Plaintiff is in appeal questioning the correctness and legality of the judgment and decree passed in R.A.No.45/2009 by the III Additional District Judge, Dharwad dated 31/08/2010. The parties are referred to as per their rank before the Trial Court.
2. Brief facts of the case leading to filing of this appeal are as under:
Appellant instituted a suit in O.S.No.150/2008 on the file of III Additional Civil Judge (Sr.Dn.) Dharwad for the relief of declaration and consequential relief of perpetual injunction in respect of suit property. It was contended, in the suit that plaintiff has become absolute owner in possession of suit property on the strength of an unregistered sale deed executed by the father of the defendant namely late Sri. Anantappa Mahadevappa Mulagund on 05.09.1971 and when the plaintiff sought for change of his name in the revenue records pursuant to earlier representation which had not been done by the Tahsildar inspite of representation given, Tahasildar gave the endorsement on 01.08.2008 directing the plaintiff to file a civil suit and obtain appropriate order from the competent Court of law, plaintiff filed the suit in question and sought for relief stated herein above. It is further contended that defendants have not appeared in the suit even after due service of suit summons and defendants came to be placed exparte and after recording evidence of the plaintiff on 20.12.2008 suit came to be decreed on the same day by the Judgment and Decree of the Trial Court.
3. Defendants being aggrieved by the above judgment and decree passed by the Trial Court preferred R.A.No.45/2009 before III Additional District Judge, Dharwad and Smt. Shamala daughter of deceased Anantappa Mulagund, who was not a party to the suit (O.S.No.150/2008) also filed an appeal in R.A.No. 113/2009 before the same Court. It was contended before the Lower Appellate Court that suit summons were not served on the defendants and it was taken by the Trial Court that summons was duly served on defendants. It was also contended that on account of non-service of suit summons defendants could not appear and contest the matter before Trial Court and as such Judgment and Decree passed by the Trial Court was liable to be set aside. It was also contended that alleged sale deed dated 05.09.1971, which was unregistered sale deed was inadmissible in evidence and as such Trial Court ought not to have decreed the suit. It was also contended that suit schedule property having been purchased by the defendants’ father in the year 1966 for a total consideration of Rs. 4,000/- under a registered sale deed dated 17.06.1996, it could not have been sold by the deceased for Rs.99/- in the year 1971. As such it was contended that unregistered sale deed dated 05.09.1971 was forged document and these contentions came to be refuted by the plaintiff before the Lower Appellate Court contending that it was specifically mentioned in unregistered sale deed that consideration was less than Rs.100/- and as such the document in question was not required to be registered and suit summons were duly served on defendant No.2 and he being eldest male member of the family defendants had to prove that suit summons was not duly served on other defendants. Insofar as other contentions raised by the defendants (respondents) in the appeal before Lower Appellate Court it is contended that some ought not to have been considered by the Lower Appellate Court since no written statement was filed by defendants. It is also contended that once document is marked, it was not open for the Lower Appellate Court to examine the correctness or otherwise of such marking and as such the order of remand passed by the Lower Appellate Court is erroneous and as such appellant seeks for allowing of the appeal and setting aside the order of remand.
4. The Lower Appellate Court had formulated following points for its consideration:
1. Whether the Learned Trial Judge has committed any error in decreeing the suit of the plaintiff in O.S.No.150/2008?
2. In the circumstances of the case, whether it is justifiable to dismiss the suit or remand the matter for full dressed trial and dispose of the case, on merits, in accordance with law?
3. What order?
Lower Appellate Court answered both the points in the affirmative and in favour of the defendants and against the plaintiffs and allowed appeal and remanded the matter back to the Trial Court for being adjudicated afresh by exercising its power under Order 41 Rule 23-A of CPC. It is this order of remand which is questioned by the plaintiff in this appeal.
5. Heard Sri. V.R. Datar, Learned Advocate appearing for the appellant and Sri.Mallikarjunswamy Hiremath, Learned Advocate appearing for the respondent.
6. Sri.V.R.Datar, Learned Advocate appearing for the appellant would contend that Lower Appellate Court having given a finding that suit summons was duly served it was not justified in examining merits of appeal and as such there is error in entertaining the appeal on merits and deciding the same. He would also contend that once the Lower Appellate Court formed an opinion about suit summons having been duly served and accepted the same it ought not to have embarked upon examining and enquiring on merits of the case by examining the judgment and decree passed by the Trial Court. He would contend said exercise having been done by the Lower Appellate Court is erroneous and these two facts namely the finding of the Trial Court holding summons having been duly served and at the same time considering the appeal on merits would not go together and as such the order of remand is liable to be set aside. He would further elaborate his submissions by contending that the Lower Appellate Court has examined marking of unregistered sale deed dated 05.09.1971 as Ex.P3 by Trial Court and has held that said document was inadmissible. He would contend as per Section 35 of Karnataka Stamp Act when an instrument has been admitted in evidence it cannot be questioned at a later stage. He would contend that Lower Appellate Court committed an error by examining about marking of the said document namely the sale deed dated 05.09.1971. Since it was not objected and in support of this proposition he relies upon following judgments:
1. GOPAL DAS AND ANOTHER vs. SRI THAKURJI AND OTHERS1.
2. M.D., H.S.I.D.C. and OTHERS vs. M/s. HARI OM ENTERPRISES and ANR2.
7. He would also contended that, when consideration shown in document is less than Rs.100/- said document does not require registration and admittedly in the sale deed dated 05.09.1971 consideration that has been mentioned is Rs.99/- and as such document of sale deed dated 05.09.1971 that has been rightly marked does not call for interference. He would also contend that document in question being more than 30 years old presumption has to be drawn as to its existence and validity and in this regard he contends Section 90 of the Evidence Act would come into play.
8. He would also contend that finding of the Lower Appellate Court holding that summons was duly served having not been questioned by the defendants by filing an appeal are not stopped from contending that said finding is erroneous or to contend that Lower Appellate Court ought not to have given such a finding. On these grounds he contends that substantial question of law as formulated in appeal memorandum would arise for consideration in this appeal and request the Court that same may be formulated for being considered and adjudicated.
9. Per contra,Sri Mallikarjunaswamy Hiremath, Learned Advocate appearing on behalf of the respondent would support the judgment and decree passed by the Lower Appellate Court to the extent of remand order made by it and he would contended that when defendant’s father has purchased the suit schedule property in the year 1966 for a consideration of Rs.4,000/- their father could not have sold the property to the plaintiffs in the year 1971 for a consideration of Rs.99/- which itself suggests that document propounded by the plaintiffs is a forged document. He would draw the attention of the Court that documents produced and marked by the plaintiff before the Trial Court namely endorsement issued by the office of the Tahasildar, Dharwad dated 15.01.2008 which came to be marked as Ex.P2 to contend that 15.01.2008 was a general public holiday on account of “Makarasankranti” as such execution of Ex.P-2 itself is doubtful and the cause of action pleaded is based on said endorsement would clearly go to show that plaintiff has forged the document and as such the judgment and decree passed by the Lower Appellate Court is rightly set aside by Lower Appellate Court which does not call for interference.
10. He would further contend that a finding has been given by the Lower Appellate Court about service of suit summons on the basis of order sheet of the Trial Court and by drawing a inference therefrom. He would submit to ascertain the factual matrix and to establish contention of plaintiff is false an application viz., I.A.No.VII was filed under Section 151 of CPC by the defendants to call for production of original summons from Trial Court and said application was allowed. However, summons were not produced and an explanation was received from the official of Trial Court that summons were not traceable. As such he would contend finding of the Lower Appellate Court that “summons was duly served” on defendants is erroneous and liable to be set aside and prays for holding that summons was “not duly served”. On these grounds he prays for dismissing of the appeal by reversing that finding of Lower Appellate Court partly on this issue.
11. Having heard the Learned Advocates appearing for the parties. The following points that arise for my consideration.
1. Whether in a Miscellaneous Second Appeal filed under Section 104 C.P.C. against an order of remand passed under Order 41 Rule 23 A substantial question of law is required to be formulated by this Court or not? And, if it is in the affirmative whether substantial questions of law formulated in the memorandum of appeal is required to be formulated in this appeal and is required to be answered?
2. Whether the order passed by the Lower Appellate Court in R.A.No.45/2009 dated 31.08.2010 suffers from any legal infirmities and if so, whether it requires to be set aside?
3. What order?
12. Re question No.1: The appellant has filed this appeal invoking Section 104 read with Order 41 Rule 23A of CPC. When this fact was brought to the notice of the Learned Advocate appearing for the appellant and asked as how his appeal is maintainable under these provisions he was fair enough to concede that present appeal cannot be construed as one having been filed under Order 41 Rule 23-A and requests the Court to treat this appeal as filed under Section 104 CPC only.
13. At this juncture it would be necessary to extract the relevant provisions which govern the filing of appeals. Particularly one, which has been pressed into service in the appeal memo namely Section 104 and Order 41 Rule 23-A, which reads as under:
104. Orders from which appeals lies:
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-
[(ff) an order under Section 35 A;]
[(ffa) and order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
i) any order made under rules from which an appeal is expressly allowed by rules;
[Provided that no appeal shall lie against any order specified in Clause-9(ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]
(2) No appeal shall lie from any order passed in appeal under this Section.
(Emphasis supplied by me)
This appeal is directed against the order passed by the Lower Appellate Court exercising its power under Order 41 Rule 23-A the said provision reads as under:
Order 41 Rule 23-A:
Remand in other cases:
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reserved in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.
14. Against an order passed by the Lower Appellate Court in exercise of its power under Order 41 Rule 23-A an appeal lies under Order 43 Rule 1(u) and said provision reads as under:
Order 43 Rule 1(u): an order under Rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
15. A perusal of Section 104, Order 41 Rule 23-A and Order 43 Rule 1(u) it would clearly go to show that appeal in question is to be treated as an appeal filed under Order 43 Rule 1(u) read with Section 104 of CPC, which is contended to be applicable to the appeal in question. Section 104 makes it expressly clear than an appeal would lie against any order made under rules from which an appeal is expressly allowed by the rules. Admittedly, an appeal would lie under Order 43 Rule 1(u) against an order of remand passed under Order 41 Rule 23-A. Thus, appeal under Section 104 of CPC would be maintainable, as it is substantive provision. At this juncture it would benefit to extract decision of Hon’ble Supreme Court in the case of SMT. GANGA BAI vs. VIJAY KUMAR AND OTHERS3 it reads as under:
Para17: These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against on order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No.72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the Trial Court.
Para 18: The High Court mixed up; two distinct issues: one, whether it was competent to defendants 2 and 3 if they were aggrieved by the preliminary decree to file an appeal against that decree; and two, whether the appeal such as was filed by them was maintainable. If it be correct that defendants 2 and 3 could be said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the appeal filed by defendants 2 and 3 was maintainable, the High Court digressed into the question of the competence of defendants 2 and 3 file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court held that the appeal, which in fact was directed against a finding given by the Trial Court, was maintainable. If the High Court had appreciated that the two questions were distinct and separate, it would not have fallen into the error of deciding the latter question by considering the former.
Para 19:Adverting to the question which the High Court did consider, namely, whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree, there is nothing in the terms of that decree which precluded those defendants from depositing the decreetal amount to be able to redeem the mortgage. The Trial Court had passed the usual preliminary decree for sale in Form No.5-A, under Order 34, Rule 4, Civil Procedure Code. If the amount found due to the appellant under the decree was paid into the court within the stipulated or extended period, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quite and peaceable possession of the property free from the mortgage. The amount declared to be due to the appellant by the preliminary decree was not paid by the defendants, from which it would appeal that they were not interested in paying the amount. It is significant that defendants 2 and 3 were served with the notice of final decree proceedings and they appeared therein. The Code is merciful to mortgagors and perhaps rightly, because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest, costs and expenses. Under Order 21, Rule 89, it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest in the mortgaged property by virtue of a title acquired before the sale, that is, under the registered partition dated January 11, 1956. Under Order 21, Rule 89, where immovable property is sold in execution of a decree, any person owning the property or holding an interest therein by virtue of a title acquired before the sale, can apply to have the sale set aside on his depositing in Court, for payment to the purchaser a sum equal to five percent of the purchase-money and for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants. Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. That was much too late”.
16. The substantive provision for filing an appeal is by virtue of express provision provided under Section 104 of CPC. Thus, under Section 104 of CPC an appeal lies against any order made under rules from which an appeal is expressly allowed by rules. Now, let me examine as to which provision under the First Schedule of CPC provides for filing such appeals and particularly for filing an appeal against order passed Order 41 Rule 23-A. As per Order 43 Rule 1 orders passed under Clauses (a) to (w) appeals are provided for and it is only those orders against which an appeal would be maintainable under Order 43 and none else. The appeal in question has been filed under Section 104 against an order of remand made by Lower Appellate Court in exercise of its power under Order 41 Rule 23-A which would squarely fall within Order 43 Rule 1(u). In order to consider and examine the question as to whether substantial question of law is to be framed in an appeal filed under Section 104 of C.P.C. against an order passed under Order 41 Rule 23-A it would also be necessary to examine Section 100 of CPC which provides for filing second appeal vis--vis Section 104 of C.P.C. which also provides for filing an appeal against certain orders only and in view of the fact same is treated as a second appeal. These 2 sections are enumerated as under in order to make a comparative study:
| Section 100Second appeal:(1) Save as otherwise expressly provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this Section from an Appellate decree passed exparte. (3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-Section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. | Section 104Orders from which appeal lies:(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this code or by any law for the time being in force, from no other orders: *** (ff) an order under Section 35-A; (ffa) and order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95; (h) an order any of the provisions of this code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; Provided that no appeal shall lie against any order specified I Clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this Section. |
17. Under Section 100(4) this Court will examine if there is any substantial question of law involved in an appeal and if so, would formulate the substantial questions of law, if any, for being adjudicated. Whereas under Section 104 filing of appeal is restricted to orders enumerated in clauses (ff) (ffa), (g), (h) and (i). For entertaining an appeal filed under Section 104 what requires to seen or examined is to find out as to whether such an appeal is filed against any of the orders as enumerated in Clauses (ff), (ffa) (g) (h) and (i) and it need not go beyond it. Whereas in an appeal filed under Section 100 this Court will have to examine and find out as to “whether there is any substantial question of law” involved in the appeal and if answer to this question is ‘yes’ then substantial question of law requires to be formulated for being adjudicated and answered. A comparative study of Section 100 of 104, it would emerge in Section 104 the words “substantial question of law” is not be found which mandates this Court to formulate substantial questions of law for being adjudicated. The law makers have consciously omitted to add “substantial question of law” for consideration of an appeal or entertaining an appeal filed under Section 104. An appeal under Section 104 is an “appeal simplicitor” and it would not be an appeal required to be entertained or considered for being adjudicated after formulating substantial question of law. The words as found in the language of sub-Section (4) of Section 100 of CPC is not be found in the language used in Section 104 of CPC.
18. Thus, an appeal filed under Section 104 cannot be elevated to the status of an appeal filed under Section 100 of CPC and both these appeals stand on different moorings. Admittedly the appeal in question is filed against an order of remand made under Order 41 Rule 23-A as observed from paragraph-22 of the Lower Appellate Court judgment which reads:
Under such circumstances, it is a special case in which full dressed trial is necessary. Therefore, I am of the view that it is necessary to remand this case to the Trial Court for conducting a full dressed trial and dispose it of in accordance with law. In this regard Order 41 Rule 23A applies. I consider re-trial absolutely necessary.
(Emphasis supplied by me)
And an appeal against such order is provided for under 43 Rule (1)(u) which provision reads as:
ORDER XLII:
APPEALS FROM ORDERS
1. Appeals from orders:An appeal shall lies from the following orders under the provisions of Section 104, namely:
(a) ***
(b) to (t) ***
(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(v) ****
(w) ****
19. Thus, appeal in question has been filed under Section 104 as submitted by Learned Counsel for appellant and as found them Appeal memorandum which is against an order of remand and appeal against such order being expressly found in order 43 Rule (1)(u) I am of the considered view that no substantial questions of law are required to be formulated for being adjudicated and answered when appeal is filed under Section 104 of CPC. Hence, point No.1 is answered in the negative and against appellant.
20. Re question No.2: The contention of Sri.V.R. Datar, Learned Advocate appearing for the appellant is that document which has been pressed into service by the plaintiff namely sale deed dated 05.09.1971, which came to be marked, as Ex.P3 should not have been looked into by Appellate Court is without merits. Appeal being continuation of original proceedings, it is within the domain of Lower Appellate Court to examine as to whether a document produced and marked by the Trial Court was in accordance with law or it was opposed to any of provisions of the Act. Whether the Trial Court committed an error in marking the said document is precisely the exercise which the Lower Appellate Court has undertaken in the instant case as evidenced from judgment of Lower Appellate Court. The discussion is found at paragraph 19 of Lower Appellate Court judgment wherein after having applied principles laid down by this Court in the case of K. AMARNATH vs. SMT. PUTTAMMA4 as extracted therein particularly paragraph 13 is has rightly come to a conclusion that when document itself was inadmissible in evidence if same is marked by the Trial Court without application of mind it would be within its domain to correct such error or illegality committed by the Trial Court.
21. At this juncture itself it would be necessary to examine the contention raised by Sri. V.R. Datar on this issue by pressing into service Section 35 of the Karnataka Stamp Act same reads as under:
Section 35:
Admission of instrument where not to be questioned: where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
A reading of this Section, it would emerge that when an instrument and document admitted in evidence such admission of document cannot be questioned otherwise except as provided under Section 58 of the said Act. This provision would be applicable, when the defendants have appeared, participated and contested in the proceedings and did not choose to raise objection for marking of the said document and at a later stage objects to it. However, this principle cannot be extended and held applicable either when defendant has not appeared and contested the matter or when such a contention is raised by a party before Appellate Court about marking of a document either on the ground that he had not participated in the proceedings or such marking was impermissible in law or against law and in such circumstances it would not whittle down the power of Appellate Court to examine the correctness or otherwise and such a finding given by the Trial Court about admissibility as also its marking.
22. Sri.V.R. Datar has pressed into service judgment and refer to supra and they are analysed at this juncture.
(i) AIR 1943 Privy Counsel 83
This was a case where at the appellate stage for the first time an objection as to be admissibility was raised having participated in the proceedings before the Trial Court which came to be negatived. In view of the discussions made herein above in the instant case that defendants neither appeared or participated in the proceeding before Trial Court and they having raised such contention in the appeal before the Appellate Court, powers of the Appellate Court would not be whittled down in such circumstances so as to examine whether such a document was admissible in evidence or not and could have been marked in law. Hence, said judgment is of no assistance to the appellant.
ii) (2009) 9 SCC 221
37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of Law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.
38. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/ or the decisions of the superiors Courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4,5 and 6, in our opinion, are not admissible in evidence in the criminal trial.
(Emphasis supplied by me)
A reading of above paragraphs from the judgment makes it explicitly clear as to how admissibility of a document can be questioned in criminal proceedings. Even otherwise, it has been held by their lordships in said judgment that once party participates in the proceedings and does not object to marking of the said document he would be estopped from objecting to the same at a later stage. At the cost of repetition it is to be noted that in the instant case defendants have not participated in the proceedings and not having filed their written statement and they having been placed exparte defendants are fully justified in raising objection regarding admissibility of the document before the Appellate Court. The Appellate Court was also within its power to examine the correctness or otherwise as to the marking of the document in question. Hence, the said judgment would not be helpful to appellant herein.
23. In view of the same contention regarding admissibility of the documents as raised by Learned Advocate for appellant cannot be accepted and it is hereby rejected.
24. In so far as issue raised regarding service of summons on defendants having been accepted by the Lower Appellate Court and it ought not to have embarked upon further inquiry on merits of the case, when examined it would emerge that Lower Appellate Court at paragraph 14 of its judgment has extracted the order sheet of the Trial Court wherein sufficiency of service of notice on defendants has been accepted by the Trial Court on defendant Nos.1 to 4 while placing them exparte. One another intriguing aspect which the Lower Appellate Court has failed to look into is that admittedly there were 4 defendants before the Trial Court even according to the Lower Appellate Court. According to Lower Court suit summons is said to have been served on defendants Nos.1, 3 and 4 through defendant No.2. To put it other way 2nd defendant is said to have received suit summons on behalf of defendant Nos.1,3 and 4.
25. From the plaint averments it reveals that all the defendants are majors. Trial Court should have ensured service of summons either on all the members or on the person who is authorised to receive the summons on their behalf as contemplated under Order 5 Rule 15 as amended by Karnataka Amendment. Until and unless there is an agency created by the principal to receive the summons, service of summons on any one of the major male members of the family cannot be construed or accepted as due service on other major members who are defendants.
26. In this case for this precise reason I have observed hereinabove that it is intriguing to note as to how Appellate Court presumed that there is service of notice on all the defendant by holding service of notice was effected on Kartha of the joint family. It is not even the case of the plaintiff as per the plaint averments in O.S.No.150/2008 that defendants are members of Hindu undivided family and all the plaintiffs are joint family members and 2nd defendant is Kartha of the joint family. As such finding of the Trial Court holding service of notice as duly served on the defendants is not only erroneous but also contrary to provision of Order 5 Rule 15. Yet, another fact which is required to be noticed by this Court is, admittedly suit summons had not been served on 2nd defendant. The note as per the order sheet dated 17.11.2008 depicts that suit summons has been served on defendant Nos.1, 3 and 4 through defendant No.2. If the service of notice has not been complete on 2nd defendant it has to be held either service of summons on 2nd defendant as duly served and service of summons on defendants No.1, 3 and 4 incomplete or in the alternative it had to be held service of summons duly served on defendant Nos.1,3 and 4 and service of summons on 2nd defendant incomplete and it cannot be held both.
27. Though Learned Advocate appearing for appellant would contend that defendants have not challenged the said finding by filing an appeal or objection, I am not inclined to accept such a contention for obvious and simple reason that under Order 41 Rule 33 which clothe the respondent to raise such contention even in the absence of filing an appeal and cross objection and the appellate powers of this Court being vide and in order to do complete justice between parties and to avoid any mis-carriage in the Administration of justice it has to be held that finding of Lower Appellate Court confirming the judgment of Trial Court on “service of summons” on defendants as duly served cannot be sustained. At this juncture it would be benefit to extract the judgment of Hon’ble Supreme Court in the case of CHAYA AND OTHERS vs. BAPUSAHEB AND OTHERS5 wherein it is held as under:
“Para -14:This provision is based on a salutary principle that the Appellate Court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the Appellate Court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the Appellate Court should not hesitate to exercise the discretion conferred by the said rule.”
28. The principles enunciated in the above judgment squarely applies to the facts and circumstances of the case. Thus, it has to be held that finding of the Lower Appellate Court holding that there was due service of notice on defendants is to be held as erroneous finding and liable to be set aside and accordingly it is set aside.
29. The apprehension of the plaintiff that the findings given by the Lower Appellate Court precludes plaintiff from urging his contention and fears expressed by the plaintiff is allayed as seen from the finding of the Lower Appellate Court as extracted herein below. The Lower Appellate Court while answering point No.2 formulated by it has held and concluded as under:
Para21 page 36.
I have come to the conclusion that Ex.P.3 is inadmissible in evidence as it stands now, the Learned Trial Judge is advised to once again examine the applicability of Section 54 of the Transfer of Property Act read with Section 49 of the Registration Act in the light of evidence to be adduced before him.
(Emphasis supplied by me)
30. The Lower Appellate Court has taken into consideration all the aspects into consideration to exercise its power under Order 41 Rule 23 to remand matter to the Trial Court and assigned its reasons by permitting the defendant to file written statement and contest the suit on merits and said order cannot be held either to be erroneous or illegal or contrary to any of the provision of the CPC. As such point No.2 formulated herein above is answered by holding that except to the extent holding service of notice on the defendants by the Lower Appellate Court as duly served is erroneous and requires to be set aside findings of Lower Appellate Court on all other points are affirmed and accordingly point No.2 formulated in the appeal hereinabove is answered in favour of the respondent herein and against the appellant.
31. Re point No.3: In view of the above discussion following order is passed.
Order
I) The appeal is dismissed with costs by affirming the order of Lower Appellate Court dated 31.08.2010 passed in R.A.No.45/2009 on all points adjudicated by it except to the extent of holding service of suit summons on the defendants as proper and same is held as erroneous and is reversed by holding there was no proper service suit summons on the defendants.
ii) The notice of this appeal having been served on respondents and appeal having been contested by the respondents it would be just and proper to direct the appellant herein to pay cost of Rs.3,000/- to the respondents within a period of four weeks from the date of receipt of certified copy of this order. In the event of non-payment of costs defendants would be entitled to recover the same by filing execution petition. Ordered accordingly.