RANCHHOD BHALAJI Vs. MODI KUBERDAS HARGOVANDAS

JUDGEMENT

(1.) These appeals arise out of the sane set of facts and will therefore be disposed of by a common judgment. The facts giving rise to these appeals are rather peculiar and may be briefly slated as follows.

(2.) The respondent who is the original plaintiff filed Suit No. 2514 of 1948 against the appellants father Bhalaji Gendal in the Court of the Civil Judge (Junior Division) Ahmedabad for a declaration that Bhalaji Gendal was not a permanent tenant of the respondent in respect of A certain field and for possession of the field together with mesne profits. The ground on which possession was sought by the respondent was that Bhalaji Gendal was a tenant of the respondent in respect of the field since 1916 A. D. and that the respondent had terminated the tenancy of Bhalaji Gendal by a notice dated 21st February 1947 since the respon- dent required the field for his personal and non-agricultural use Bhalaji Gendal in his written statement contended that he was a permanent tenant of the respondent in respect of the field and that in any even there upondent was not entitled to possession of the field in as much as the notice given by the respondent terminating his tenancy was not legal and valid. Bhalaji Gendal also raised various other contentions in his written statement which it is not necessary to set out for the purpose of the present appeals. During the pendency of the suit Bhalaji Gendal died and the appellants who are his heirs mere therefore brought on record as defendants in place and stead of Bhalaji Gendal. On the date of hearing of the suit the appellants did not remain present and the suit therefore proceeded ex parte against the appellants. The trial Court recorded the evidence led on behalf of the respondent and passed an ex parte decree on 30th October 1952 declaring that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will The trial Court however rejected the respondents prayer for possession of the field and mesne profits on the ground that the notice of termination of tenancy was not valid and legal Since the prayer of the respondent for possession and mesne profits was rejected by the trial Court by the ex parte decree dated 30th October 1952 the respondent filed an appeal complaining against that part of the ex parte decree by which his prayer for possession and mesne profits was rejected. Before the appeal was filed by the respondent the appellants made an application before the trial Court on 17th November 1952 for setting aside the exparte decree. The application was heard by the trial Court and by an Order dated 6th September 1953 the trial Court rejected the application. The appellants thereupon filed an appeal against the Order rejecting the application for setting aside the ex parte decree. This appeal was filed on 20 October 1953. During the pendency of this appeal the respondents appeal against the ex parte decree came up for hearing before the learned Assistant Judge at Ahmedabad. even though the appellants appeal against the Order reacting the application to set aside the ex parte decree was pending this fact was not brought to the notice of the learned Assistant Judge during the hearing of the respondents appeal. The appellants appeared at the hearing of the respondents appeal but they also did not draw the attention of the learned Assistant Judge to the fact that their appeal against the Order rejecting the application to set aside the ex parte decree was pending in the same Court. The learned Assistant Judge proceeded with the hearing of the respondents appeal and disposed of the same by a judgment dated 30th December 1953. The learned Assistant Judge held that the notice of termination of tenancy given by the respondent to Bhalaji Gendal was valid and legal and he accordingly passed a decree in favour of the respondent for possession of the field and mesne profits. The result was that the respondent became entitled under the decree to recover possession of the field from the appellants together with mesne profits. After the disposal of the respondents appeal the appellants appeal directed against the Order refusing to set aside the ex parte decree came up for hearing before the same learned Assistant Judge. It is curious that though prior to the hearing of the appellants appeal the respondents appeal had already been disposed of by the learned Assistant Judge by a decree dated 30th December 1953 this fact was not brought to the notice of the learned Assistant Judge at the time of the hearing of the appellants appeal either by the appellants or by the respondent. The hearing of the appellants appeal proceeded before the learned Assistant Judge as if nothing had transpire I after the passing of the ex parte decree by the trial Court on 30th October 1952 and the ex parte decree remained subsisting. The learned Assistant Judge by an Order dated 23rd August 1954 allowed the appellants appeal and set aside the ex parte decree passed by the trial Court on 30th October 1952. In the meantime the respondent filed an application for execution of the decree passed by the learned Assistant Judge on 30th December 1953 under which the respondent was entitled to recover possession of the field from the appellants and on the application execution was ordered to issue on 6th March 1954 and in execution possession of the field was taken from the appellants and handed over to the respondent on 26th March 1954. The result was that on 23 August 1954 when the appellants appeal was decided by the learned Assistant Judge the appellants were no longer in possession of the field the respondent having recovered possession of the same from the appellants in execution of the decree passed by the learned Assistant Judge on 30th December 1953. The appellants thereafter filed an application for restoration of possession of the field from the respondent on 6th October 1954. The ground on which the application was made by the appellants was that the ex parte decree had been set aside by the Order made by the learned Assistant Judge on 23rd August 1954 and that the appellants were therefore entitled to restoration of possession of the field which had been taken from them on 26th March 1954. This application was rejected by the trial Court on 31st March 1955 since in the opinion of the trial Court the ex parte decree dated 30th October 1952 which was purported to be set aside by the Order made by the learned Assistant Judge on 23rd August 1954 was already merged in the decree passed by the learned Assistant Judge on 30th December 1953 before the Order setting aside the ex parte decree was passed on 23rd August 1954 and there was therefore no ex parte decree on which that Order could operate and the decree passed by the learned Assistant Judge on 30th December 1953 therefore remained valid and binding on the parties and since possession of the field was recovered by the respondent from the appellants in execution of that decree the appellants were not entitled to restoration of possession of the field from the respondent. It appears that the suit was placed before the trial Court on the basis that the ex parte decree was set aside by the Order of the learned Assistant Judge dated 23rd August 1954 and that the suit was therefore revived. The trial Court by an Order dated 31st March 1955 held that the suit was already disposed of by the decree dated 30th December 1953 passed by the learned Assistant Judge in the respondents appeal and that nothing further therefore remained to be done in the suit. The appellants thereupon filed two appeals one against the Order rejecting their application for restoration of possession of the field and the other against the Order treating the suit as disposed of. Both the appeals were heard by the Assistant Judge at Ahmedabad. The learned Assistant Judge came to the same conclusion as the trial Court and dismissed the appeals. It is against the dismissal of these appeals that the appellants have brought the present Second Appeals before this Court.

(3.) The short question which arises in these Second Appeals is as regards the effect of the decree dated 30th December 1953 passed by the learned Assistant Judge in the respondents appeal and the Order dated 23 August 1954 passed by the learned Assistant Judge in the appellants appeal. By the Order dated 23rd August 1954 the learned Assistant Judge purported to set aside the ex parte decree dated 30th October 1952 even though the respondents appeal against the ex parte decree had already been disposed of before that date by the decree dated 30th December 1953. The question is did the ex parte decree subsist after the decree dated 30 December 1953 was passed by the learned Assistant Judge in the respondents appeal and if it did not subsist and was merged in the decree dated 30th December 1953 did the Order dated 23rd August 1954 have the effect of setting aside or superseding the decree dated 30th December 1953 ? The argument of Mr. R. M. Shah learned advocate on behalf of the appellants was that the ex parte decree dated 30th October 1952 was not merged in the decree dated 30th December 1955 at least in so far as it declared that the appellants were not permanent tenants of the respondent but were merely tenants at will and that the Order dated 23rd August 1954 passed by the learned Assistant Judge in the appellants appeal set aside this portion of the ex parte decree which subsisted even after the passing of the decree dated 30th December 1953. Mr. R. M. Shah contended that the relief for declaration that the appellants were not permanent tenants of the respondent in respect of the field was the principal relief claimed by the respondent and that since the relief for possession and mesne profits was consequential upon this principal relief if the ex parte decree granting this principal relief was set aside by the Order dated 23rd August 1953 the decree dated 30th December 1953 granting consequential relief could no longer stand and must be taken as set aside by the Order dated 23rd August 1954 Mr. R. M. Shah drew the analogy of an appeal against a preliminary decree in a mortgage suit and contended that just as the setting aside of the preliminary decree in appeal would also carry with it the consequence of setting aside the final decree which may be passed during the pendency of the appeal similarly the setting aside of the ex parte decree dated 30th October 1952 in respect of the principal relief of declaration would also carry with it the consequence of setting aside the decree dated 30th December 1953 in respect of the consequential relief for possession and mesne profits. The net result of the argument was that by the Order dated 23rd August 1954 both the ex parte decree dated 10th October 1952 as well as the decree dated 30th December 1953 were set aside and the respondent having obtained possession of the field from the appellants in pursuance of a decree which was set aside or had ceased to exist the respondent was liable to restore possession of the field to the appellants and there being no decree in the suit the trial Court was bound to proceed with the hearing of the suit. The argument is in my opinion untenable and for reasons which I shall presently proceed to state I cannot accept the same.