1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.4551 of 2004 (O&M) Date of Decision: 25th Nov.2009 Ram Phal ...Appellant Versus Smt.Santosh Kumari ....Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr. D.S.Bali, Senior Advocate along with Mr.Amandeep Saini, Advocate for the applicant/appellant. Mr. V.K.Jain, Senior Advocate along with Mr.Prashant Vashist Advocate for the respondent. * * * Sabina,J.(Oral) Plaintiff filed a suit for declaration and the same was decreed by the Civil judge(Sr.Divn.)Jhajjar, vide judgment and decree dated 14.12.2001. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by the Additional District Judge, Jhajjar vide judgment and decree dated 14.10.2004. Savitri Devi has filed this appeal along with an application for granting leave to appeal against the judgments and decrees of the courts below although she was not a party in the suit. Brief facts of the case, as noticed by the lower court in paras 2 to 3 of its judgment read as under: “2. Brief facts are like this: That the respondent/plaintiff 2 has filed a civil suit for declaration on the grounds that she was owner in possession of the agricultural land comprised in khewat No.166/158, khatoni No.215, rect.No.112, killa Nos.14/2/2/,17,24 rect. No.115, killa No.1/2, rect.No.116, killa no.4, 5/1, 5/2 and 6 and plot No.419/2 total measuring 44 kanals 17 marlas situated within the revenue estate of village Beri, Tehsil Jhajjar(hereinafter called as 'suit land'). The appellant/defendant asserted his right over the suit property due to the decree dated 23.4.1982 passed in suit No.204 by the Court of Sub Judge, Jhajjar in case titled “Ramphal Versus Santosh Kumari”. The said decree dated 23.4.1982 has been challenged by way of this suit on the grounds that the parties to the suit were not the members of the same family, so, question of family settlement does not arise; that the respondent/plaintiff never appeared in the Court nor engaged any counsel nor filed any written statement or made statement in the Court relinquishing her right in favour of the appellant/defendant; that there had been no pre-existing right of the appellant/defendant. However, it is alleged that he might have obtained her signatures as she had confidence and faith in him because the appellant/defendant was prosecuting the suits on her behalf; that the property in dispute was worth more than Rs.100/-, so it requires registration and without it, it is a nullity; that the decree was never acted upon; that the respondent/plaintiff never 3 relinquished the possession of the suit land and prayed that the said decree be declared null and void and also prayed for the decretal of the suit. 3. On the other hand, the appellant/defendant has contested the suit on the grounds that the suit is not maintainable in the present form; that the respondent/plaintiff has no locus-standi to file the suit and there is no cause of action against the appellant/defendant; that the suit is barred by limitation; that the respondent/plaintiff is estopped from filing the suit by her own act and conduct and the suit is barred by resjudicata and alleged that the decree dated 23.4.1982 was suffered by the respondent/plaintiff and the same is legal and valid as she has appeared in that suit, engaged her counsel and filed the admitted written statement and also made statement in the Court and prayed for the dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial court: 1.Whether the plaintiff is owner and in possession of the suit land? OPP. 2. Whether the judgment and decree dated 23.4.1982 passed in civil suit no.204 is illegal, null and void and not binding on the rights of the plaintiff?OPP. 3. Whether the suit is time barred?OPD. 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD. 5. Whether the suit of the plaintiff is not 4 maintainable in the present form?OPD. 6. Whether the suit is bad for resjudicata?OPD. 7. Relief.” Learned counsel for the applicant/appellant Savitri Devi has submitted that Savitri Devi had not been impleaded as a party in the suit although she was a necessary party. Applicant/appellant had moved an application under Order 41, Rule 20 read with Order 1, Rule 10, Section 107/151 of the Code of Civil Procedure before the Additional District Judge for being impleaded as a party and for permission to join the appeal pending before the learned District Judge. However, the said application had not been decided by the Additional District Judge. Learned counsel for the respondent, on the other hand, has submitted that the applicant/appellant had no cause of action to file the appeal. The impugned judgments and decrees were not binding on the applicant/appellant as she was not a party to the litigation. After hearing the learned counsel for the parties, I am of the opinion that the application filed by the applicant/appellant for permission to file the appeal is liable to be dismissed. Applicant/appellant Savitri Devi had filed an application under Order 41, Rule 20 of the Code of Civil Procedure before the Additional District Judge on the ground that she was owner of the half share in the property which had been transferred to Ramphal. The said share of the applicant/appellant had been declared vide judgment and decree dated 17.08.1995 passed in Civil Suit No.86 of 25.04.1994 titled as “Santosh 5 Kumari Vs.Savitri”. The applicant/appellant had also filed a civil suit to set aside the judgment and decree passed in Civil Suit Ramphal Vs. Santosh Kumari. A perusal f the record of the lower Appellate Court reveals that the application filed by the applicant/appellant Savitri Devi under Order 41, Rule 20 of the Code of Civil Procedure had been dismissed vide order dated 14.10.2004. The learned Additional District Judge held as under: “5. The applicant has alleged herself to be necessary party alleging her ½ share in the suit property. She has further alleged that a Civil appeal No.85 dated 25.4.1994 titled Santosh Versus Savitri, she was declared to be owner of ½ share of the suit property and she be allowed to join as necessary party. But it is settled law that the applicant is not a party in the trial court where the suit was filed. Then how she is bound by the judgment of the trial court. Similarly, she is not a party to the appeal and how she is bound by the judgment of the appeal. Not only this for the sake of arguments, if she was declared owner of ½ share of the suit property in an appeal no.86 dated 25.4.1994 titled Santosh Kumari Vs. Savitri then why she has not filed the suit earlier or why she has not joined as party when the suit was lying pending in the trial court. It seems that the application has been given just to delay the decision of the appeal. 6. During the course of arguments, the learned counsel 6 for the applicant has also relied on Devinder Singh Versus Captain Harjit Singh 2002(3) Latest Judicial Reports,131 wherein it is held that where a person who is not a party to a suit can file appeal with the leave of the appellate court against the order or decree passed therein if it adversely affects him. Similarly, the learned counsel for the applicant has also relied on Mohini Mohan Dawan Versus Sris Chandra Hati and others AIR 1978 Calcutta,434, wherein it is held that there are inherent powers with the court to add party. He has further relied on State of Punjab (now Haryana) and others Versus Amar Singh and another, AIR 1974 Supreme Court, 994, wherein it is held that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. 7. I have gone through these authorities. There is no dispute regarding the observations made in these authorities. In all these authorities, it is the right given to the applicant to file appeal against the order, judgment and decree in which his rights are affected. In none of the authorities, there is a case for joining the applicant as party. So, these authorities are not applicable to the case of the applicant. 8. As discussed above, the application is given just to 7 delay the decision of the appeal. The same being without any merit deserves dismissal and accordingly, the same is hereby dismissed.” Thus, the application filed u/o 41, Rule 20 C.P. C was dismissed on the ground that the application had been filed simply to delay the decision of the appeal. In case the applicant/appellant had been declared owner of the half share of the suit property in appeal No.86 dated 25.04.1994, then she should have filed a suit earlier or should have joined as a party before the trial court. Since the applicant/appellant was not a party to the litigation, the judgment of the trial court was not binding on her and similarly, she would not be bound by the decision passed in appeal. The said order has not now been challenged by the applicant/appellant. In the facts and circumstances, the applicant/appellant cannot be allowed to challenge the impugned judgments and decrees of the courts below. Moreover, the learned Additional District Judge while dismissing the application of the applicant/appellant under Order 41, Rule 20 of the Code of Civil Procedure has held that the impugned judgments and decrees would not be binding on the rights of the applicant/appellant. No ground for interference is made out. Accordingly, this appeal is dismissed. 25th Nov.2009 (SABINA) Seema-II Judge