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(SUPREME COURT)
B. Sudershan Reddy and J.M. Panchal, JJ.
Dwarika Prasad v. Nirmala and others
Civil Appeal No. 8407 of 2009: against the order of
M.P. High Court, Gwalior Bench, passed in
Civil Revision No. 122 of 2005 [published in 2007(II) MPWN 40];
Decided on 17.12.2009.
There is no manner of doubt that the late father of respondent 1 had filed a suit for partition of the joint properties. On his death the right to sue survived and respondent 1 being his daughter and legal representative was entitled to continue the suit in view of the provisions of the Hindu Succession Act.
The deceased who was a male Hindu, claimed interest in the joint properties which are subject-matter of suit for partition.
Section 8 of the said Act which deals with general rules of succession in the case of males, inter alia, provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being relatives specified in Class I of the Schedule to the Act. A daughter is specified as one of the relatives in Class I of the Schedule. Therefore, there is no manner of doubt that the share of the deceased plaintiff in the suit properties would devolve upon her, if the suit for partition is decreed. 2007(II) MPWN 40 affirmed. [Paras 13, 14 & 15
(2) Civil P.C., 1908 -- O.22 R.3 -- plaintiff-father died -- right to sue survived -- daughter can be substituted to continue suit for partition.
Rule 3 of Order 22 CPC, inter alia, stipulates that when a sole plaintiff dies and the right to sue survives, the Court on an application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Thus, respondent 1 was entitled to be substituted in place of her deceased father. 2007(II) MPWN 40 affirmed. [Para 16
(3) Civil P.C., 1908 -- S.115 -- revision -- is supervisory jurisdiction of High Court -- beneficiary of fraud played upon trial Court -- not entitled to invoke such jurisdiction.
The supervisory jurisdiction of the High Court as incorporated in section 115 of the Code of Civil Procedure is intended to ensure that justice is done between the parties. The appellant who was the beneficiary of fraud played upon the trial Court and the High Court would not be entitled to invoke the discretionary jurisdiction of the High Court under section 115 CPC. [Para 21
(4) Civil P.C., 1908 -- O.23 R.1 -- suit for partition -- plaintiff alone can withdraw such suit -- one of the defendants having played fraud to get the suit dismissed as withdrawn cannot object restoration of suit. 2007 (II) MPWN 40 affirmed. [Para 23
(5) Partition -- suit for partition of joint property -- every defendant is also in capacity of plaintiff -- would be entitled to a decree in his favour on establishing his share -- such suit cannot be dismissed as withdrawn without notice to another brother.
What is relevant to notice is that the late father of respondent I did not claim any exclusive title to the properties in himself. He claimed partition of the properties as one of the joint owners. Initially, the suit was not only decreed in his favour but also in favour of the third brother. It is well settled that in a suit for partition of the joint properties every defendant is also in the capacity of the plaintiff and would be entitled to decree in his favour, if it is established that he has a share in the properties. Therefore, the suit for partition of the joint properties, filed by the late father of respondent I, could not have been dismissed as withdrawn without notice to another brother who was also entitled to a share in the properties. 2007(II) MPWN 40 affirmed. [Para 24
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Panchal, J. -- 1. Leave granted. This appeal, by special leave, is directed against the judgment dated 29.3.2007 rendered by the High Court of Madhya Pradesh, Bench at Gwalior in Civil Revision No.122 of 2005, by which the order dated 5.5.2005 passed by the learned First Additional District Judge, Gwalior in MJC No.3 of 2004 allowing the application filed by respondent 1 under Order 9 rule 9 read with section 151 of the Code of Civil Procedure is confirmed and the order dated 16.12.2003 in MJC No.35 of 2001 (new number 29 of 2003) dismissing the said case for default as well as order dated 23.8.2001 dismissing MJC No.25 of 1998 for default are set aside and Civil Suit No.3-A of 1996, which was dismissed as withdrawn on 28.2.1997, is restored.
2. The relevant facts emerging from the record of the case are as under: late Mr. Shankar Lal, 'who was the father of respondent 1, filed Civil Suit No.l1 of 1955 for partition of the joint properties. The said suit was decreed on 10.7.1978. Feeling aggrieved, the appellant preferred First Appeal No.60 of 1978 before the High Court. The learned Single Judge of the High Court set aside the decree passed by the trial Court and remanded the matter to the trial Court for fresh decision vide order dated. 30.9.1991. Against the order of remand, LPA No.32 of 1991 was filed by the father of respondent 1.
3. On 24.2.1997 an application was filed by late Mr. Shankar Lal who was the father of respondent 1 for withdrawal of LPA No.32 of 1991. The LPA was dismissed as withdrawn on the same date i.e. 24.2.1997.
4. In the year 1996 Civil Suit No.11 of 1955 filed for partition of the joint properties was given a new number as 3-A of 1996. On 28.2.1997 another application was filed for withdrawal of Civil Suit No.3-A of 1996 by the father of respondent 1. In view of the contents of the said application the civil suit was also dismissed as withdrawn on the same date i.e. on 28.2.1997.
5. On 11.8.1998, the father of respondent 1 expired. Respondent 1 filed an application on 2.9.1998 for recalling the order dated 24.2.1997, passed in LPA No.32 of 1991. There was delay in filing the application· seeking recall of order dated 24.2.1997. Therefore, another application was filed for condonation of delay. Respondent 1 alleged in her application that the application dated 24.2.1997, purportedly filed by her late father, for withdrawal of the letters patent appeal, in fact did not bear the signature of her father and, thus, signature of her father was forged. It was mentioned in the application that Mr. J.P. Sharma, Advocate, had noted his appearance on behalf of her father in Civil Suit No.3-A of 1996 subsequently without seeking no objection certificate from the previous counsel, who had filed the plaint, and thereafter filed application for withdrawal of LPA, which was illegal and, therefore, the order dated 24.2.1997 disposing of the LPA as withdrawn should be recalled.
6. The High Court heard the learned counsel for the parties and by order dated 10.1.2005 condoned the delay in filing the application seeking recall of order dated 24.2.1997 by which LPA No.32 of 1991 was dismissed as withdrawn and allowed the application of respondent 1 for recalling the order dated 24.2.1997.
7. While allowing the application filed by the respondent 1 the High Court observed that a fraud was played upon the Court and directed the Registrar of the Court to file a complaint against Advocate Mr. J.P. Sharma and also against Advocate Mr. S.C. Goyal, who had identified the signature of the late father of respondent 1. The High Court also directed the Registrar to initiate criminal proceedings against the present appellant who was supposed to be the beneficiary of the act of forging for initiating criminal proceedings by filing a complaint.
8. The two advocates i.e. Mr. J.P. Sharma and Mr. S.C. Goyal challenged the order dated 10.1.2005 directing the Registrar of the High Court to file a complaint against them by filin
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