KHATIRZAMAN KHAN Vs. MOHDZAFAR ALI KHAN

JUDGEMENT

(1.) This is a second rent appeal preferred by one of the defendants in the trial Court against an appellate decision of the learned Civil Judge of Sultanpur.

(2.) The material facts are as follows : A suit was brought by Mirza Bahadur Mohammed Zafar Khan against 13 defendants for recovery of under-proprietary rent due for the years, 1346, 1347, and 1348 F. The sum claimed was Rs. 407-4- 9. A written statement was filed by some of the defendants, but it appears that they failed to appear on the date fixed for hearing, and a decree for Rs. 375-14-9 with costs and interest was passed ex parte against all the defendants on 20th June 1942. There was, however, a provision contained in the decree that the liability of each defendant was limited to l/l3 of the sum decreed. One of the defendants to the suit, Khaliq Bahadur Khan, defendant 10, was a minor. An application for setting aside the ex parte decree was made on his behalf on 26th July 1942. This was allowed, and the ex parte decree was set aside against the minor defendant 10 only, on 2 September, 1942. On 29 December 1942, a decree for Rs. 28-13-10 2/13 with proportionate costs and future interest at 61/4 per cent. per annum was passed against Khaliq Bahadur Khan alone. On 2nd January 1943, Khaliq Bahadur Khan preferred an appeal against the decree which was passed against him on 29 December 1942. He impleaded all the other defendants also in the array of respondents and the last ground of appeal contained the following statement: The appeal is being filed for the benefit of respondents 2 to 13 who are joined as pro forma respondents. When this appeal came up for hearing before the Civil Judge of Sultanpur on 12 July 1943, counsel for the decree-holder (who was respondent 1) stated "that the decree be set aside as the appellant's proper guardian was not appointed by the trial Court." It appears from the judgment under appeal that counsel for respondent 1 further stated that he discharged the appellant (Khaliq Bahadur Khan) from the array of parties. There. upon the learned Civil Judge passed the following order: In view of this statement, the appellant's name is ordered to be removed from the array of the parties and the trial Court's decree is hereby set aside as against him. Other grounds of appeal are consequently not pressed. As the other respondents against whom the ex parte decree has been passed have not appealed it is left intact. Khatirzaman Khan, who was arrayed as defendant 11 in the trial Court, and against whom also an ex parte decree was passed on 20 June 1942, has preferred this appeal against the decree of the learned Civil Judge dated 12 July 1943.

(3.) It was contended by the learned Counsel for the appellant that the learned Judge in the Court below was in error in allowing respondent 1 to abandon his claim against Khaliq Bahadur Khan at that stage in the Court of appeal. He further contended that as a result of the course adopted by the learned Judge he was deprived of an opportunity to challenge the propriety of the decree. Reference was also made in the course of arguments by the learned Counsel to the provisions of Secs.228 and 234, U.P. Tenancy Act. He argued that under the provisions of Section 234, the liability of each defendant should have been specified in the decree that was passed. This last argument of the learned Counsel is obviously based on a misapprehension. I have looked into the decree and, as already stated in the opening portion of this judgment, it contains a provision that the liability of each defendant is limited to l/l3 of the amount decreed. The contention of the learned Counsel proceeded on a misapprehension as to the nature of that decree. I may observe, however, that the decree which is under appeal now is not the decree of 20 June 1942, but that passed by the learned Civil Judge of Sultanpur on 13 July 1943. No appeal against the decree dated 29 December, (20 June 1942) was preferred by Khaliq Bahadur Khan. I may further observe in passing that even if it were permissible for the appellant to challenge the decree of 20th June 1942, (to which he is clearly not entitled) any reference to S3. 228 and 234, U.P. Tenancy Act would be wholly irrelevant. As laid down by a Bench of the Avadh Chief Court in Shakoor Ahmad Khan V/s. Faiyaz Hasan A.I.R. (31) 1944 Oudh 312 the provisions of Section 228 are applicable to sub-proprietors in the province of Agra only and not to under-proprietors in Avadh.