Akbari Vs. Smt. Sabri and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1 still not satisfied and displaying the tenacity of robert bruce's proverbial spider moved yet another an application (out of which the present proceedings arise) this time under section 25 of the guardians and wards act, 1908 (hereinafter called the 'act') claiming the custody of the minor but impleading sheela and mallan as also the general public, as respondents, but not mst. 11 -procedure on admission of application :(i) if the court is satisfied that there is ground for proceedings on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing :(a) to be served in the manner directed in the code of civil procedure on :(i) the parents of the minor if they are residing in (any state to which the act extends) (ii) the person, if any, named in the petition or letter as having the custody or possession, of the person or property of the minor. , the minor had already stated that he would like to go to his sisters at village lang and not with his mother ms.h.s. bedi, j.1. the tortuous round of litigation betwein the parties herein suggest that what is at stake is not only the custody of a physically handicapped minor, undoubtedly dear to them, but the 89 kanals of land which ha owns which makes his costody not only more desirable, but positively attractive.2. the facts of the case as givin are that one habib khan was married to mst. aiwhan, from whom three daughters, malian, sheela (respondints no. 2 and 3) and akbari, the presint petitioner, were born. on mst. aishan's death some time later, habib khan intered into another marriage with respondint no. 1 mst. sabri and from that marriage the minor wali khan and two daughters were born. habib khan dead on 15.9.1982. respondent no. 1 thereafter married. ajmer khan in the year 1984, abandoning wali khan and his sisters in their father's home and to the care of their step-sisters akbari, mallan and sheela. respondint no. 1 now laid claim to the 89 kenals of land of habib khan which had devolved by succession upon wali khan on the basis of a will alleged to have been executed by him in her favour. this will was challenged successfully by wali khan and others including the present petitioner. the finding of the court was that the will sought to be projected by respondent no. 1 had not bean proved and the defandants in the suit i.e. mst. sabri and others could not succeed to the property on that basis. the matter did not end here and a suit was thereafter filed by the petitioner against respondant no. 1 praying for an injunction that the latter be restrained from taking the custody of wali khan in any manner orthr than in due process of law. this suit too was decreed vide judgmint of the trial court dated 25.2.1987. still dissatisfied; respondant no 1 filed a writ of hesbeas corpus in this court seeking the custody of the minor but the same was declined vide judgment of this court dated 2.6.1988 annexure p-2 to the petition, though the court in order to safeguard the interest of the minor, ordered a financial settlement in his favour keeping in view the income from the 89 canals of land left to him by his father. the high court, however, made no order as to the custody of the child who was admittedly at that stage in the defecto custody of the petitioner. respondant no. 1 still persisted in her efforts and moved an application under section 97 cr.p.c. before the court of the sub divisional magistrate, . fatehgarh sahib who caused the minor to be produced before him, recorded his statement and on that basis disallowed the application and directed that he be restored to the custody of his sisters mallan and sheela at village lang. respondent no. 1 still not satisfied and displaying the tenacity of robert bruce's proverbial spider moved yet another an application (out of which the present proceedings arise) this time under section 25 of the guardians and wards act, 1908 (hereinafter called the 'act') claiming the custody of the minor but impleading sheela and mallan as also the general public, as respondents, but not mst. akbari the present petitioner. this application came up for the first time before the guardian court on 24.12.1991 and the following order was recorded :-'it be registered. notice to general public be issued for 30.1.1992 through publication in daily teer kaman, patiala. notices to respondents no. 2 and 3 be also issued.'3. on 30.1.1992, it was noted that the publication had been made but as none was present to file objections, the case was adjourned to 20.2.1992 for evidence of the applicant. the exparte evidence was, thereafter recorded and the order imugned in the present proceedings made whereby the custody of the minor wali khan was ordered to be given to respondent no. 1. armed with the order of the guardian judge, a warrant for the custody of the minor was issued and in execution thereof he was handed over mst. sabri. it appears that it was at that stage that sheela and mallan respondents no. 2 and 3 who had been impleaded as parties but apparently not served moved an application for the setting aside of the exparte order against them and those proceedings are now pending in the court of the guardian judge at patiala. the petitioner also aggrieved by the said order filed an appeal in the court of the additional district judge, patiala for having it set-aside but the same was dismissed vide judgment dated 7.8.1982 on the ground that as she was not a party to the proceedings before the guardian court, an appeal at her instance was not maintainable. it is in these circumstances that the present revision petition has been filed praying that the order dated 25.5.1992 made by the guardian judge be set aside.4. it has been argued by mr. s.c. kapoor, learned senior counsel appearing for the petitioner that a revision petition was the only remedy available to her as she was not a pasty to the proceedings before the guardian court and for this purpose, he has placed reliance on ballu mal v. iiardawaro mal, air 1924 lahore 570. he has also urged that the persons who had been impleeded were required to be served in person as per section 11 of the act and even this was not done despite the order reproduced above having been made to that effect and the guardian judge passed the order after publication in an obscure newspaper known as the `dally teer kaman' he further argued that had the opposite pasty been represented before the guardian judge, the decision arrived at by him would not have been possible, as from the sequence of events, narrated above, it was clear that the interest of respondent no. 1 clashed with that of the minor and her efforts to secure his custody or grab his property had been frustrated by the courts. it was also urged that the guardian judge ought to have at least examined the minor who was about 17 years of age before recording its conclusions.5. in reply, it was urged by mr. h.s. mann and mr. kanwaljit singh advocates for respondent no. 1 that as respondents no. 2 and 3 had already moved an application for the setting aside of the exparte order of the guardian judge, no revision was competent before this court add in fact petitioner ought to have joined the proceedings before the guardian judge as held by the additional district judge, patiala in his judgment dated 7.8.1992. it was also urged that the petitioner was not a necessary party before the guardian judge as in the statement of the minor recorded by the sub divisional magistrate in proceedings udder section 97 of the cr.p.c. he had himself desired to go to his sisters sheela and mallan who were residents of village lang whereas mst. akberi was resident of village jasowal. lastly, it was urged that as there was no jurisdictional error committed by the guardian judge while making the order dated 25.5.1992, this court would not interfere in the revision.6. after hearing the learned counsel for the parties, i find substance in the stand taken by the petitioner and as such this petition must succeed.7. taking up the first argument of mr. kapoor, . it is apparent that the petitioner was not a party to the proceedings before the guardian judge and as such the only remedy available to her was by way of revision, as held in ballu mal's case (supra). it was held therein that a person, who was not made a party to the proceedings in a guardianship case, but to whom a notice should have been issued under section 11 of tee act., was a person interested in the matter of the appointment of a guardian add was entitled to move the high court to interfere in revision. it was self evident that the petitioner was a person who was interested in the outcome of the guardianship proceedings as she had been recognized as the defecto guardian of the minor by the courts, on various occasions, including the judgment dated 25.2.1987 in which it was categorically directed that his custody could be taken away from her in due process of law only. moreover, the import of the judgment of this court in the habeas corpus proceedings annexure p-2 to the petition was also that the petitioner add her husband kangan khan were the ones, who had been looking after the minor and it was on this amount that a direction making a financial settlement for him was issued to them. the argument, therefore, that as in the proceedings under section 97 of the cr.p.c. the minor had stated he wished to live with respondents no. 2 and 3, and as such mst. akbari was not a necessary party, is absolutely, misconceived .8. the next argument of mr. kapoor is that even assuming for a moment that mst. akbari was not a necessary party even respondent no. 2 & 3 who were admittedly so were not duly served. he has referred to section 11 of the act, which reads as under :-s. 11 -procedure on admission of application :-(i) if the court is satisfied that there is ground for proceedings on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing :(a) to be served in the manner directed in the code of civil procedure on :-(i) the parents of the minor if they are residing in (any state to which the act extends)(ii) the person, if any, named in the petition or letter as having the custody or possession, of the person or property of the minor.(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant and(iv) any other person, to whom, in the opinion of the court, special notice of the application should be given; and,(b) xx xx xxit will be seen from the above that service is to be effected in the manner directed by the code of civil procedure. order v rule 12 c.p.c. provides that ordinarily, wherever it is practicable service was required to be made on the defendant in person and it was in accordance with this injunction that the guardian judge had himself directed on 24.12.1991 that notice to the respondents was also to issue in term of section 11(i)(ii) of the act, but this was apparently not done. the mere publication in the newspaper 'daily teer kaman, patiala', therefore, did not satisfy the requirements of section 11 of the act and for that additional season also, the order under challenge cannot be sustained. the power under section 115 of the code of civil procedure is wide enough to enable this court to reach an illegality wherever it is and to remedy it and merely because sheela and malian are before me as respondents, does not preclude me from setting aside a patently illegal order on this ground as will at the instance of the petitioner, especially when similar proceedings are pending before the guardian judge at the instance of the former.9. it has next been argued by mr. kapoor that as the interest of respondent no. i was adverse to that of the minor, no order appointing her guardian ought to have been made. i am, however, of the view that as the matter regarding guardianship is to be reconsidered by the guardian court consequential to this judgment, any finding recorded at this stage on this argument would prejudge and prejudice the tension and is, therefore, not warranted.10. the counsel for the respondent next argued that as there was no error in the exercise of jurisdiction by the guardian judge in making the order impugned, no case for interference in these proceedings was. called for. this argument too is misplaced. once, it is fount that a necessary party has not been impleaded and in any case even the parties who were impleaded have not been served as per requirements of law, the order suffers from serious jurisdictional errors and a glaring material irregularity, calling for immediate remedial action by this court.11. the final argument raised by mr. mann in conclusion was that it was appropriate to record the statement of the minor at his stage. it was with this intention that i had directed that the minor be produced before me on 15.10.1992 vide order dated 29.9.1992. this order was conveyed to respondent no. 1 by her counsel mr. a.s. kalra, advocate. on 15.10.1992, mr. kanwaljit. singh who appeared for the said respondent prayed that he be allowed some time to produce the minor and the case was adjourned to 19.10.1992. on 19.10.1992, the child again did not appear and it was stated by respondent no. 1 who was present in person on that date as he was physically handicapped, it was difficult for him to be produced in the court. it was at this stage that i told her in the presence of her counsel who was now mr. h.s. mann that if the minor was not produced in the court on 21.10.1992, she would be liable to face proceedings under the contempt of courts act and it was only thereafter and with extreme reluctance that the minor has been produced today in court. it. is quite possible, therefore, that the minor would not be a free agent. it is also significant that the case of respondent no. i before the guardian judge was that the minor was not only physically but mentally handicapped as will. moreover; it appears that in the, proceedings recorded by the sub divisional magistrate under section 97 of the cr.p.c., the minor had already stated that he would like to go to his sisters at village lang and not with his mother ms.. sabre. i, therefore, feel that it will be no. in the interest of justice or even appropriate to record the statement of the minor at this stage.12. for the reasons recorded above, the present petition is allowed and the order dated 25.5.1992 is quashed and a direction is issued to respondent no 1 to restore the child to respondents no. 2 and 3 from whom the custody was taken under the orders of the guardian judge. the parties are directed to appear before the guardian judge, patiala on 29.10.1992 when the minor will he handed over in court to the said respondent and if an effort is made to delay the even. the guardian judge shall take immediate steps to insure that the order of this court is complied with forthwith. it is also directed that the petitioner will be treated as a co-respondent in the guardianship proceedings and shall be allowed to defend her case.13. from the tenor and conduct of the proceedings before me, it appears that the parties have their interest in the coustody of the minor but equally in his property. some direction is, therefore, required on this aspect as will. the minor is over 17 years of age now and will reach the age of majority in a few months and will thereafter be in a position to decide things for himself. it is, therefore, directed that during the period of his minority, the petitioner, or the respondents or any other person acting on his behalf would not be entitled to dispose off his property in any manner whatsoever and the orders of this court in criminal writ petition not 921 of 1988 (annexure p-2) will continue to be complied with. it is, however, made clear that and observations made in this judgment will not prejudice or influence the outcome of the proceedings before the guardian judge and they are to be construed as having been made only for the limited purpose of the disposal of this petition.