IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No._268 of 2003. Judgement reserved on: 14.7.2008. Date of decision: July 16, 2008. Ram Dass ….. Appellant. Vs. Smt. Shankari Devi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ajay Kumar, Advocate. For the Respondents : Mr. K.D. Sood, Advocate, for respondent No. 1. Kuldip Singh, Judge. The defendant No.1 has come in appeal against judgement, decree dated 3.5.2003, passed by learned District Judge, Bilaspur in Civil Appeal No. 96 of 1994 setting- aside judgement and decree dated 27.9.1994 passed by learned Sub Judge Ist Class, Ghumarwin in case No. 132/1 of 1990. 2. The facts in brief are that respondent No.1 filed a suit for declaration and permanent prohibitory injunction that she is legally wedded wife of appellant- defendant No.1, who has kept a mistress, ousted respondent No.1 from the house and has also threatened to sell the suit land so as to deprive maintenance to respondent No.1. Whether the reporters of the local papers may be allowed to see the Judgment? …2… The suit land is joint Hindu Family and ancestral property, respondent No.1 has a right of maintenance from the suit land. The respondent No.1 has demanded maintenance from appellant, who instead of paying maintenance to respondent No.1 has threatened to dispose of the property. The appellant has no right, title and interest to sell the suit land. The sale deed executed by appellant in favour of respondent No. 2 on 3.8.1989 and sale deed dated 5.9.1990 executed in favour of respondent No. 3 are illegal and do not affect the right of respondent No. 1 on the land comprised in khasra No. 409 measuring 4-19 bighas as well as khasra No. 449/2 measuring 2-10 bighas, situated in village Rohin. The respondent No. 1 has right of maintenance on suit land. The respondent No.1 has prayed for declaration that she has right of maintenance over the land measuring 24-17 bighas, khata-khatauni No. 21/24, land measuring 4-19 bighas comprised in khasra No. 409. She is entitled to maintenance from appellant from aforesaid land. The respondent No.1 has also prayed for permanent prohibitory injunction restraining appellant from alienating, transferring the suit land in any manner and declaring the sale deeds dated 3.8.1989 and 5.9.1990 illegal, void and not affecting the right of maintenance of respondent No. 1. She has also prayed demolition of structures raised by appellant and respondents No. 2 to 4 on the suit land and delivery of vacant possession. She has also prayed injunction against appellant and respondents No. 2 to 4 not to raise any construction on the suit land. 3. The suit was contested by appellant- defendant No.1 and respondent No. 4 by filing joint written statement in which they …3… have taken preliminary objections of maintainability, locus-standi, estoppel, lack of cause of action, non-joinder as well as mis-joinder of necessary parties. On merits, appellant and respondent No. 4 have admitted that respondent No. 1 is legally wedded wife of appellant. It has been pleaded that she was never ousted from the house and respondent No. 1 is getting Rs. 75/- per month maintenance under Section 125 Cr.P.C. The appellant solemnized second marriage with the consent of respondent No.1. The property of appellant is not joint Hindu property nor it is ancestral property. The respondent No. 1 is also owner of land measuring about 7 bighas in village Kuh Mujhwar. The appellant has sold the land to respondents No.2 and 3 for legal necessity. The appellant and respondent No. 4 had denied the claim of respondent No.1. 4. The respondents No. 2 and 3 had also contested the suit by filing joint written statement wherein they took preliminary objections of maintainability, valuation, jurisdiction, lack of cause of action, locus-standi, non-joinder and mis-joinder of necessary parties and estoppel. On merits, they have admitted that respondent is the legally wedded wife of appellant. They have also pleaded that respondent No. 1 is getting Rs.75/- per month maintenance from the appellant under Section 125 Cr.P.C. They defended legality of sale deeds executed by appellant in their favour. They prayed for dismissal of the suit. The respondent No. 1 has filed replication to the written statement of appellant and respondent No. 4 and in the replication she has reiterated her stand which she had taken in the plaint. …4… 5. The learned Sub Judge dismissed the suit on 27.9.1994. The appellant filed an appeal against the decision dated 27.9.1994 by way of Civil Appeal No. 96 of 1994 and the learned District Judge in terms of the statements of the parties had disposed of the appeal on 27.2.1997. The respondent No. 1 filed review dated 18.3.1997 against the judgement, decree dated 27.2.1997, which was registered as Review Application No. 1 of 1997. The learned District Judge vide order dated 25.2.2003 allowed the review application and the consent decree dated 27.2.1997 was set aside and Civil Appeal No. 96 of 1994 was ordered to be re-registered at its old number for decision on merits. Thereafter, vide judgement, decree dated 3.5.2003 in Civil Appeal No. 96 of 1994, the learned District Judge allowed the appeal and set-aside the judgement and decree dated 27.9.1994 passed by learned Sub Judge. The respondent No.1 was held entitled to maintenance at the rate of Rs.500/- per month from appellant. The right of maintenance of respondent No.1 was made charge on the suit land under the ownership and possession of appellant. The alienation of the suit land or any portion thereof after 3.5.2003 by appellant was made subject to charge of maintenance at the rate of Rs.500/- per month of respondent No.1. The appellant has filed appeal against judgement, decree dated 3.5.2003, which has been admitted on the following substantial questions of law:- 1. Whether the first appellate court exceeded its jurisdiction in setting aside its own compromise judgement and decree dated 27.2.1997 on the basis of the alleged fraud and cheating in the absence of such allegation in the application for review? …5… 2. Whether it was permissible for the learned District Judge to have passed a decree which was not prayed for by the plaintiff in the plaint? 6. I have heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. K.D. Sood, learned counsel for respondent No.1 and gone through the record. On behalf of the appellant, it has been submitted that the parties had compromised the appeal and on the basis of compromise the learned District Judge had decided the Civil Appeal No. 96 of 1994 vide judgement and decree dated 27.2.1997. The respondent No.1 filed an application dated 18.3.1997 for enforcing the compromise or in the alternative setting-aside judgement, decree dated 27.2.1997. The learned counsel for the appellant has submitted that learned District Judge vide order dated 25.2.2003 wrongly set-aside judgement, decree dated 27.2.1997. He has submitted that there is no allegation of fraud in the application dated 18.3.1997 on behalf of respondent No.1. The learned counsel for the appellant has also submitted that in setting aside judgement, decree dated 27.2.1997, the learned District Judge has exceeded his jurisdiction. The learned District Judge has granted relief to respondent No. 1, which was not even prayed by her in the plaint. On behalf of respondent No. 1 it has been submitted that review order dated 25.2.2003 has attained finality inasmuch as no appeal was filed against the order dated 25.2.2003. In these circumstances, legality of order dated 25.2.2003 cannot be gone into in the present appeal. It has been submitted that relief granted by the learned District Judge to respondent No.1 is inconsonance with the relief prayed by her in the …6… plaint. It has been submitted that no substantial question of law is involved in the present appeal. 7. The learned counsel for the appellant has made another submission to the effect that appellant may be heard on other substantial questions of law which were framed on behalf of appellant at the time of filing of the appeal and were placed on record alongwith memorandum of appeal. This submission of the learned counsel for the appellant has been opposed by learned counsel for respondent No. 1. This court has admitted the appeal on the substantial questions of law referred above, which were framed at the time of admission and at that time no other substantial question of law emerged nor pointed out. No doubt, the appeal can be heard on other substantial questions of law with the leave of the court, but such leave is to be granted for reasons to be recorded as per proviso to Section 100 read with Rule 2 of Order 42 CPC. The appellant has filed no application seeking leave of the court to urge on other substantial questions of law and oral prayer to grant such leave during the course of hearing of the appeal cannot be granted for the reasons that the other side cannot be taken by surprise. At the time of hearing, the parties are expected to prepare the appeal on the substantial questions of law on which the appeal has been admitted. Therefore, oral prayer to hear the appellant on other substantial questions of law at this stage cannot be granted and is rejected. Substantial question of law No.1. 8. The appellant has filed the appeal against the judgement, decree dated 3.5.2003 passed in Civil Appeal No. 96 of …7… 1994. It has been admitted by learned counsel for appellant during the course of the hearing that order dated 25.2.2003 in Review Application No. 1 of 1997 was not challenged by the appellant by way of separate appeal. The learned counsel for the appellant has submitted that in the grounds of appeal of present appeal the appellant has assailed the order dated 25.2.2003. The reference of order dated 25.2.2003 in the grounds of appeal of present appeal cannot be construed that in fact appellant has filed the appeal against the order dated 25.2.2003. In the present appeal, the appellant has made prayer for setting aside the judgement and decree dated 3.5.2003 and no prayer has been made for setting aside order dated 25.2.2003. Therefore, it is clear that present appeal is not directed against order dated 25.2.2003. The present appeal cannot be considered as an appeal against the order dated 25.2.2003 for other reasons also. The review order dated 25.2.2003 is appealable under O. 43 Rule 1(w) CPC. The non-appealable orders can be challenged in an appeal under O. 43 Rule 1(a) CPC, but the order granting review is appealable under Order 43 (1) (w), therefore, order dated 25.2.2003 was required to be challenged independently by way of an appeal. The present appeal was filed on 15.7.2003 and on that date appeal against the order dated 25.2.2003 was apparently time barred. Thus taken from any angle the present appeal cannot be considered as an appeal against the order dated 25.2.2003. The judgement and decree dated 27.2.1997 were set-aside on 25.2.2003 in Review Application No.1 of 1997. This being the position, the substantial question of law No. 1 does not emerge from judgement and decree …8… dated 3.5.2003. The substantial question of law No.1 is, therefore, decided against the appellant. Substantial question of law No. 2. 9. The learned District Judge has allowed maintenance at the rate of Rs.500/- per month to respondent No.1 and the right of maintenance has been made charge on the suit land under the ownership and possession of appellant. The alienation of the suit land or any portion thereof after 3.5.2003 by appellant has been made subject to the charge of maintenance at the rate of Rs.500/- per month of respondent No.1. I have gone through the plaint with the help of learned counsel for the parties. The learned counsel for the appellant has failed to point out how the judgement and decree passed by the learned District Judge is not inconsonance with the prayer of respondent No. 1 made in the plaint. The perusal of the plaint would show that relief granted by the learned District Judge to respondent No. 1 is not in excess or deviation to the prayer made by the respondent No.1 in the plaint. The substantial question of law No. 2 is thus decided against the appellant. 10. No other point was urged. 11. As a result of the above discussion the appeal fails and the same is accordingly dismissed. July 16, 2008. ( Kuldip Singh ) (Hem) Judge.