Civil Revision No. 6049 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Revision No. 6049 of 2008 Date of decision: 11.02.2009. Mauji Ram and another ...Petitioners Versus Ram Kali and others ...Respondents 2. Civil Revision No. 6050 of 2008 Mauji Ram and another ...Petitioners Versus Ram Kali and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. C.B.Goel, Advocate, for the petitioners in both the petitions. Mr. Ashish Aggarwal, Advocate for respondent- Sandeep Bhatia in both the petitions. ***** S.D.ANAND, J. On a verbal plea, notice of motion was issued only qua the respondent no.7-Sandeep Bhatia. Facts beyond the pale of controversy and, even otherwise apparent from the record, are as under:- Churia, predecessor-in-interest of petitioners Mauji Ram and Sarupa @ Ram Sarup sold the ancestral property in favour of respondents No. 3 to 6 ( Ram Dia, Ram Dass, Chatri and Haria). Mst. Birmati (respondent no.2) filed a Civil Suit (No.713 of 1987) for pre-emption which Civil Revision No. 6049 of 2008 -2- **** was decreed in her favour. Thereafter, Churia aforementioned filed a civil suit qua that very property. The decretal of that suit was conceded by the respondent no.2-Mst. Birmati. In the Civil Suit ( No.247 of 1998) filed by Mauji Ram and Sarupa @ Ram Sarup, they applied for grant of a declaration invalidating the initial sale of the property made by Churia in favour of respondents no. 3 to 6. Also applied for was a decree for a declaration that the preemption decree in favour of respondents No.1 and 2 (Ram Kali and Birmati) was null and void. As a consequential relief, the plaintiffs-petitioners also applied for ( a decree for) joint possession of that property and for the restraint of defendants/respondents (Ram Kali and Birmati) from alienating that property. Petitioners Mauji Ram and Sarupa @ Ram Sarup also filed another civil suit (No.253 of 1998) to obtain the invalidation of the two sale deeds vide which Churia had sold the land under reference to Ramdia and others. The plaintiffs-petitioners filed that suit for a declaration (with consequential relief of permanent injunction) on the plea that they are governed by Hindu Law and that Churia could not have sold that property as it was coparcenary/joint hindu family property in his hands qua the plaintiffs-petitioners. They also applied for a declaration that the decree obtained by Mst. Birmati in Civil suit No. 713 of 1987 was void and nonest. In both the suits aforementioned, respondent Sandeep Bhatia was arrayed as party. He contested both the suits as Churia had sold that property to him in the meantime. Ram Kali and Birmati defendants in both the civil suits (No.247 of 1998 and 253 of 1998) and also Sandeep Bhatia was also proceeded exparte in both the aforesaid suits. Ram Kali and Birmati filed appeals against judgments and Civil Revision No. 6049 of 2008 -3- **** decree in both the civil suits. Sandeep Bhatia did not file any appeal against the judgments and decree in both the civil suits (No.247 of 1998 and 253 of 1998). However, he filed an application under Order 9 Rule 13 C.P.C. for setting aside of the judgment and decree passed in Civil Suit No. 247 of 1998. The two appeals filed by Ram Kali and Birmati were dismissed by the learned Ist Appellate Court as time barred. The plea for condonation of delay raised by Ram Kali and Birmati did not find favour with the learned Additional District Judge who, vide order dated 31.7.2006, dismissed the applications under section 5 of the Limitation Act for condonation of delay and also the appeals as time barred. The application filed by Sandeep Bhatia under Order 9 Rule 13 C.P.C. to obtain the setting aside of the exparte judgment and decree in Civil Suit (No. 247 of 1998) was dismissed by the learned Trial Court. He filed an appeal against that order which was dismissed on merits by the First Appellate Court. Birmati and Ram Kali filed revision petitions (No. 2435 of 2007 and 2810 of 2007) against the order dated 31.7.2006 vide which the Ist Appellate Court had declined to condone the delay and dismissed their appeals as time barred. Sandeep Bhatia also filed a revision petition (No. 446 of 2007). All the three revision petitions were disposed by a Coordinate Bench (Vinod K. Sharma, J.) vide order dated 21.12.2007. The Bench observed that the disposal thereof by a common judgment was in order as common questions of law and fact were involved. The revision petitions were allowed and the appeals were remanded to the learned Ist Appellate court for a decision on merits of the case. It is thereafter that Sandeep Bhatia respondent filed an Civil Revision No. 6049 of 2008 -4- **** application under Order 1 Rule 10 C.P.C. (in both the appeals) for being transposition as an appellant. The application was allowed by the learned First Appellate Court, vide impugned order dated 24.8.2008. I have heard Mr. C.B.Goel, learned counsel for the petitioners and Mr. Ashish Aggarwal, learned counsel for the respondent-Sandeep Bhatia and have carefully gone through the record. Mr. C.B.Goel, learned counsel appearing on behalf of the petitioners in both the petitions, argued that the transposition was invalid on the face of it in view of the fact that Sandeep Bhatia did not, at all, file an application under Order 9 Rule 13 C.P.C. to obtain the setting aside of the exparte judgment and decree passed in Civil Suit No. 253 of 1998 and he also did not file an appeal against that judgment and decree. In that view of things, the argument proceeded, the judgment and decree in Civil Suit No. 253 of 1998 had attained finality and there was no way the plea raised by him for transposition as the appellant could have been allowed by the Learned Ist Appellate Court. In the other petition, the point of view advocated on behalf of the petitioners is that Sandeep Bhatia having taken recourse to the remedy available to him under Order 9 Rule 13 C.P.C., could not be said to be competent to file an appeal against the impugned judgment and decree passed in Civil Suit No. 247 of 1998 and allowance of his request, for transposition as an appellant, would amount to allowing him to be an appellant in a case in which he could not have competently filed an appeal. Qua the other petition, it was also argued that the appeal filed by Sandeep Bhatia against the dismissal of his application under Order 9 Rule 13 C.P.C. having been dismissed by the Ist Appellate Court on merits, he cannot be heard to argue in favour of transposition as an appellant Civil Revision No. 6049 of 2008 -5- **** because that appeal of his had been dismissed on merits and not on a plea of limitation and there was, thus, no question of his being allowed to avail of orders passed by the Coordinate Bench of this Court in Civil Revision No.446 of 2007. The arguments raised thereby was that it had been inadvertently stated that the facts and circumstances in three revision petitions were same. The averment in the context is that, in fact, there was no similarity of facts and circumstances pleaded by Sandeep Bhatia with the plea put forward by Birmati and Ram Kali inasmuchas the appeal in the former's case had been dismissed on merits; whereas the two appeals filed by Birmati and Ram Kali had been dismissed as time barred. Insofaras the simultaneous resort to two remedies, one under Order 9 Rule 13 C.P.C. and other by filing an appeal, is concerned, the law was authoritatively laid down by the Apex Court in Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and others 2008 (2) Apex Court Judgments 720 (S.C.). In that case, the Apex Court relied upon the following observations made by that Court only on Bhanu Kumar Jain Vs. Acchana Kumar and another 2005 (1) Apex Court Judgments 121 (S.C.) :- “When an exparte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the exparte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the exparte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation Civil Revision No. 6049 of 2008 -6- **** appended to Order 9 Rule 13 of the code a petitioner under Order 9 Rule 13 would not be maintainable. However, explanation I appended to the said provision does not suggest that the converse is also true.” It was made clear by the Apex Court in Bhanu Kumar Jain's case (supra) that f an appeal filed by a party (against whom an exparte judgment and decree had been granted) was dismissed on merits, that party would not be entitled to file a plea under Order 9 Rule 13 C.P.C. However, if a plea under Order 9 Rule 13 C.P.C. at the hands of that party is dismissed, it can validly file an appeal against that exparte judgment and decree. The resistance offered to the maintainability of the appeal at the hands of the respondent (Sandeep Bhatia) is held to be unsustainable. It is, thus, apparent that Sandeep Bhatia could have competently filed a plea under Order 9 Rule 13 C.P.C. and also availed of the remedy by filing of an appeal. This observation is being made in the context of the plea advocated on behalf of the petitioners that transposition of Sandeep Bhatia as an appellant would permit him to be an appellant, though he could not have, at all, competently filed an appeal against the judgment and decree in Civil Suit (No. 247 of 1998) in which he had filed an application under Order 9 Rule 13 C.P.C. Though it is apparent from the record that the two appeals filed by Ram Kali and Birmati had been dismissed by the Ist Appellate Court as time barred and the appeal filed by Sandeep Bhatia against the rejection of his application under Order 9 Rule 13 C.P.C.for the setting aside of the exparte judgment and decree in Civil Suit (No. 247 of 1998) had been dismissed on merits, it cannot be wished away that Sandeep Bhatia had been impleaded as a party in both the appeals filed by Ram Kali and Civil Revision No. 6049 of 2008 -7- **** Birmati against the judgments and decree in Civil Suits (No.247 of 1998 and 253 of 1998). In both the cases aforementioned, Sandeep Bhatia was an interested party as the plea raised by him was that Churia had sold that property to him in the meantime. Birmati and Ram Kali were seeking invalidation of that very judgments and decree which was also under challenge at the hands of Sandeep Bhatia. The trio did, thus, have a common interest. The grounds thereof were obviously different. Nonetheless, the commonness of interest as between them cannot be denied. It was held by the Apex Court in Kiran Tandon Vs. Allahabad Development Authority and another AIR 2004 Supreme Court 2006 that transposition of a party can be competently ordered by an Court to effectuate complete adjudication of the question involved in an appeal and in the interest of justice. That the appeal is a continuation of the suit cannot possibly be disputed in view of there being plethora of law in support thereof. If any authority, in support thereof, is required, reference may be made with advantage to Rachakonda Narayana Vs. Ponthala Parvathamma and another 2001 (2)PLJ 420. Even otherwise, a Full Bench of the Apex Court held in Smt. Saila Bala Dassi Vs. Smt. Nirmala Sundri Dass and another AIR 1985 Supreme Court 394 that the Court can, if necessary, even act suo-motu either under Order 1 Rule 10 or in its inherent jurisdiction and order transposition of a party. In that case, the transposition of an appellant was ordered as respondent. For the very reasoning recorded by the Apex Court, the impugned transposition was proper particularly in the peculiar facts and circumstances of the case when it has been noticed by the Ist Civil Revision No. 6049 of 2008 -8- **** Appellate Court that there was commonness of interest between Sandeep Bhatia and other appellants and the former is, by all means, an interested party in the case. The impugned order is categorical to the effect that Sandeep Bhatia is an interested party in the adjudication of the controversy in the suit as a purchaser and the appellants Birmati and Ram Kali have common interest in having raised a claim for the invalidation of the impugned judgments and decree passed in both the Civil Suits (No. 247of 1998 and 253 of 1998). In view, thus, of the facts aforementioned, it is apparent that Sandeep Bhatia had been impleaded as a party to both the appeals filed by Birmati and Ram Kali, that the trio have a common interest and that the allowed transposition would not, in any manner, act to the detriment of two appellants (Birmati and Ram Kali). In the light of the fore-going discussion, it is held that both the petitions are denuded of merits and are ordered to be dismissed. February 11, 2009 (S.D.Anand) Pka Judge