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Suraj Kaur Vs. Shingara Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 382 of 1970
Judge
Reported inAIR1972P& H341
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order XXII
AppellantSuraj Kaur
RespondentShingara Singh and ors.
Cases ReferredMulraj v. Murti Raghunathji Maharaj
Excerpt:
.....of passing of the said order. - copies of this stay order had been sent direct to the additional district judge by name as well as through the district judge. if the learned district judge was not prepared to concede the prayer, he should have clearly stated so and to have afforded the appellant a proper opportunity of proving the second will by independent evidence. having failed to afford the petitioner a reasonable opportunity of proving her case without properly disposing of her application dated 7-4-1969, the additional district judge cannot hold the petitioner to blame by saying that she had not produced any evidence to prove the later will which was said to have revoked the earlier will propounded by the respondent. there has, therefore, been a material irregularity in the..........the pendency of an appeal in the court of the district judge at ferozepore. by the impugned order, suraj kaur's sister's son harminder singh, respondent no. 3, has been ordered to be impleaded as the legal representative of his maternal grandmother. as he alone contests this revision petition, he may hereafter be referred to simply as 'the respondent' in this order. 2. i had admitted this revision petition on 14-5-1970 and had directed at the time that further proceedings in the case were to be stayed ad interim. copies of this stay order had been sent direct to the additional district judge by name as well as through the district judge. the reader of the court had received both these copies and had written an order on one of them on 16-5-1970 for the signatures of the presiding officer......
Judgment:
ORDER

1. Smt. Suraj Kaur has filed this revision petition against the order dated 13-3-1970 of Shri Pritpal Singh, Additional District Judge, Ferozepore, whereby she has been precluded from taking part in a litigation relating to the estate of her deceased mother, Smt. Durga Devi. The lady had died on 11-12-1968 during the pendency of an appeal in the Court of the District Judge at Ferozepore. By the impugned order, Suraj Kaur's sister's son Harminder Singh, respondent No. 3, has been ordered to be impleaded as the legal representative of his maternal grandmother. As he alone contests this revision petition, he may hereafter be referred to simply as 'the respondent' in this order.

2. I had admitted this revision petition on 14-5-1970 and had directed at the time that further proceedings in the case were to be stayed ad interim. Copies of this stay order had been sent direct to the Additional District Judge by name as well as through the District Judge. The Reader of the Court had received both these copies and had written an order on one of them on 16-5-1970 for the signatures of the Presiding Officer. The other copy is not traceable on the lower Courts' records. In spite of the receipt of these copies of the stay order, the appeal was decided by the Additional District Judge on 20-6-1970. Proceedings are being taken separately, on the administrative side, for the disobedience of this stay order by the Presiding Officer and his staff. It may also be mentioned here that the petitioner had filed transfer applications alleging that respondent's father, who was an Army Officer at the station, wielded some influence with the District Judge and his Additionals and that the petitioner apprehended that she would not get justice at the hands of these officers. The District Judge had, therefore, transferred this case to an Additional. In a transfer application made by Suraj Kaur in the High Court, it had been allege that while transferring the case, the District Judge had threatened her that he would see as to what would happen in the Court of his Additional. The District Judge had admitted in a report called by the High Court that the said military officer was known to him and that the two had been meeting at some official functions but it was naturally denied that the District Judge had threatened Suraj Kaur in the manner alleged. Gurdev Singh, J. had observed, while dismissing the transfer application, that the case had been transferred to an Additional and it could not be believed that the District Judge would be able to influence him. The subsequent events, however, belied this confidence reposed in the judicial officers in the district and it may appear that the petitioner's misgivings were not altogether without any basis.

3. The facts of the case are that Shangara Singh, respondent No. 1, had filed a suit for possession of 81 kanals and 13 marlas of land which he claimed to have purchased from Smt. Durga Devi defendant. This suit had been partially decreed by the trial Court and Shangara Singh plaintiff had filed an appeal in the Court of the District Judge at Ferozepore. Durga Devi who was the only respondent in that appeal died on 11-12-1968 and the question of impleading her legal representatives came up. The plaintiff had made an application that the deceased's daughters, Suraj Kaur petitioner and Phool Kaur, mother of the respondent, should be brought on record as the legal representatives. The respondent had, however, filed another application claiming that he was the sole legal representative of Durga Devi by virtue of a will made in his favour on 14-5-1968. Suraj Kaur petitioner had challenged the genuineness of this will and had claimed that the deceased had made a will on 5-7-1968 which had the effect or revoking all earlier wills, if there were any. The contesting parties to the proceedings under Order XXII of the Code of Civil Procedure were, therefore, Suraj Kaur petitioner and Harminder Singh, respondent No. 3.

4. Suraj Kaur had filed an application before the District Judge on 7-4-1969 alleging that she had filed a civil suit for a declaration in which she had challenged the deeds of adoption, gift and the will set up by the respondent. The matters in dispute between Suraj Kaur and Harminder Singh were to be decided after a regular trial in that civil suit on a more permanent basis while the same questions would be summarily decided in proceedings under Order XXII of the Code of Civil Procedure during the pendency of the appeal. It was, therefore, desired that to avoid any unnecessary duplication, both the daughters of the deceased and the respondent may be impleaded as the legal representatives of Smt. Durga Devi without prejudice to the decision in the declaratory suit. This application was directed to be put up for order on 16-4-1969 but there is nothing on record to suggest that any proper orders had been passed on this application at any stage. Suraj Kaur's counsel had made a similar request when he had appeared before the District Judge on 13-6-1969. It was mentioned that Suraj Kaur was to adduce evidence regarding the will in her favour in the Court in which her civil suit for a declaration was pending and that the inquiry before the District Judge was of a limited nature. In view of these circumstances, Suraj Kaur did not feel it necessary to adduce independent evidence before the District Judge in respect of the second will of the deceased.

5. The learned District Judge closed the petitioner's evidence the same day without giving any reasons why the request made by the petitioner in her application dated 7-4-1969 or by her counsel in his statement dated 13-6-1969 could not be granted. This abrupt closing of the petitioner's evidence had led to the filing of the two applications for the transfer of the case to some Court outside the district. If the learned District Judge was not prepared to concede the prayer, he should have clearly stated so and to have afforded the appellant a proper opportunity of proving the second will by independent evidence. The petitioner had no reasons to believe that her reasonable request intended to avoid a multiplicity of proceedings and duplication of evidence would be summarily rejected without giving any valid reasons. Having failed to afford the petitioner a reasonable opportunity of proving her case without properly disposing of her application dated 7-4-1969, the Additional District Judge cannot hold the petitioner to blame by saying that she had not produced any evidence to prove the later will which was said to have revoked the earlier will propounded by the respondent. There has, therefore, been a material irregularity in the conduct of the proceedings and it has led to a failure of justice. If I set aside the impugned order, all subsequent proceedings taken by the learned Additional District Judge, in the absence of the petitioner, who may ultimately be found to be an interested party, would be without jurisdiction and this would be so independently of the case law which deals with the effect of the disobedience of a stay order by the Subordinate Court on such subsequent proceedings. An inquiry under Order XXII of the Code with regard to the impleading of legal representatives has to be carried on with some responsibility and it is not open to a Court to implead any inter-meddler or impostor having no real stake in the estate. If it is ultimately found, as pleaded by the petitioner, that the will propounded by the respondent stands revoked by a later will made by the deceased, then the respondent would have no better right to intermeddle with the estate. The petitioner has been kept out of the proceedings and has not been impleaded as a party. She could not, therefore, file any appeal against the final order of the Additional District Judge remanding the case to the trial Court. She could not for that reason take any objection in the lower Courts to the proceedings taken in her forced absence. This is the only Court, therefore, where she could be heard with regard to the alleged illegality of the subsequent proceedings taken in defiance of the stay order issued by this Court. Shri Liberhan, the learned counsel for the petitioner, had taken this objection at the earliest opportunity. When this case had come up before me on 7th October, 1970, Shri Liberhan had submitted that the order of the Additional District Judge disposing of the appeal and remanding the case on 20-6-1970 was a nullity and that his revision petition was not in any manner affected by that illegal order passed in his client's absence. I can exercise my powers under Section 115 of the Code, on my own motion or on the verbal application of the party aggrieved, to revise the subsequent proceedings irregularly taken by the Courts below after I had passed the stay order.

6. In Motiram Roshanlal Coal Co. (P.) Ltd. v. District Committee, Dhanbad, AIR 1962 Pat 357, the ruling cited by Shri Liberhan, it had been held as follows:--

'It is well settled that an order by a superior Court staying further proceedings in the Court below becomes operative the moment it is made and not after its communication to the subordinate Court. Where, therefore, an order is made by the superior Court, be it the appellate Court or the revisional Court staying further proceedings in a case in the Court below, subordinate to it, it suspends the power of the lower Court to continue the proceedings in such a case. If in spite of the stay of further proceedings in the Court below by the superior Court, some order is passed by the Court below, in violation of the stay order in operation, such an order is without jurisdiction.'

The same view was taken by a Full Bench of the Lahore High Court in Karam Ali v. Raja, AIR 1949 Lah 108. This foreign ruling was followed by a Division Bench of this Court in Din Dayal Lakhi Ram v. Union of India, AIR 1954 Punj 46. Kaku Singh v. Gobind Singh, AIR 1959 Punj 468 and Nathu Ram v. Jagan Nath, AIR 1960 Punj 521, are other rulings on the point. The entire case law has, however, been discussed by the Hon'ble Judges of the Supreme Court in Mulraj v. Murti Raghunathji Maharaj, AIR 1967 SC 1386. It was held that a stay order issued to a subordinate Court was in the nature of a prohibitory order or injunction and that it takes effect when it is brought to the notice of the subordinate Court. Proceedings that take place between the date of the passing of the order and the date of its communication to the subordinate Court would not be without jurisdiction but where the party aggrieved takes steps in that regard, it would be in the interest of justice that these interim proceedings should be set aside. The Hon'ble Judges of the Supreme Court had been pleased to observe as follows in this connection:--

Though the Court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it had no knowledge of it, this does not mean that when the Court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the stay order. We are of opinion that S. 151 of the Code of Civil Procedure would always be available to the Court executing the decree, for it such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so.'

7. The rulings cited above relate to cases where the party aggrieved had not been precluded from taking part in the proceedings. The petitioner has not been impleaded as a party so far and it would not be open to her to request the trial Court in which the case is now pending that the proceedings taken in her forced absence should be set aside.

8. As the prayer made by the petitioner and her counsel in the application dated 7-4-1969 and in the statement dated 13-6-1969 has been declined without giving any valid reasons, I feel that there has been a material irregularity in disposing of the case. The impugned order is, therefore, set aside as also the proceedings taken thereafter by the subordinate Courts. The appeal should be restored to its old number and the Additional District Judge should dispose of afresh, in a proper manner, the controversy under Order XXII of the Code of Civil Procedure, 1908.

9. Revision allowed.


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