BALDEV SINGH A

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SURINDER MOHAN SHARMA AND ORS

NOVEMBER I, 2002

[V.N. KHARE, ARIJIT PASAYAT AND S.B. SINHA, JJ.]

Code of Civil Procedure, I 908--Section 96-Appeal-Locus to file- Scope of-Property dispute between parties-In Court proceedings one party stating that he had two wives-Other party complaining of bigamy to the c employers of the husband and second wife--Suit of first wife decreed declaring the first marriage to have been dissolved-Appeal against the decree by complainant-Permissibility of-Held, not permissible as the complainant had no locus standi to file appeal-He being a third party had nothing to do with relationship of the party litigant and his first wife-Appeal maintainable only D at the instance of a person aggrieved by and dissatisfied with the judgment and decree.

During Court proceedings in respect of a dispute regarding property between appellant and respondent No.I, appellant deposed that he ha<I two wives. On the basis of his statement, respondent No.I made complaints E to the respective employers of the appellant and his second wife for having married second time while first wife was living. Proceedings were initiated.

First wife filed a suit on the ground that her marriage was dissolved with the appellant by reason of a memorandum of customary dissolution of marriage. The suit was decreed declaring the marriage to have been dissolved.

Respondent No. I filed a revision application before High Court, wherein he was permitted to file appeal against the order in suit filed by the first wife of appellant.

In appeal to this Court, the question for consideration was whether G Respondent No. I had locus-standi to question the judgment in the suit filed by first wife of the appellant.

Disposing of the appeal, the Court

HELD: I. Respondent No.I herein cannot be said to have any locus H ''

A standi to prefer an appeal against the judgment and decree passed by the

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Civil Judge. As a logical corollary of the said finding, it must necessarily be held that the single Judge of the High Court was not correct in disposing the civil revision petition by making an observation which affected the interest of the appellant and that too without giving an opportunity of

B hearing to him. (50-D-EI

2. Against a decree, an appeal would be maintainable in terms of Section 96 C.P.C. Such an appeal, however, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the instant :ase, the dispute between the parties was in c relation to a property. The first Respondent, save and except, inter alia, making complaints against the appellant and his wife to their respective employers purported to be relying on or on the basis of the statements made by the appellant had nothing to do with the status of the first wife of the appellant.

3. The first respondent in relation to his disputes with the appellant herein has been pursuing his remedies in appropriate proceedings. What would be the effect of the said judgment and decree in a departmental proceeding is required to be determined by the appropriate authorities. Only because a departmental proceeding was initiated against the appellant on the complaint of respondent No.1, he, only thereby, cannot be said to have E any locus to prefer an appeal. A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. It is not the contention of respondent No.1 that in the event the said judgment and decree is allowed to stan.d, the same will cause any personal injury to him or shall affect his interest otherwise. Dissolution of F marriage of the appellant and his first wife would also have no representation on the property in suit. The effect of the statements made by the appellant in the second suit shall have to be considered by the courts and the departments concerned on their own merits. (49-H; 50-A-CI

4. 'Locus' of a person to prefer an appeal in a matter of the nature G in the instant case is vital as the right of privacy of two spouses would be interfered thereby. The Court cannot enlarge the scope of 'locus' in a case of this nature where the parties are fighting litigations. Allegations made by the first respondent in his revision application does not disclose any cause of action for maintaining the said application nor does it state as to

H how and in what manner he would be prejudiced if the impugned judgment is allowed to stand. In the aforementioned premise bona fide of , '

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the first respondent was also required to be determined by the High Court. A Having regard to the facts and circumstances of the case, the application filed by the first respondent before the High Court was not a bona fide one but was filed in furtherance of the pending disputes between the parties. [48-H; 49-A-B[

5. It may be true that a decree obtained by fraud is a nullity. But B the question as to whether a decree has been obtained by fraud or not is again a question which must be raised by a person who is interested in the subject matter thereof and not at the instance of a person who is a busy body. The appellant and his first wife have a right of privacy. Such a right of privacy extends not only to the matrimonial home but also to C the matter of dissolution of a marriage. A third party who has nothing to do with relationship of the appellant and his first wife cannot be permitted to intrude into their privacy by preferring an appeal only on one or more of the grounds, as stated by the first respondent in his application before the High Court. [49-F-G]

CIVIL APP ELLA TE JURISDICTION Civil Appeal Nos. 7162- 7163 of 200:.

From the Judgment and Order dated 6.11.2000 of the Punjab and Haryana High Court in C.R. No. 3918 of 2000.

Hardev Singh, R.C. Srivastava, S.C. Paul, Ms. Reema Chopra, Gurmeet Singh, Ms. Rekha Pandey, Amar Vivek, Jasbir S. Malik for S.K. Sabbarwal, Ms. Kawaljit Kochar, Ms. S. Mahajan, C.L. Basha!, D. Jha, for Ms. Kusum Chaudhary, Shamsher Singh and Ms. Chanchal Goel, for Mrs. Rani Chhabra for the appearing parties.

The Judgment of the Court was delivered by.

S.B. SINHA, J. Leave granted.

One Ajay Kumar, said to be a brother of a property dealer, instituted

a suit for permanent injunction against the First Respondent herein in G respect of a House No. HM-14, Phase IL Mohali. The said suit was dismissed as withdrawn on 14th December, 1991. Allegedly, in relation to the said property, the First Respondent entered into an agreement to sell dated 23rd June, 1990 with the father of the appellant (since deceased). He expired on 5th January, 1991. The First Respondent herein thereafter filed a suit for possession against the aforementioned Ajay Kumar treating H

A him as his tenant and the appellant as the sub-tenant. He also allegedly refused to honour the agreement to sell earlier executed by him in favour of father of the appellant. While deposing in the second suit, the appellant herein made the following statements in cross-examination:-

"My first wife is Sarbjit Kaur and my second wife is Paramjit B Kaur - whenever I have been posted at Chandigarh I have been staying with my wife Paramjit Kaur. She is in service in Director Cultural Affairs, Punjab, Sector-38, Chandigarh as Librarian. I have two children from Paramjit Kaur."

Relying on or on the basis thereof, the First Respondent herein made C complaints to the employers of the appellant and his wife Paramjit Kaur on the ground that they have contracted a second marriage during the life time of the first wife of the appellant; whereupon departmental proceedings were initiated both against the appellant as also his wife, Paramjit Kaur.

A suit, however, was filed by the aforementioned Sarbjit Kaur.in the D Court of the Civil Judge (Junior Division), Ludhiana, marked as Civil Suit

No. 696 of 1999. inter alia, on the ground that the appellant had divorced her in the year 1982 by reason of a memorandum of customary dissolution of ntarriage. The said suit was decreed declaring the said marriage to have been dissolved with effect from 27th January, 1982. Relevant portion of the E said judgment and decree dated 21th July, 2000 reads as under:-

"Therefore in view of the decision of the Hon 'ble High Court of Punjab and Haryana in case title as Smt. Sudarshan Kaur v. Major Manmohan Singh Dhatt, in (1978) PLR 598 the case of plaintiff is decreed and it is declared that marriage between the parties was solemnised on 26.10.1976 stands dissolved w.e.f. 27.1.1982 by virtue of a memorandum of customary dissolution by the parties and defendant further restrained from interfering with the personal affairs of the plaintiff, parties are left to bear their own cost. Decree sheet be prepared."

Questioning the said judgment and decree, the First Respondent herein G filed an application before the High Court of Punjab and Hayana at Chandigarh purported to be under Article 227 of the Constitution of India, which was marked as Civil Revision N0.3918 of 2000, contending that as he was not a party in the said suit, he .::annot prefer an appeal there against. In the said revision application, the First Respondent as regards his locus standi to maintain H the said application alleged:

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"That the petitioner has the locus standi to maintain the present A petition inasmuch as he been harassed and troubled a lot by Respondent No.3. \vho has illegal grabbed the house of the petitioner in connivance \Vith one person Ajay Sharn1a- Petitioner's earlier tenant The petitioner has not been paid any rent for the house for the last over I 0 years.

Respondent No. 3 has forged and fabricated some documents in connivance with several persons including a stamp vendor of Ludhiana. B Though the said matter is already a subject matter of the civil suit.

But the fact remains that the entire life of the petitioner has been ruled by Respondent no. 3 petitioner's wife is bed-ridden for last two years due to the shock arising from the illegal grabbing of house by Respondent No. 3, and the total family life and mental peace of the C petitioner has been shattered. Petitioner has been facing spate of malicious and motivated and ill found petitions at the behest of Respondent no. 3 and even his Advocate has not been spared by him in launching malicious prosecution by Respondent No. 3. Whosoever witness appeared to depose against Respondent No. 3, almost of all of those witnesses were tormented, tortured intimidated and troubled D by Respondent No. 3, almost of all of those witnesses were tormented, tortured intimidated and troubled by him and false cases were filed against them by Respondent No. 3. So much so, Respondent no. 3 spelt venom against the Ld. Presiding Judge, dealing with the case, due to which even the case was transferred from the said court and later E contempt notices have already been issued to him by this Hon'ble Court. All these atrocities and illegalities committed by Respondent No. 3, have compelled the petitioner to seek the indulgence of this Hon'ble Court in the matter of launching appropriate departmental proceedings against him by the respondents. Therefore, since the petitioner has a direct cause of action in the matter involving F Respondent no.3, who has grabbed his house illegally, hence, petitioner is aggrieved of the illegal acts of Respondent no.3. Since the authorities were trying to act in accordance with the law in deciding representations moved by the petitioner and now these are being scuttled by him in cornivance with the other non-official respondent, hence, the G petitioner is tiling the present petition in this Hon'ble Court requesting the Hon 'ble Court to set aside the impugned judgment and decree as the same is illegal and arbitrary and an abuse of process of the court."

A learned Single Judge of the High Court by reason of the impugned judgment disposed of the said application directing :- H

"After hearing the counsel for the petitioner, the present revision stands disposed of with the observations that let the petitioner S.M.

Sharma may file an appeal in the competent court of jurisdiction within 30 days from today challenging the judgment and decree dated 21st July, 2000, irrespective of the fact that he was not a party to the suit. Prima facie, S.M. Sharma is aggrieved by the judgment and decree dated 21st July, 2000 because his case is that this decree has been obtained by Sarbjit Kaur, first wife of Baldev Singh, in order to circumvent the action which is likely to the taken by the department against Baldev Singh and his second wife Paramjit Kaur."

C It is not in dispute that pursuant to or in furtherance of the said observations, Respondent No. 1 preferred an appeal in the Court of the District Judge, Ludhiana. The parties thereafter filed review applications in the High Court. The review application filed by the appellant was also dismissed by order dated 15th January, 200 I.

D The only question which arises for consideration in these appeals against the aforementioned order is as to whether Respondent No. 1 had any locus standi to question the said judgment and decree dated 21 st July, 2000 passed by the Civil Judge (Junior Division), Ludhiana.

The statements made in his revision application, in our considered E opinion, do not disclose any cause of action so as to confer on him 'locus standi' to maintain the same.

There is no dispute that as against a decree, an appeal would be maintainable in terms of Section 96 of the Code of Civil Procedure. Such an appeal, however, would be maintainable only at the instance of a person F aggrieved by any dissatisfied with the judgment and decree. As noticed hereinbefore, the dispute between the parties was in relation to a property.

The First Respondent herein, save and except, inter alia, making complaints against the appellant and his wife to their respective employers purported to be relying on or on the basis of the statements malle by the appellant herein G during cross-examination in the aforementioned su1t, had nothing do with the status of Sarbjit Kaur and the appellant herein as spouses or otherwise.

'Locus' of a person to prefer an appeal in a matter of this nature is vital as the right of privacy of two spouses would be interfered thereby. The court cannot enlarge the scope of 'locus' in a case of this nature where the parties H are fighting litigations. Allegations made by the First Respondent is his revision

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application does not disclose any cause of action for maintaining the said A application nor does it state as to how and in what manner he would be prejudiced ifthe impugned judgment is allowed to stand. In the aforementioned premise bonaflde of the First Respondent was also required to be determined by the High Court. Having regard to the facts and circumstances of the case, we are of the opinion that the application filed by the First, Respondent B before the High Court was not a bona fide one but was filed in furtherance of the pending disputes between the parties.

In the instant case, it is not necessary for us to determine the question as to whether the judgment in question is a judgment in personam or a judgment in rem. Herein, the status of the parties is not in question and such C judgments ordinarily cannot be said to be judgments in rem. Even if the said judgment is a judgment in rem, the respondent herein could not have questioned the same as he cannot be said to be aggrieved thereby. In that view of the matter, the question as to whether in the instant case, the Civil Court, Ludhiana, had any jurisdiction to pass the decree in question, takes a back seat.

It is now a well-settled principle of law that an ex parte decree is as good as a, contesting decree unless it is set aside. An ex parte decree can be set aside by the court passing it or by an appellate court only at the instance of a person aggrieved thereby.

It may be true that a decree. obtained by fraud is a nullity. But the question as to whether a decree has been obtained by fraud or not is again a question which must be raised by a person who is interested in the subjectmatter thereof and not at the instance of a person who is a busy body. The appellant and the aforementioned Sarbjit Kaur have a right of privacy. Such

F a right of privacy extends not only to the matrimonial home but also to the matter of dissolution of a marriage. A third party who has nothing to do with relationship of the appellant and the said Sarbjit Kaur cannot be permitted to intrude into their privacy by preferring an appeal only on one or more of the grounds, as stated by the First Respondent in his application before the High Court and as quoted supra. None of the said grounds, in our considered G view, confers locus on the First Respondent to prefer an appeal against the decree passed by the learned Civil Judge.

The First Respondent in relation to his disputes with the appellant herein has been pursuing his remedies in appropriate proceedings. What would be the effect of the said judgment and decree in departmental proceeding is H

A required to be determined by the appropriate authorities. Only because a departmental proceeding was initiated against the appellant on the complaint of Respondent No. I, he, only thereby, cannot be said to have any locus to prefer an appeal as has been contended by Mr. Srivastava. A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned. It is not the contention of Respondent No.

B 1 that in the event the said judgment and decree is allowed to stand, the same

will cause any personal injury to him or shall affect his interest otherwise.

Dissolution of marriage of the appellant and his first wife would also have no repercussion on the property in suit. As noticed hereinbefore, the effect of the aforementioned statements made by the appellant in the second suit C sball have to be considered by the courts and the departments concerned on their own merits.

We are, therefore, of the opinion that Respondent No. 1 herein cannot be said to have any locus standi to prefer an appeal against the judgment and decree passed by the learned Civil Judge. Ludhiana. As a logical corollary of D the said finding, it must necessarily be held that the learned Single Judge of the High Court was not correct in disposing the civil revision petition by making an observation which .affected the interest of the appellant and that too without giving an opportunity of hearing to him.

It is not correct to contend that the appellant herein has no locus standi E to prefer these appeals as an order adverse to his interest has been passed by the High Court. It is also not correct to contend that the appellant can raise his contentions in appeal insofar as he cannot be permitted to fight out a matter which, in our opinion, is not maintainable at the instance of Respondent No. I.

F Admittedly several other proceedings are pending between the parties, but fr is not necessary to refer thereto having regard to the short question involved in the matter.

For the reasons mentioned hereinabove, th-e impuged orders cannot be G sust<.ined which are set aside. The appeals are disposed of accordingly. In the facts and circumstances of the case, the appellant herein is also entitled to costs quantified at Rs. 5,000.

K.K.T.

Appeals disposed of.