Appeal against common Judgements

 

When common judgment is delivered in respect of two or more suits, appeals are to be filed in respect of all the suits which are decided against him. If a party fails to file appeal in respect of one of the suits, the said judgment will be resjudicata in respect of the judgment appealed.

Allahabad High Court

Jai Narain Har Narain And Anr. vs L. Bulaqi Das S/O. L. Munna Lal on 23 September, 1968

Equivalent citations: AIR 1969 All 504

Author: J Sahai

Bench: J Sahai, G Prasad, S Singh, R Prasad, A Kirty

JUDGMENT Jagdish Sahai, J.

1. It would contribute to a clear understanding of the question referred to us for our opinion If the following facts are given:---

Suit No. 6 of 1956 of the Court of the Civil Judge, Gorakhpur, was filed by Lala Bulaki pass (Plaintiff) against (1) M/s. Jai Narain Har Narain, (2) Jai Narain and (3) Har Narain (defendants). In this suit Lala Bulaki Dass, plaintiff, claimed Rs. 22,000/- from the defendants by way of refund of advance money given by him to the defendants along with interest and damages on the allegation that the agreement dated 1-4-1953 between the parties had been breached by the defendants.

2. Suit No. 599 of 1956 of the Munsifs court, Gorakhpur, was filed by Firm Jai Narain Har Narain against (1) Firm Sohan Pal Munna Lal and (2) L. Bulaki Dass. The plaintiff in this case (Firm Jai Narain Har Narain) claimed a sum of Rs. 5,000 from the defendants, Firm Sohan Pal Munna Lal and Bulaki Dass on the allegation that the agreement aforesaid had been breached by them.

3. Suit No. 599 of 1956 was transferred to the court of the learned Civil Judge, Gorakhpur. The two suits were consolidated and disposed of by one common judgment, which is dated 30-4-1957.

4. Suit No. 6 of 1956 was decreed for a sum of Rs. 14,202/7/- against M/s. Jai Narain Har Narain, Jai Narain and Har Narain, Suit No. 599 of 1956 was dismissed.

5. The learned Civil Judge further directed that the main judgment (the one he pronounced) "will remain on the record of suit No. 6 of 1956" and a copy of this be placed on the record of suit No. 599 of 1956 to serve as judgment.

6. In the two suits separate decrees were prepared.

7. M/s. JaJ Narain Har Narain, Jai Narain and Har Narain filed First Appeal No. 307 of 1958 in this Court against the decree of the learned Civil Judge dated 30-4-1957. They, however, did not file any appeal against the decree passed in suit No. 599 of 1956 dismissing that suit,

8. When First Appeal No. 307 of 1958 came for hearing before B.D. Gupta, J. and one of us (A.K. Kirty, J.), a preliminary objection was taken that as no appeal was filed against the decree dismissing Suit No. 599 of 1956, the judgment dated 30-4-1957 had become final and first appeal No. 307 of 1958 stood barred by res judicata.

9. The learned Judges referred the question of res judicata to a Full Bench. This is how the matter has come before us.

10. In each of the two suits eight issues were struck. The same are given below:--

(Suit No. 6 of 1956) "1. Whether plaintiffs purchased any Gur through the Commission agency of the defendants at Basti, if so, how much?

2. What was the rate of commission payable by the plaintiff to the defendants and under what conditions was it payable?

3. Whether the defendant committed a breach of contract in not despatching Gur to Agra according to the plaintiff's instructions if so, its effect?

4. Whether the defendants failed to sell the Gur in question at Chauri Chaura In spite of the instructions of the plaintiff, if so, its effect?

5. . Whether the defendants have sold the goods both of Chauri Chaura and Basti and have misappropriated the sale proceeds? If so, its effect?

6. How much Gur has been despatched by the defendants from Chauri Chaura.

7. To what amount of refund as damages is the plaintiff entitled?

8. To what relief, if any, is the plaintiff entitled?"

(Suit No. 599 of 1956) "1. Whether the suit is Barred by Section 69 of the Partnership Act?

2. Whether the plaintiff purchased 1962 maunds of Gur at Basti for the defendants, if so, whether that was part of the transaction of purchase of Gur at Chauri Chaura, if so, its effect on the suit?

3. Whether the defendants had agreed to pay to plaintiff expenses under head Kha to Na detailed in para 3 of the plaint?

4. Whether the plaintiffs are entitled to claim interest, if so, at what rate and how much?

5. Whether the plaintiff sent 500 maunds of Gur by train?

6. Whether the defendants in May 1953 Instructed the plaintiffs to sell the Gur at Chauri Chaura or to send them by goods train to Agra, if so, its effect on the suit?

7. When did the plaintiffs sell the Gur In suit and what was the price received for it?

8. To what relief are the plaintiffs entitled?"

As the Issues themselves show no issue was common to both the suits.

11. Mr. Jagdish Swarup, who hag appeared for the respondent in the instant first appeal, contends that the matter which has become res judicata is that the defendants-appellants had committed the breach of the agreement dated 1-4-1953 and that question cannot be gone into again in this first appeal.

12. Issue No. 3 of Suit No. 6 of 1956 dealt with the question of the breach of the agreement. The learned Civil Judge recorded the following finding on it:--

"As agents of Bulaki Dass it was the duty of Jai Narain Har Narain to send the goods to Agra as directed by Bulaki Das. If they did not send the goods they committed breach of the contract of agency. The effect of it would be that Jai Narain Har Narain would be liable to compensate to Bulaki Dass for the loss suffered by him by this breach. I decide this issue accordingly."

13. With regard to issues nos. 6 and 7 of Suit No. 599 of 1956 the learned Civil Judge said that "the points covered under these issues were answered under issues nos. 3 and 5 of suit no. 6 of 1956." On these issues he ultimately held that "considering all these things I do not think that any auction was made on 1-2-56 of any Gur of Bulaki Das. Jai Narain Har Narain had created a false pretext to support their claim that Gur of Bulaki Das remained all along with them and also to support the claim of suit no. 599 of 1956. I think that these people sold the Gur in 1953 for Rs. 24452/14/-. These issues are decided accordingly."

14. On issue no. 8 of suit no. 6 of 1956 and issue no. 8 of suit no. 599 of 1956, the learned Civil Judge held as follows;

"In view of the above findings I am of the opinion that Bulaki Das is entitled to a decree for the recovery of Rs. 14,202/7/. Jai Narain Har Narain are entitled to no decree in their favour."

With regard to costs, the learned Civil Judge held that "in view of the fact that both of these parties have come out with stories certain portions of which are false, I think they should bear their costs of these suits."

15. Mr. Jagdish Swarup's contention is that though there was no issue directly on the question of the breach of the contract in Suit No. 599 of 1956, issues nos. 6 and 7 comprehended within them the question as to which party committed the breach.

16. We have already said earlier that the two suits were disposed of by one common judgment. Inasmuch as the instant appeal has been filed against the decree passed In suit no. 6 of 1956 of the Court of the Civil Judge, Gorakhpur, the decision dated 30-4-1957 has been put in jeopardy. It is well settled that where the court is dealing with a suit the only ground on which res judicata can be urged against such a suit would be the provisions of Section 11, C. P. C. and no other. (See L. Janakirama Iyer v. P.

M. Nilkanta Iyer, AIR 1962 SC 633). The same principle would apply to appeals arising out of suits.

17. We have, therefore, to see whether there is any thing in Section 11. C.P.C., which creates the bar of res judicata in the instant appeal. That provision, so far as relevant for our purposes, reads:--

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. -- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. ....."

18. As the words "has been heard and finally decided by such Court" in Section 11, C. P. C., would show it is a decision which creates a bar of res judicata and not a decree. In fact Section 11, C. P. C. does not speak of a decree at all.

19. All that could be done to get rid of the judgment dated 30-4-1957 has been done, as it has been appealed against. For that reason it has not become final. The decree in suit no. 599 of 1956 may have become final not having been appealed against but that would not make the judgment final. The result of consolidating the two suits was to combine the controversies in the two suits into a single controversy and to make the proceedings of the suits a single proceeding. That controversy and that proceeding was concluded by means of the judgment dated 30-4-1957 and inasmuch as that judgment has been put in jeopardy, it (that judgment) cannot operate as res judicata. Before Section 11 C. P. C. can apply, the matter in controversy must have been 'finally decided". Inasmuch as the decision is sub judice in appeal, it cannot be said that the matter has been finally decided.

 20.    The    principle of res    judicata  Is based upon  the maxim that no one shall be vexed    twice    over the    same matter:  
   "In Mt. Lachmi v.  Mt. Bhulli,  AIR 1927 Lah  289  (FB), it was held that "res  judicata   is either     estoppel     by verdict or estoppel by    judgment  (or   record), and, there is BO   such     thing as estoppel by 'decree'.   .....".  The      determining

factor is not the decree but the decision of the matter in controversy. It was further observed that "where two suits, having a common issue, are, by consent of parties or by order of the Court, tried together, the evidence being written in one record and both suits disposed of by a single judgment, can it be said that there have been two distinct and independent trials?"

21. In Narhari v. Shanker, AIR 1953 SC 419 the decision in AIR 1927 Lah 289 (FB) was approved and it was observed as follows:--

"As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah 289 (FB), mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment."

22. It has been contended that the proposition that res judicata is created by a judgment or a decision and not by a decree is no longer tenable in view of the decisions in Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338 and Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332.

23. In AIR 1962 SC 338 (supra), AIR 1953 SC 419 (supra) was cited. The Supreme Court while dealing with Narhari's case observed:--

"The learned Counsel for the appellant relied on the judgment of this court in 1950 SCR 754: AIR 1953 SC 419 in support of his contention that the judgment in Election Appeal No. 7 cannot operate as res judicata in this appeal. That case is distinguishable on facts and is with respect to the interpretation of Section 11 of the Code of Civil Procedure .....

We are therefore of opinion that both in view of the facts of the case and the provision of law applicable to that case, that case can be no guide for determining the question before us in this appeal."

24. In AIR 1966 SC 1332 (supra) the case of AIR 1927 Lah 289 (FB) (supra) was cited before the Supreme Court The learned Judges observed:--

"We need not consider the correctness of these rival views as they raise the question as to whether one decision or the other can be said to be former where the two suits were decided by the same judgment on the same date. This question does not fall to be decided before us and we do not propose to express any opinion thereof. But the Nagpur decision is of no help to the appellant, for in the present case res judicata arises because of earlier decision of the High Court in appeals arising from suits nos. 77 and 91. Panchanada Velan v. Vaithinatha Sastrial,, (1906) ILR 29 Mad 333 and ILR (1927), 8 Lah 384: AIR 1927 Lah 289 (FB) are similar to the Nagpur case and we need express no opinion as to their correctness."

25. Therefore, neither of the two Supreme Court cases mentioned above departs from the view taken by that Court in 1950 SCR 754=AIR 1953 SC 419 (supra). Nor do these two cases overrule ILR 8 Lah 384 = AIR 1927 Lah 289 (FB) (supra) -- or the proposition that the bar of res judicata is created by a judgment or a decision.

26. If the appellants in the instant appeal had also appealed against the decree passed in Suit No. 599 of 1956, and in that appeal the judgment passed by the trial court had been confirmed by this Court then it could be contended that the instant appeal was barred by res judicata because in that case the decision of the trial Court would stand affirmed by this Court and the case would have been similar to AIR 1966 SC 1332 (supra). Tn the present case no appeal had been filed against the decree passed in Suit No. 599 of 1956 and this Court has not affirmed the judgment dated 30-4-1957. It is therefore difficult to see as to how there is a bar of res judicata in this case.

27. The position is that the instant appeal has been filed against the decree passed in Suit No. 6 of 1956 and the decision dated 30-4-1957 having been challenged in this appeal, has become sub judice and is no longer final. The decision having been put to jeopardy, there is no decision left on the basis of which it can be contended that there is in existence a bar of res judicata.

28. Mr. Jagdish Swarup also placed reliance upon Bhagwan Sahai v. Daryao Kunwar, AIR 1963 All 210 (FB). That case is distinguishable as its facts would show. Bhagwan Sahal, the appellant in that case, brought suit No. 37 of 1950 against Smt. Daryao Kunwar for a declaration that he and his son Ch. Sheodan Singn were owners of the properties in suit and for possession. Shortly afterwards he filed Suit No. 42 of 1950 against Smt. Daryao Kunwar and one other person claiming the price of the crop which stood on some Sir and Khudkasht plots on the allegations that Smt. Daryao Kuer had cut and misappropriated the Kharif crop standing on those plots even though she had no right, title or interest in the same.

29. During the pendency of the aforesaid suits, Smt. Daryao Kuer also instituted Suits Nos. 77 and 91 of 1950, against Bhagwan Sahai and his son Ch. Shiv Dan Singh. Suit No. 77 was for the recovery of the price of her share of the crops grown on some Sir and Khudkasht plots. In Suit No. 77 of 1950 Smt. Daryao Kuer claimed the relief of permanent injunction for restraining Bhagwan Sahai and Ch. Shiv Dan Singh from letting out the Sir and Khudkasht plots without her consent.

30. The two suits of Bhagwan Sahai were filed in the Court of the Civil Judge, while the two suits of Smt. Daryao Kuer were filed in the court of the Munsif. Smt. Daryao Kuer's suits were transferred to the "court of the Civil Judge and all the four suits were consolidated and tried together with the consent of the parties and were disposed of by a common judgment, though a separate decree was prepared hi each suit.

31. In all the four suite, five issues were common. One of the common issues related to the respective rights of the parties to the property in suit. The finding of the learned Civil Judge on this common issue was that Smt. Daryao Kuer was entitled to the properties claimed by Bhagwan Sahai. in Suit No. 37 of 1950. The learned Civil Judge, therefore, dismissed that suit. He decreed Suit No. 91 of 1950 in its entirety and Suit No. 42 of 1950 and Suit No. 77 of 1950 in part. He, however, granted to Smt. Daryao Kuer permanent injunction restraining Bhagwan Sahai from letting out the suit plots without her consent.

32. Bhagwan Sahai preferred first appeals Nos. 365 and 366 of 1951 in the High Court against the decrees passed in Suits Nos. 37 and 42 of 1950. He also filed Civil Appeals Nos. 452 and 453 of 1951 in the Court of the District Judge against the decrees in suits Nos. 77 and 91 of 1950. The appeals before the District Judge were transferred to the High Court. This court rejected appeal no. 453 of 1951 on 9th of October 1953 as barred by time. It also dismissed Appeal No. 452 of 1951 on 7th of October 1955 on account of failure of Bhagwan Sahai to apply for translation and printing of the record as required by the Rules of Court. On the basis of the dismissals mentioned above, it was argued that first appeals nos. 365 and 366 of 1951 be dismissed as the main question involved therein, that is, the title of Smt. Daryao Kusr to the suit property had become final on account of dismissal by this Court of appeals arising out of suits Nos. 77 and 91 of 1950. The Full Bench hearing the case distinguished the ease of 1950 SCR 754=AIR 1953 SC 419 (supra) on the ground that in that case there was only one suit and held that First Appeals Nos. 365 and 366 of 1951 were barred by res judicata. In Bhagwan Sahai's case, AIR 1963 All 210 (FB) the High Court had affirmed the decision of the trial Court while dismissing Civil Appeal No. 453 of 1951 as barred by time and Civil Appeal No. 452 of 1951 on the ground of want of prosecution. This case is, therefore, clearly distinguishable.

33. Reliance was also placed upon Kusum Lata v. Kampta Prasad, AIR 1965 All 280. In that case a wife had filed a suit against her husband for judicial separation under Section 10 of the Hindu Marriage Act and the husband had filed a petition under Section 9 of the Act against the appellant for the restitution of his conjugal rights. The proceedings were consolidated and common evidence was recorded in both the cases which were disposed of by a common judgment. The trial court dismissed both the petitions. The wife appealed to the District Judge against the dismissal of her petition, while the husband did not file any appeal against the dismissal of his case. The District Judge dismissed the appeal filed by the wife and she brought a 2nd appeal in the High Court which was heard by Beg J. Beg J., while dealing with the question of res judicata on account of the husband not filing an appeal against the dismissal of his petition observed:--

"The decrees in two proceedings are still separate..... In the present case, the respondent husband has submitted to the decree against him and did not challenge the findings upon which his suit was dismissed.

.....................

The failure of the respondent's suit for restitution of conjugal rights necessarily meant the success of a ground for judicial separation. In my opinion, the requirements of section 11 C. P. C. are fully satisfied in this case. The bar of res judicata, under Section 11 C. P. C. operated against the respondent on patent facts which are apparent from a bare perusal of the judgments of the courts below."

34. With great respect to Beg. J. we are unable to agree with him. The bar of res judicata is not created by a decree, but by a decision. In any case Kusum Lata's case, AIR 1965 All 280 is clearly distinguishable also on facts. There the husband had accepted the decision of the trial Court. In the present case M/s. Jai Narain Har Narain, Jai Narain and Har Narain have not accepted the decision of the learned Civil Judge inasmuch as they have filed First Appeal No. 307 of 1958.

35. The next case on which reliance is placed is Zaharia v. Debia, (1910) 7 All LJ 861 (FB). In that case two suits were filed which were tried together and disposed of by one judgment, but a separate decree was prepared in each of the two cases. An appeal was preferred against the decree in one of the suits only. It was held that the appeal would be barred by the other decree which stood unreversed and was binding upon the appellants.

36. Reliance was also placed upon Dakhni Din v. Ali Ashghar, (1910) 7 All LJ 995. In this case the learned Judge followed the decision of this Court in (1910) 7 All LJ 861 (Supra).

37. Mr. Jagdish Swarup also cited before us Mohammad Mohtashim v. Joti Prasad, AIR 1941 All 277. In that case Lala Joti Prasad had brought Suit No. 48 of 1936 for recovery of a certain sum of money on the basis of a promissory note executed by Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim. Sayid Mohammad and Sayid Mohammad Mohtarim filed Suit No. 488 of 1934 against Lala Joti Prasad under Section 33 of the Agriculturists' Relief Act. The two suits were disposed of by a single judgment. In Suit No. 488 of 1934 the Court came to the conclusion that a certain sum of money was due by the debtors to the creditor and a declaratory decree under Section 33(2) was given to the debtors. In Suit No. 48 of 1936 the trial Court came to the conclusion that the identical sum of money found due in the other case was due to Lala Joti Prasad from the debtors.

38. Sayid Mohammad Mohtashim and Sayid Mohammad Mohtarim filed a first appeal in the High Court, against the decree passed in Suit No. 48, but they did not file one against the decree passed in Suit No. 488 of 1934. A Division Bench of this Court held that the appeal filed in the High Court stood barred by res judicata.

39. With great respect to the learned Judges, who decided the three cases mentioned above, we are unable to agree with them. In our opinion, they proceeded on a wrong assumption that res judicata 9 created by a decree.

40. Cases from other courts were also cited before us.

41. The two cases from Oudh are: B. Shanker Sahai v. B. Bhagwat Sahai, AIR 1946 Oudh 33 (FB) and Ahmad Ali Khan v. Hinga Lal, AIR 1947 Oudh 74. In the first of these two cases the main question referred to the Full Bench was "where two suits between the same parties involving common issues are disposed of by one judgment but two decrees, and an appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent, does the matter decided by the latter decree become res judicata, so that it cannot be reopened in appeal against the former?" The learned Judges constituting the Full Bench answered the question by saying that "the incompetency of the second appeal does not amount to a finding that the judgment is accepted as correct."

42. In the second Oudh case the question was whether a judgment abating a second appeal on the ground that the necessary parties were not before the Court will operate as res judicata as regards questions decided by the first appellate court in a subsequent suit between the same parties. It was held by the Division Bench hearing the case that it would be so barred.

43. It is true that the view taken tn AIR 1946 Oudh 33 (supra) is no longer good law in view of the decision of the Supreme Court in AIR 1966 SC 1332 (supra). The facts of that case were however different from those before us. The other Oudh case is also distinguishable on facts because that is not a case of common judgment in the consolidated cases.

44. The three cases of the Madras High Court that have been cited before us are :-- (1906) ILR 29 Mad 333, Papammal v. Meenammal, AIR 1943 Mad 139 (FB) and Subbiah Udayar v. Karuppiah Odayar, ILR (1965) 1 Mad 57,

45. It seems to be the consistent Madras view that the object of the appeal being in substance to get rid of the very adjudication which is put forward as constituting res judicata that adjudication in the other connected suits, which had become final not being appealed against, should not be held to bar the appeal.

46. Kerala High Court in Sarah Abraham v. P. Abraham, AIR 1959 Ker 75 took the same view that we are taking in this case.

47. In Depal v, Parashwanath Digamber Jain Yidyalaya, AIR 1956 Raj 166, Wanchoo C. J. and Dave J. following the decision in 1950 SCR 754 = AIR 1953 SC 419 (supra) held that it is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. The same view was taken in Bai Chanchal v. Bai Suraj, AIR 1963 Guj 198 by the Gujarat High Court

48. The only decision of the Calcutta High Court that has been cited before us Is Isup Ali v. Gour Chandra Deb, AIR 1923 Cal 496. The view taken In this case is similar to one taken in (1910) 7 All LJ 861 (FB) (supra).

49. For the reasons for which we have disagreed with the view taken in (1910) 7 All LJ 861 (FB) (supra), we disagree from the view taken in the abovementioned Calcutta case.

50. In Sumi Debl v. Pranakrushna Panda. AIR 1956 Orissa 68, the Orissa High Court dissented from the decision in 1950 SCR 754 = AIR 1953 SC 419 (supra) on the ground that not being a decision of the Supreme Court of India it was not binding upon them and held that Section 11, C. P. C. would bar an appeal when In two consolidated suits, disposed of by a common judgment appeal was not filed against the decree passed In one of the suits.

51. We are unable to agree with the Orissa High Court because as already pointed out earlier we are of the opinion that the bar of res judicata is not created by a decree but by a decision or judgment

52. Three cases of the Patna High Court were cited before us. They are: Dhani Singh v. Sri Chandra Choor Deo, AIR 1924 Pat 823, Mrs. Gertrude Oates v. Mrs. Millicent D'Silva. AIR 1933 Pat 78 and Raghunandan Singh v. Smt Soubhagya Sundari Devi, AIR 1948 Pat 191.

53. These cases proceeded on the footing that the bar of res judicata is created by a decree, a view which, with great respect, we have not been able to accept

54. In view of what we have said above we answered the question referred to us by saying that the judgment dated 30-4-1957 has not become final and that first appeal no. 307 of 1958 does not stand barred by res judicata.

A.K. Kirty, J.

55. I fully agree but respectfully desire to add some additional reasons as they occur to me.

56. As held by the Supreme Court in R. Vishwanathan v. Abdul Wajid, AIR 1963 SC 1, the expression "former suit" by the Explanation 1 to Section 11, C. P. C, denotes a suit which has been decided prior to the suit in which the bar of res judicata is raised whether or not it was Instituted prior thereto. In cases of consolidation of suits, heard simultaneously and decided by a common judgment, the expressions, 'former suit' and 'subsequent suit' and the question of the competence of the Court which decided the 'former suit' to try the 'subsequent suit' lose their significance and importance, at least in so far as the trial Court is concerned. If at all, the suit in which the common but leading judgment is pronounced and in the record of which the said judgment is placed as an integral part thereof can be said to be the 'former suit'. So far as the trial Court is concerned, which was competent to try both the suits, a question of res judicata can hardly arise. Even if technically such a question is considered to be capable of being raised, the material decision or finding in the suit, which, as indicated above, is to be treated as the 'former suit', will operate as res judicata in the other suit

57. Literally, Section 11, C. P. C. applies only to suits and not to appeals. Almost all the courts in India, including the Supreme Court, have, however, held that it applies to appeals as well. Now when two or more suits are consolidated and decided by a common judgment and appeals are filed against the decrees passed in all the suits and in the same court no question of res judicata can really arise if the appeals are also heard and decided simultaneously. Difficulties, however, arise when one of such appeals Is either heard and decided separately or for want of prosecution or for some other reason is dismissed and the decision of the Court below stands confirmed as a result thereof. The bar of res judicata will under those circumstances be applicable to the other surviving appeal or appeals. This, as I understand, Is the legal position which emerges out of the decision of the Supreme Court in AIR 1966 SC 1332. In such cases applying the principles that an appeal is a continuation of the suit and that the decision in the "former suit" is the decision which is prior in point of time, little difficulty is to be confronted with, the "subsequent suit" being within the competence of the same Court.

58. The position, however, cannot be the same when appeals arising from the different consolidated suits dp not lie in the same court or courts having equal or co-ordinate jurisdiction. As in the instant case, although two consolidated suits are decided by a civil Judge, because of pecuniary jurisdiction an appeal against the decree in one may lie in the Court of the District Judge, whereas the appeal against the decree in the other may lie only in the High Court. Now, if, under such circumstances, the appeal in the Court of the District Judge is decided first, the decision of the District Judge cannot, in my opinion, operate as res judicata in the appeal in the High Court. The decision of the District Judge may be treated as the decision in the "former suit" but the appeal in the High Court, even if it is treated as the "subsequent suit", certainly is not one which the District Judge is competent to decide. Therefore Section 11 of the Code of Civil Procedure can neither be invoked nor applied. The legal position would be the same whether an appeal which lay in the Court of the District Judge was filed and decided after hearing or dismissed for want of prosecution or such similar reason or It was not filed at all.

59. For the above reasons also, the preliminary objection of the learned counsel for the respondent cannot be accepted and the question referred to this Bench must, as held by my brother, J. Sahai, be answered in the negative.

What action can High Court take against District Judges for passing wrong orders

 

If there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should be initiated.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8950 of 2011

Decided On: 26.09.2019

Krishna Prasad Verma (D) thr. L.Rs. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation:MANU/SC/1364/2019, 2020(2) MHLJ 296

1. In a country, which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District judiciary.

2. Most litigants only come in contact with the District judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District Level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever.

3. Article 235 of the Constitution of India vests control of the subordinate Courts upon the High Courts. The High Courts exercise disciplinary powers over the subordinate Courts. In a series of judgments, this Court has held that the High Courts are also the protectors and guardians of the judges falling within their administrative control. Time and time again, this Court has laid down the criteria on which actions should be taken against judicial officers. Repeatedly, this Court has cautioned the High Courts that action should not be taken against judicial officers only because wrong orders are passed. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order.

4. No doubt, there has to be zero tolerance for corruption and if there are allegations of corruption, misconduct or of acts unbecoming a judicial officer, these must be dealt with strictly. However, if wrong orders are passed that should not lead to disciplinary action unless there is evidence that the wrong orders have been passed for extraneous reasons and not because of the reasons on the file.

5. We do not want to refer to too many judgments because this position has been laid down in a large number of cases but it would be pertinent to refer to the observations of this Court in Ishwar Chand Jain v. High Court of Punjab & Haryana and Anr. MANU/SC/0198/1988 : (1988) 3 SCC 370, wherein this Court held as follows:

14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the Appellant was wholly unjustified and the complaints made by Shri Mehlawat and others were motivated which did not deserve any credit. Even the vigilance Judge after holding enquiry did not record any finding that the Appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments.

6. Thereafter, following the dicta laid down in Union of India and Ors. v. A.N. Saxena MANU/SC/0228/1992 : (1992) 3 SCC 124 and Union of India and Ors. v. K.K. Dhawan MANU/SC/0232/1993 : (1993) 2 SCC 56, this Court in P.C. Joshi v. State of U.P. and Ors. MANU/SC/0431/2001 : (2001) 6 SCC 491 held as follows:

7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the Appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the Appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case and A.N. Saxena case that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the Appellant in this case.

7. In Ramesh Chander Singh v. High Court of Allahabad and Anr. MANU/SC/1021/2007 : (2007) 4 SCC 247, a three-judge Bench of this Court, after considering the entire law on the subject, including the authorities referred to above, clearly disapproved the practice of initiating disciplinary proceedings against the officers of the district judiciary merely because the judgment/orders passed by them are wrong. It was held thus:

12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, The High Court must take extra care and caution.

xxx xxx xxx

17. In Zunjarrao Bhikaji Nagarkar v. Union of India this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power Under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level.

8. No doubt, if any judicial officer conducts proceedings in a manner which would reflect on his reputation or integrity or there is prima facie material to show reckless misconduct on his part while discharging his duties, the High Court would be entitled to initiate disciplinary cases but such material should be evident from the orders and should also be placed on record during the course of disciplinary proceedings.

9. Coming to the facts of this case there are two charges against the Appellant, who was a judicial officer. The charges are as follows:

CHARGE-1

You, Sri Krishna Prasad Verma while functioning as Additional Distt. & Sessions Judge, Chapra granted bail to M/s. Bishwanath Rai, Sheo Nath Rai and Pradeep Rai on 11.7.2002 in S.T. No. 514 of 2001 arising out of Chapra (M) Khatra P.S. Case No. 453/2000 registered Under Section 302/34 Indian Penal Code notwithstanding the fact that the bail petitions of Bishwanath Rai was earlier rejected by this Hon'ble Court vide order dated 27.3.2001 and 4.7.2001 passed in Cr. Misc. No. 34144/2000 and 15626/2001 respectively, that of Sheo Nath Rai vide order 13.2.2001 and 26.11.2001 passed in Cr. Misc. No. 3387/2001 and Cr. Misc. No. 30563/2001 respectively and that of Pradeep Rai vide order dated 28.2.2001 passed in Cr. Misc. No. 3599/2001.

The aforesaid act on your part is indicative of some extraneous consideration which tantamounts to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act unbecoming of a Judicial Officer.

CHARGE-2

You, Sri Krishna Prasad Verma while functioning as Additional District and Sessions Judge, Chapra with an intent to acquit Raju Mistry, the main Accused in N.D.P.S. Case No. 15/2000 arising out of Revealganj P.S. Case No. 137/2000 (G.R. No. 1569 of 2000) registered Under Sections 22, 23 and 24 of the Narcotic Drugs and Psychotropic Substances Act, 1985 closed the proceeding in great haste resulting in acquittal of Raju Mistry, who was charged of driving a Jeep bearing No. W.B.C. 4049 carrying 90 Kg. Charas, without exhausting all coercive methods to record the statement of the Investigating Officer of the case as there is no proof on the record to show that the non-bailable warrant issued against the said Investigating Officer was ever served on him.

The aforesaid act of yours is indicative of some extraneous considerations which tantamounts to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act of unbecoming of a Judicial Officer.

10. As far as the first charge is concerned, a major fact, which was not considered by the enquiry officer, the disciplinary authority as well as the High Court was that the Additional Public Prosecutor, who had appeared on behalf of the State had not opposed the prayer of the Accused for grant of bail. In case, the public prosecutor does not oppose the bail, then normally any Judge would grant bail.

11. The main ground to hold the Appellant guilty of the first charge is that the Appellant did not take notice of the orders of the High Court whereby the High Court had rejected the bail application of one of the Accused vide order dated 26.11.2001. It would be pertinent to mention that the High Court itself observed that after framing of charges, if the non-official witnesses are not examined, the prayer for bail could be removed, but after moving the Lower Court first. The officer may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. It would be pertinent to mention that the enquiry officer has not found that there was any extraneous reason for granting bail. The enquiry officer virtually sat as a court of appeal picking holes in the order granting bail.

12. It would be important to mention that it seems that later it was brought to the notice of the Appellant that he had not taken note of the order of the High Court while granting bail on 11.07.2002. Thereafter, he issued notice to all the three Accused on 23.08.2002 i.e. within less than two months and cancelled the bail granted to all the three Accused on 11.07.2002. If he had made the mistake of not seeing the whole file, on that being brought to his notice, he corrected the mistake. After the Appellant cancelled the bail and the Accused were again arrested, they again applied for bail and this bail application was rejected by the Appellant on 18.12.2002.

13. After rejection of the bail application of the Accused, two out of three Accused moved the High Court. The High Court granted bail to one of the Accused and the bail application of the other was rejected, not on merits but on the ground that he did not disclose the fact that he had earlier moved the High Court for grant of bail. This itself is clear indicator of the fact that probably even the order passed by the Appellant is not an incorrect one.

14. Coming to the second charge, which is under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS". On 18.07.2002 the Appellant, a Special Judge, closed the evidence of the prosecution which resulted in material witnesses not being examined and consequently the Accused was acquitted. As far as this allegation is concerned, the enquiry officer on the basis of the statements of two clerks of the Court has made lengthy observations that the Appellant did not send any communication to the Superintendent of Police, the District Magistrate and other authorities to ensure the production of the witnesses. According to the enquiry officer, this being a serious matter, the evidence should not have been closed and the Appellant should have made efforts to approach the senior officials to get the witnesses produced. The Code of Criminal Procedure or the NDPS Act do not provide for any such procedure. It is the duty of the prosecution to produce the witnesses. Even in this case, interestingly, the Public Prosecutor had made a note on the side of the daily order-sheet that he is unable to produce the witnesses so the evidences may be closed. We fail to understand how the Appellant has been hanged whereas no action has been taken or recommended against the Public Prosecutor concerned. We are constrained to note that the enquiry officer, while conducting the enquiry, has noted, while considering the arguments of the delinquent official, that he had raised a plea that he closed the evidence because the Public Prosecutor had made the statement, but while holding the Appellant guilty of misconduct no reference has been made to the statement of the Public Prosecutor.

15. We may also note that the case of the Appellant is that he had given 18 adjournments for production of the witnesses to the prosecution in the NDPS case. Such a judicial officer is between the devil and the deep sea. If he keeps on granting adjournments then the High Court will take action against him on the ground that he does not dispose of his cases efficiently and if he closes the evidence then the High Court will take action on the ground that he has let the Accused go scot-free. That is not the purpose of Article 235 of the Constitution of India. That is why we again repeat that one of the responsibilities of the High Court on the administrative side is to ensure that the independence of the District judiciary is maintained and the High Court acts as a guardian and protector of the District judiciary.

16. We would, however, like to make it clear that we are in no manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.

17. In view of the above discussion, we allow the appeal, set aside the judgment of the High Court and quash all the orders passed against the delinquent officer. He is directed to be given all consequential benefits on or before 31.12.2019. The appeal is allowed with costs of Rs. 25,000/-.

Notarisation - Documents - Procedures

Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. of 2008 in Suit No. 1094 of 2007

Decided On: 17.12.2008

H.K. Taneja and Ors. and Keshavrao J. Bhosle

Vs.

Bipin Ganatra

Hon'ble Judges/Coram:

R.S. Dalvi, J.

1. Not on board. By consent, taken on board and argued by all the Advocates.

2. The applicant has applied under Order 40, Rule 1(2) of the Code of Civil Procedure. The applicant must show that he was in possession of the property such that the plaintiffs or the defendant had no present right to remove him.

3. The applicant has relied upon an Agreement dated 22.2.2001 to show his initial entry into the suit premises. This is a Leave and Licence Agreement executed by one Urmila Shah, who was the widow of one L.D. Shah, who owned the suit flat and who settled it upon a trust in favour of the plaintiffs with a provision that his widow would live in the suit flat for her life-time. The settlor as well his widow have since expired. This Agreement is not in favour of the applicant but his daughter one Mitali Sawant. It is a licence for 11 months which has expired by efflux of time. It is in respect of the permission to occupy one room in the suit flat with the common use of the bathroom, toilet and kitchen by the licensee. The licensee is to hand over possession of the premises on the expiration of licence. Though it goes without saying, it states that after the termination of the licence the occupation of the licensee would be deemed to be that of a trespasser.

4. The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified.

5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized.

6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr. MANU/MH/0030/1992 : AIR1992Bom149 , this Court considered, inter alia, the essence of notarization of documents by persons identified before notary and the prescribed rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document, compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus:

Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof.

The contents of Rule 11, its purpose and object as well as the consequences of non-compliance of the rules have also been considered in Para-11 of that judgment. Reference has been made specially to Rule 11(2) of the rules which provides that every notary shall maintain notarial register in prescribed form No. XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document.

7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the applicant upon proving the notarial act. It is for the applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.

8. In the case of J.G. Hegde v. R.D. Shukla MANU/MH/0786/2003 : AIR2004Bom55 , this Court once again considered the notarized writing which was styled as "Affidavit-cum-Indemnity Bond". The relevant notarial register got produced by the Court did not reveal the required entry. The purpose of Rule 11(2) of the Notaries Rules requiring every notarial act to be serially numbered in the register to be maintained by the notary was considered. The dual purpose served by such a practice was set out. It was observed that one was to identify every document with reference to the serial number and the other was to prevent execution of anti-dated documents by inserting an entry in between two successive entries which are serially numbered.

The documents which are notarized do not even show the serial number or the register number under which they are registered and entered. Nevertheless, the notary, if called upon by the executant to prove the notarization, would be bound to produce the relevant register of the relevant date. Only the production of such a register would show whether or not the document was indeed notarized on the date it is stated to be executed.

9. There have been numerous cases of anti-dated documents shown to be notarized other than the one that came up before the Court in the aforesaid two cases. Hence it cannot be put past any executant to produce the document shown to be notarized on a given date without substantiating that fact through the mandatorily required statutory procedure. No document thrown in the face of the Court as notarized document can, therefore, prevail without the accompanying notarial registration of entry. Of course, even if that is shown, the fact that the document has remained unregistered when it creates an interest in an immovable property would remain to be admissible in evidence. But at-least the Court could be satisfied prima facie about its execution. The document produced by the applicant without showing compliance of the Notaries Act and Rules bears no worth and deserves to be fully rejected.

10. It may be mentioned straightway that the absence of registration as well as the required procedure for notarization would make the document so inadmissible in evidence as to not allow the applicant to base his case upon such a document. The object of registration as well as notarization is lost if a document of the kind can be looked into or considered by the Court, even prima facie, to take the contents as correct.

11. The applicant has also relied upon a declaration of the deceased Urmila Shah, dated 17.5.2006 (who was stated to be 92 years old then), who declared about the relationship with the defendant in this Suit who came to be inducted by her in the suit premises to take care of her during her lifetime and who has resided therein since. Just as the defendant, who was her nephew, was "helping her", the applicant is stated to have been helping her and her nephew. Though the declaration does not make fine reading and its precise purport is undecipherable, the applicant seeks to rely upon the reference to his name in paragraph 3 at page 2 of the document. The applicant also relies upon the last paragraph in the document stating that the deponent had executed the declaration without pressure, fraud or coercion on the date of its execution and that it was binding upon herself, her family members and the defendant also. She admittedly expired 4 months thereafter, on 22.9.2006.

12. The declaration does not confer any right or title upon any one. It merely states the course of events that have transpired and about how some parties litigate. Aside from the name of the applicant in the document, it shows little else. Though the declaration sets out the acts of some parties who litigate and shows apprehension of future litigation and gives notice that it was declared by her free consent and would be binding on several persons, including herself, it does not mention about the Leave and Licence Agreement executed by the deponent herself in favour of the daughter of the applicant 5 years prior thereto under the aforesaid Agreement dated 22.2.2001.

13. Mr. Madon argued that this declaration has been notarized which carries some weight. The declaration suffers from the same ill of absence of the prescribed procedure of notarization.

14. The applicant has further relied upon another Agreement dated 14.10.2005 between the defendant and the applicant. This Agreement is executed on 2 stamp papers of Rs. 50/- each issued on 13.10.2005. They are issued not in the name of the defendant or the applicant as mandatorily required, but in the name of the Advocate J.K. Nathani (who has shown his address at Borivli in the rubber-stamp on the earlier document of 22.2.2001) and one P.V. Dalvi, M.S.S.I.D.C. Ltd. That is a Licence Agreement granting licence of the entire flat in favour of the applicant for 11 months. The period of the licence has been left blank. Deposit of a large amount of Rs. 2,52,5000/- is purportedly taken as security deposit. Aside from a receipt executed by the defendant, there is nothing else to substantiate the payment made. The entire amount is presumably paid in cash. Though the applicant has relied upon his bank passbook to show various other entries, this entry admittedly does not find place in the passbook and no other material is produced to show the payment made under any cheque. This Licence Agreement executed as late as in October 2005 has also remained unregistered. It is also similarly incorrectly notarized. Rule 11 of the Notaries Rules are not followed. Even the revenue stamps showing the notarial fees/charges are not affixed. The notarization is rather meaningless. Aside from the stamp of the notary, the Agreement shows nothing to evince its execution. Even the presence of the Advocate to interpret and explain the Agreement or to introduce the party to the notary is absent. It suffers from the same malaise which led the Court to reject the notarial document in the case of Prataprai (supra).

15. It may be mentioned that each of the notarial stamps on each of the aforesaid 3 documents is illegible. Why the parties went to those notaries, who appear to be at different places, cannot be understood. The Advocates who identified the parties before the notary in 2 of the 3 Agreements are in Borivali (East) and at the Esplanade Court, Mumbai. The declaration of the deceased Urmila Shah, who lived at Peddar Road, is surprisingly identified by Advocate in the Esplanade Court before a notary whose address is not shown. In the Leave and Licence Agreement dated 22.2.2001, she has been identified by another Advocate from Borivali, Mumbai.

16. Mr. Madon argued that though the documents are not registered, they are notarized and if the notarization is not accepted, the Court will be rejecting the identification and the explanation of the Advocates who have stamped those documents. The Leave and Licence Agreement in favour of the applicant is not identified by any Advocate. A mere notarial stamp thereon without reference to the serial number on the notarial register, therefore, requires the Court to reject the notarization. The other 2 documents are not documents of title of the applicant. The Agreement dated 22.2.2001 is in favour of his daughter who is not the applicant before the Court. The identification of the deceased in that document is by an Advocate from Borivali. It is wondrous how he identified an old lady then of about 87 years, living in Peddar Road. The identification of the deceased in the document dated 17.5.2006 is by yet another Advocate. The identification creates no confidence. It is not in terms of the requirement of law and legal procedure. None of these documents, therefore, shows the possession of the applicant in the suit premises as claimed by him arising from under these documents and cannot even be looked into.

17. It is contended on behalf of the plaintiffs that this case is not of total lack of possession simplicitor. It is a case of mala fides, mischief and fraud played upon the Court by the defendant and the applicant in concert and collusion. The plaintiffs' Advocates have painstakingly undertaken the effort of obtaining inspection and copies of certain litigations between the applicant and the defendant in the Small Causes Court. The plaintiffs have given notice to the applicant's Advocate as well as the defendant's Advocate to produce the papers and proceedings in certain 3 Suits filed in the Small Causes Court. None is produced by either of them. The plaintiffs have applied for and produced certified copies thereof.

18. Mr. Bookwala took me through the result of that research. In certain correspondence that took place between the parties prior to the filing of this Suit, the defendant had promised to vacate the suit flat by his letter dated 1.11.2006 written to the plaintiffs, Exhibit-X to the plaint. To scuttle giving up the said vacant possession as agreed by him, a Suit has been filed by Mitali, the daughter of the applicant against the defendant on 23.1.2007 being L.C. Suit No. 46 of 2007 claiming sole and exclusive possession of the suit flat. The Constituted Attorney of the defendant is her own father, the applicant herein. On 25.4.2007, the Suit came to be settled by the applicant's daughter and the defendant filing Consent Terms under which the defendant agreed not to dispossess her without following due legal process.

19. Another Suit came to be filed by the defendant against the daughter of the applicant on 13.2.2008 in which Consent Terms came to be filed by the parties on 8.8.2008 under which the applicant's daughter claimed no interest in the suit premises. Mr. Bookwala pointed out that the Advocate for the defendant in this Suit has been shown as the Advocate for the daughter of the applicant in the Suit in the Small Causes Court, Bombay. The Constituted Attorney, who verified that Plaint, is the Constituted Attorney of another occupant of the flat, one Farida Galabai, who has similarly claimed to be in juridical possession in another Notice of Motion taken out in this Suit being Notice of Motion No. 3965 of 2008. The Advocate for the daughter of the applicant in that case is the Advocate of that party in yet another Suit filed in the Small Causes Court filed by that other occupant being R.A.D. Suit No. 1739 of 2007 against the defendant. On 27.11.2007, Consent Terms were filed in that Suit between that occupant and the defendant, under which tenancy in favour of that occupant was confirmed by the defendant!! She claims, inter alia, the part of the suit premises claimed by the applicant herein.

20. The 2 Cross Suits between the defendant on one hand and the applicant and/or his daughter on the other show the transparent collusion between the parties and the desire to outreach the Court based upon the position that then suited the parties.

21. Aside from these litigations with regard to the suit flat itself, the plaintiffs have relied upon other proceedings to show the actual address of the applicant in Court records. In a Suit being Summary Suit No. 3501 of 2007 filed by the applicant against the defendant for recovery of Rs. 5 Lakhs with interest on a Promissory Note filed as late as on 3.11.2007, his address is shown to be at Banganga, Walkeshwar and not at the suit premises. The above Suit is filed on 25.3.2007. It can be seen from the Plaint and proceedings in the above Summary Suit that even in November 2007, 8 months after the filing of this Suit, the applicant was not in the suit premises.

22. Upon the filing of the Suit, an ad interim application came to be made by the plaintiffs on 4.4.2007 in Notice of Motion No. 1370 of 2007 taken out by the plaintiffs. An ad interim injunction came to be granted against the defendant, who was present, in terms of the statement made by him that he shall not create any third party rights in the suit premises. It is precisely after that order of injunction that the defendant has inducted the applicant in the suit premises. In his Affidavit-in-reply to Notice of Motion No. 1370 of 2007 filed in June 2007, the defendant stated about the presence of the applicant in the suit premises. Thereafter on 29th August, 2008 when the plaintiffs' initial Notice of Motion No. 1370 of 2007 was heard, the defendant's Counsel stated to Court that no person was residing in the suit flat. The Court Receiver was directed to take symbolic possession of the suit flat. Thereafter that order came to be modified upon an application made by the defendant's Advocate that the statement of his Counsel that no person was residing in the suit flat was incorrectly recorded and that the applicant and his wife are the family friends staying in the suit flat which came to be recorded by the Court on 4.9.2008.

23. In January 2008, a criminal complaint came to be filed by the applicant against the defendant in the Metropolitan Magistrate's Court at Girgaum, Mumbai under sections 156(111) and 420 of the Indian Penal Code (I.P.C.) alleging that the defendant was trying to oust the applicant though the applicant paid the defendant Rs. 1,75,86,000/-out of total consideration of Rs. 6.5 Crores for the sale of the suit flat.

24. In March 2008, a complaint came to be filed by the defendant against the applicant shown to be residing at Banganga, Walkeshwar, in the Court of the Chief Additional Metropolitan Magistrate at Girgaum, Mumbai, inter alia, under Section 420 of the I.P.C. and alleging, inter alia, that the suit flat belonged to the trustees and that there was no question of selling the suit flat to the applicant on receiving consideration of Rs. 1,75,86,000/- alleged to have been paid entirely in cash. It is seen from the aforesaid dates that though the applicant was never in possession of the suit flat in any capacity prior to the filing of the Suit, the defendant in order to scuttle his own admission of handing over vacant possession of the suit flat to the plaintiffs as the trustees as per his letter dated 1.11.2006 sought to file collusive Suits and sought to put up the applicant in the suit premises after the filing of the Suit.

25. It appears that the parties fell out upon whatever understandings that they may have had. Hence both the parties filed criminal complaints also after filing of the Suits. In view of the defendant having inducted the applicant in the suit premises after the filing of the Suit and after the ad interim order of injunction obtained by the plaintiffs against the defendant on 4.4.2007, the plaintiffs sought the appointment of the Receiver and of being put in possession as the Receiver's agent when Notice of Motion No. 1370 of 2007 reached hearing. It appears that by that time the relationship between the defendant and the applicant had come to pass. The defendant, who had colluded with the applicant pending the Suit, no longer desired to have the applicant in the suit premises. The defendant , who was personally present in Court when the Notice of Motion reached hearing on 8.10.2008, made a statement to Court that he shall have the persons who are his relatives and friends removed from the suit premises. He also stated to Court that if they did not vacate the suit premises, the Court Receiver may forcibly obtain possession from them. The Court observed that the defendant abided by his statement made on 4.4.2007 in the Notice of Motion when the initial ad interim order had come to be passed. The defendant clarified that none other than he was entitled to reside in the suit premises. Hence the Court Receiver was directed to allow the defendant to remain in possession of the suit premises and obtain possession from any other person who may be found in the suit premises, with Police assistance, if required.

26. The Court Receiver having proceeded to execute that order, the applicant filed this application claiming to be in possession since prior to the Suit. The two Suits in the Small Causes Court show what transpired from 23.1.2007 when the applicant's daughter (not the applicant) claimed to be in possession, to 8.8.2008 when the Consent Terms were filed in the second Suit in which she claimed no interest in the suit flat. The applicant has changed his mind. He seeks to rely upon the same document on which his daughter sued and settled.

27. The applicant must show juridical possession in the suit premises. No party can be allowed to remain in possession of the suit premises upon obtaining unlawful possession thereof. The applicant has sought to show his juridical possession by virtue of the aforesaid documents being 2 Licence Agreements executed by the widow of the settlor Urmila Shah and by the defendant and the declaration executed by the said widow. None of these documents can be relied upon, produced in Court or considered by the Court to allow the applicant to be in possession as none is admissible in evidence. The very purpose and object of the Registration Act would be frustrated and the very object of having such documents registered would be frustrated if documents such as these are allowed to be relied upon by the parties to show that the parties to the Suit have no present right to remove those parties claiming to be in "possession". Indeed there may be no case in which Court Receiver could successfully obtain possession from total and rank strangers and parties inducted after the filing of the Suit to set at naught the order of appointment of Court Receiver for protection of the plaintiffs' property, if a party upon such documents would be entitled to show the Court his "possession".

28. Whatever be the collusive Suits filed between the parties whilst they were thick friends and whatever be the frivolous complaints made against one another once their relationship soured, the independent legal proceeding by the applicant himself in this Court being Summary Suit No. 3501 of 2007 would clinchingly show the claim of possession of the applicant herein. In that independent proceeding filed 8 months after the filing of this Suit, the applicant himself has shown his address to be at Banganga, Walkeshwar. That seals his fate. The possession claimed by the applicant is neither lawful, nor juridical. The applicant was also not in any actual possession as on the date of the Suit. The applicant has been inducted in the suit premises after the filing of the Suit and after the initial ad interim order came to be passed on 4.4.2007 and in fact later than November 2007 by executing anti documents. Though the infamous idea of defrauding the plaintiffs may have occurred to the defendant prior to the filing of the Suit and after he himself agreed to vacate the suit premises to have caused the applicant's daughter to file the collusive Suit against him on 23.1.2007 being L.C. Suit No. 47 of 2007, which he settled with her a mere 3 months thereafter, there have been no proceedings between the defendant and the applicant himself and no documents produced by the applicant himself to satisfy the Court about his lawful possession in the suit premises. Even the very first document, anti-dated and fabricated as it is, relied upon by the applicant is not in his favour but in favour of his daughter.

29. It is of some importance to note that though the applicant claims to have been in possession of the suit premises since as early as in February 2001 during the lifetime of the deceased Urmila Shah herself, the applicant has not produced absolutely any documentary evidence by way of public documents to evidence his possession in the suit premises for as long as 6 years prior to the filing of the Suit.

30. The application is dishonest and mischievous.

The Notice of Motion is dismissed with costs, fixed at Rs. 5,000/-.