellaneous Civil

Appeal is not maintainable, as the judgment dated 01.02.2020, will not be a decree of Appellate Court, as the decree defined under Section 2(2) of

Code of Civil Procedure, which is impugned herein, does not suffer from any vices as such to call for an interference under Section 100 of CPC.

Section 2(2) of the Code of Civil Procedure is quoted hereunder:

“(2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of

the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the

rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.â€​

Having said so, since I hereby hold that the proceedings of the Miscellaneous Civil Appeal as against the judgment and decree dated 15.04.2019

rendered in Miscellaneous Civil Case No. 71A of 2013 ‘Vaheed Khan vs. Rao Naushad Khan and Others’, which has been held to be not

maintainable, the appellant herein cannot be left remedyless under law as against the impugned judgment of the Civil Judge (S.D.) dated 15.04.2019.

In such a situation, this Court while dismissing the second appeal and holding thereof, as there happens to be no apparent substantial question of law

involved to be considered in present second appeal, particularly, as against the decree of the First Appellate Court dated 01.02.2020. Hence, the

second appeal is dismissed.

However, since the miscellaneous civil appeal has been dismissed by the Second Additional District Judge holding it to be not maintainable, this will

not preclude the appellant to have his recourses available before competent court or before an appropriate forum, whichever is available to him in

accordance with law.

Subject to the above observation, the second appeal lacks merit and the same is dismissed.

It is once again made clear that any finding recorded in the Miscellaneous Civil Appeal or by this Court while dismissing the second appeal will not

be construed to be an adjudication of a right or merits of the parties to the second appeal.