SHIVDAYAL Vs. MEENABAI

JUDGEMENT

(1.) This appeal by the plaintiff/appellant under Order XLIII Rule 1(u), CPC is directed against the judgment and decree dated 7-9-2012 passed in Civil Appeal No. 55-A/2010 (Meena Bai Vs. Shiv Dayal and others) by the Additional District Judge to the Court of II Additional District Judge (Fast Track Court), Ganj Basoda, District Vidisha. By the aforesaid impugned judgment and decree, the judgment and decree passed by the Trial Court in Civil Suit No. 106-A/2009 (Shivdayal Vs. Meena Bai and others) has been set aside and remanded back to the Trial Court to decide the matter afresh on merits. Facts necessary for disposal of this appeal are to the effect that as per plaint averments, the plaintiff's father, Mahesh Babu and Sukhlal are real brothers. Sukhlal was not married. He was dumb. He used to stay with the plaintiff's father. Plaintiff used to look after him, therefore, Sukhlal developed love and affection for plaintiff. On 10-2-1999, Sukhlal had bequeathed his share in the Joint Hindu Family properly; various parcels of agricultural land including the suit land in favour of the plaintiff as described in Paragraph 2 of the memorandum of appeal. Plaintiff's father and Sukhlal have been in joint possession to the extent of 2.299 hectares out of the Joint Hindu Family property. Accordingly, the plaintiff succeeded the entire land as aforesaid. The remaining defendants of Joint Hindu Family are in possession to the extent of holding fallen to their shares. One Meena Bai (defendant No. 1) though had no relationship with Sukhlal but styling herself as widow of Sukhlal made an attempt for seeking mutation in the revenue record in respect of the suit land. As plaintiff apprehended that on misrepresentation, she may create third party rights over the suit land, he filed the present suit.

(2.) Defendant No. 2 supported the claim of plaintiff, however, remaining defendants remained ex parte.

(3.) Trial Court framed issues and on the basis of evidence brought on record decreed the suit partially. First appeal under Section 96, CPC was filed at the instance of defendant No. 1-Meenabai. First Appellate Court as a matter of fact was required to address on the merits of the suit and deliver the judgment upon appreciation of material placed on record with due advertence to the pleadings of the parties. First Appellate Court instead has in fact and in effect invoked the jurisdiction under Order XLIII Rule 1(d), CPC and addressed on grounds of sufficiency of reasons and justification germane for deciding appeal against order refusing to set aside ex parte decree under Order IX Rule 13, CPC. This could not have been done as in appeal under Section 96, CPC against ex parte decree, it is not open for Appellate Court to address on grounds for setting aside ex parte decree. This could not have been done as scope and jurisdiction of appeal under Order XLIII Rule 1(d), CPC is different and independent of jurisdiction of first appeal under Section 96, CPC. The First Appellate Court framed question to the effect that, (i) whether the Trial Court was justified in passing the ex parte judgment and decree against the defendant No. 1/appellant?; and (ii) whether the ex parte judgment and decree passed by the Trial Court was liable to be set aside on facts? Both these questions are amenable to different nature of jurisdiction, which are mutually independent. For setting aside ex parte judgment and decree by preferring an application under Order IX Rule 13, CPC, defendant may question the correctness of the same contending that he had sufficient and cogent reasons for not being able to attend hearing of the suit on the relevant date, on which ex parte judgment and decree was passed whereas in a first appeal under Section 96, CPC against the ex parte judgment and decree, these grounds cannot be raised and adjudicated. [Refer to the judgment of Hon'ble Supreme Court Bhanu Kumar Jain Vs. Archana Kumar and another, 2005 1 SCC 787 and a Division Bench judgment of this Court Rasiklal Manikchand Dhariwal and Dhariwal Industries Limited, 2009 2 MPLJ 329].