# Jagdeo Singh & Ors v. Hazarilal & Ors

- **Citation:** (2023) 5 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Second Appeal No. 3393 of 1978
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdeo-singh-ors-v-hazarilal-ors-49234
- **Pages:** 5

## Headnote

A. Civil Law - Code of Civil Procedure,1908Order 41 Rule 33-Appellate Court found the
sale deed dated 9.01.1968 was a valid one
and the amount was not returned to the
plaintiff then the plaintiff should get
possession over the 1/3rd portion of the
house which was sold by the defendants no.
7 and 8-Since the First Appellate Court by
using power under Order 41 Rule 33
exceeded its jurisdiction by interfering with
the decree which had attained finality vis-àvis defendants no. 9 to 10-property sold by
the defendants no. 9 to 10 would not be
given to the plaintiffs-the decree has been
modified to the extent that possession
would be given to the plaintiffs only vis-àvis the property which was sold to them by
the sale deed dated 09.01.1968.(Para 1 to
15)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

246 INDIAN LAW REPORTS ALLAHABAD SERIES
substantial question of law is answered in
the negative and it is held that given the
parameters, on which power under Order
XLI Rule 33 of the Code is to be exercised,
in the absence of a 'cross-objection' under
Order XLI Rule 22 of the Code, the Lower
Appellate Court was not at all justified in
granting relief to the defendants (defendant
Nos.4 to 7) to recover costs of the
constructions from the plaintiffs, the former
raised in encroachment.

72. Before curtains are drawn on this
appeal, it must be mentioned in the
passing that Substantial Question of Law
(ii) recorded in the Court's order dated
06.01.2020 is not at all a question. That
appears to be a direction to list the appeal
for hearing. It has been shown as a
question and assigned a number, again due
to some kind of a clerical or typographical
error.

73. In the result, Second Appeal
No.108 of 2008 fails and is dismissed with
costs. Second Appeal No.26 of 2020 is
allowed with costs. The decree passed by
the Lower Appellate Court to the extent it
directs the plaintiffs to pay defendant Nos.4
to 7 costs of the constructions raised by
them on the suit property is set aside and
the Trial Court's decree is restored.

74. Let separate decrees be drawn up
in both appeals in the aforesaid terms.
----------
(2023) 5 ILRA 246
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 3393 of 1978
Jagdeo Singh & Ors. ...Appellants
Versus
Hazarilal & Ors. ...Respondents

Counsel for the Appellants:
Sri V.D. Ojha, Sri Pranav Ojha, Sri R.K.
Singh, Sri Utpal Chaterjee, Sri Utpal
Chaterjee

Counsel for the Respondents:
Sri V.K. Chaudhary, Sri Kunal Ravi Singh,
Manjari Singh, Sri V.K.S. Chaudhary, Sri
Wajahat Husain

A. Civil Law - Code of Civil Procedure,1908Order 41 Rule 33-Appellate Court found the
sale deed dated 9.01.1968 was a valid one
and the amount was not returned to the
plaintiff then the plaintiff should get
possession over the 1/3rd portion of the
house which was sold by the defendants no.
7 and 8-Since the First Appellate Court by
using power under Order 41 Rule 33
exceeded its jurisdiction by interfering with
the decree which had attained finality vis-àvis defendants no. 9 to 10-property sold by
the defendants no. 9 to 10 would not be
given to the plaintiffs-the decree has been
modified to the extent that possession
would be given to the plaintiffs only vis-àvis the property which was sold to them by
the sale deed dated 09.01.1968.(Para 1 to
15)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Kashi Nath (dead) thru Lrs Vs Jaganath(2003)
8 SCC 740

2. Exe. Officer Arulmigu Chokkanatha Swamy
Koil, Trust, Virudhunagar Vs. Chandran & ors.
(2017) 3 SCC 702

3. Akhil Bhartvarshiya Marwari Agarwal jatiya
Kosh & ors.. Vs Brijlal Tibrewal & ors. (2019) 2
SCC 684

4. Lakshmanan & ors. Vs G. Ayyasamy (2016)
13 SCC 165
5 All. Jagdeo Singh & Ors. Vs. Hazarilal & Ors.
247
5. Banarsi & ors. Vs Ram Phal (2003) 9 SCC 606

6. Tummalla Atchaiah Vs Venka Narasingarao
(1978) AIR SC 725

7. Kuttan Sudhakaran Vs Padmavathi Amma
Laila Bai & ors. (1987) AIR Kerala 94

8. S. Md. Ismail & ors. Vs M.S. Md. Essa & ors.
(1974) AIR Madras 301

9. Budhan Vs Lala Harbans Lal (1973) AIR Alld
63

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A Suit being Original Suit No. 126
of 1969 was filed by the plaintiffs
Chandrapal, Sabhajeet and Tarbabu for the
relief that the defendants no. 1 to 5 be
dispossessed and the plaintiffs be given the
possession of the property in question. A
further prayer has been made that for the
period the defendants no. 1 to 5 had
remained in possession, they be directed to
pay Rs. 25 per month as damages to the
plaintiffs. Still further a prayer was made
that since the house in which the
defendants Jagdev, Chandradeep Singh,
Saheb Lal Singh, Ram Swaroop Singh and
Ramraj Singh were staying was sold to the
plaintiffs by the defendants no. 7 to 10, the
plaintiffs were to be declared the owners of
the property in question from which they
were wrongly out of possession due to
proceedings under Section 145 of C.P.C.

2. The defendants no. 1 to 5 came up
with a case in their written statement that in
fact the defendant no. 6 Lalta Prasad on
15.1.1968 had sold the house in question to
them and, therefore, they were the rightful
owners and were in possession over the
house in question.

3. The Suit was dismissed with regard
to possession over the house in question
and with regard to the relief that possession
be handed over to the plaintiffs but was
decreed to the extent that the defendants
no. 7 and 8 were ordered to pay back Rs.
700/- to the plaintiffs and the defendants
no. 9 and 10 were ordered to pay to the
plaintiffs Rs. 2,000/-. The defendants no. 7
and 8, who were aggrieved by the fact that
their sale deeds had been declared bad in
law and that they were required to return
Rs. 700/-, filed a First Appeal being First
Appeal No. 47 of 1977. This appeal was
filed against the plaintiffs. The First
Appellate Court, despite the fact that the
plaintiffs had not filed any appeal, decreed
the Suit. It held that since the sale deed by
which Hazari Lal and Shantu Lal had sold
their 1/3rd portion of the property to the
plaintiffs and also the sale deed dated
16.1.1968 by which Ram Deen and Ram
Ashrey had sold their 2/3rd portion of the
house in question to the plaintiffs were
found to be valid sale deeds, the suit was to
be decreed in toto. Further the plaintiffs
were also directed to take possession of the
house
in
question
over
which
the
defendants no. 1 to 5 were alleged to be in
possession. The defendants no. 1 to 4
Jagdev, Chandrapal Singh, Saheb Lal Singh
and Ram Swaroop have filed the instant
Second Appeal.

4. The Second Appeal was admitted on
the substantial question of law as to
whether when the sale deeds dated
11.6.1873 and of 25.6.1868 related to
another house as per their boundaries then
could the First Appellate Court decree the
appeal?

5. Before proceeding with the Appeal
further, it shall be pertinent to see whether
the grounds on which the First Appellate
Court had allowed the appeal and had
decreed the Suit were available to it. The
248 INDIAN LAW REPORTS ALLAHABAD SERIES
First Appeal was filed only by the
defendants no. 7 and 8 who had, in fact,
alleged that they had sold their 1/3rd
portion of the property on 9.1.1968 for a
sum of Rs. 700/- and, therefore, they were
not liable to return Rs. 700/-. The Appellate
Court while hearing the Appeal found that
the grand father of the defendants no. 7 and
8 had purchased the property from one
Syyed Azhan Hussain on 11.6.1873 and,
therefore, this property belonged to them
and they alone could have sold the
property. The First Appellate Court had
also taken note of the fact that the
defendant no.6 Lalta Prasad in paragraph
no. 12 of his cross-examination had
mentioned that his ancestors had only one
house and that too was situate in village -
Khurhand and to the best of his knowledge
his ancestors had only owned one house in
the village. On the basis of this fact it was
held that when ancestors of Lalta Prasad
had only one property and that too was in
village Khurhand, then the property which
was sold on 15.1.1968 by the defendant no.
6 was a meaningless sale, specially when
the ancestors had already sold off the
property.

6. The Appellate Court while allowing
the Appeal had used its powers under Order
41 Rule 33 of the C.P.C. and had decreed
the Suit of the plaintiffs to the extent that
not only was the sale deed by Hazari Lal
and Shantu Lal considered to be a proper
sale deed but it had also declared the sale
deed executed by the defendants no. 9 and
10, namely, Ramdeen and Ramashrey dated
16.1.1968 a valid one.

7. Aggrieved by the judgement and
decree of the First Appellate Court, the
defendants
Jagdev
Singh,
Chandrapal
Singh, Saheb Lal Singh and Ram Swaroop
Singh have filed the instant Second Appeal.

8. Learned counsel for the appellants
while arguing the Appeal vehemently
submitted that when the boundaries of the
sale deed dated 11.6.1873 and that of
25.6.1886 and of the house which was sold
did not match then the First Appellate
Court definitely erred in law. Learned
counsel for the appellant also argued that
when the First Appeal was filed by the
defendants no. 7 and 8 then the relief which
was claimed by them alone ought to have
been looked into and granted to them, if at
all the first appeal was being allowed. The
relief of possession which had been granted
to the plaintiff over the entire property,
including
the
property
sold
by
the
defendants no. 9 to 10, could not have been
granted by the First Appellate Court.

9. Learned counsel for the appellant
stated that the First Appellate Court set up a
new case for the plaintiff which was never
pleaded and proved by them.

10. The Appellate Court by invoking
the provisions of Order 41 Rule 33 of the
C.P.C. carved out a new case for the
plaintiffs and wrongly held that the
disputed house did not exist on the north of
the house of Lalta Prasad, the defendant
no.6. Learned counsel for the appellant,
therefore, submitted that the pleadings and
proof were at variance with each other. He
submitted that under Order 6 Rule 2 C.P.C.
there cannot be any variance between
pleadings and proof. Learned counsel relied
upon 2003 (8) SCC 740 (Kashi Nath
(dead) through Lrs vs. Jaganath) and
2017 (3) SCC 702 (Executive Officer,
Arulmigu Chokkanatha Swamy Koil,
Trust, Virudhunagar vs. Chandran and
others)

11. Still further learned counsel for the
appellant submitted that the First Appellate
5 All. Jagdeo Singh & Ors. Vs. Hazarilal & Ors.
249
Court committed a blunder be invoking the
provision of Order 41 Rule 33 of the C.P.C.
and relied upon 2019 (2) SCC 684 : Akhil
Bhartvarshiya Marwari Agarwal Jatiya
Kosh and others vs. Brijlal Tibrewal and
others;
2016
(13)
SCC
165
:
Lakshmanan
and
others
vs.
G.
Ayyasamy; 2003 (9) SCC 606 : Banarsi
and others vs. Ram Phal; AIR 1978 SC
725 : Tummalla Atchaiah vs. Venka
Narasingarao; AIR 1965 SC 1874 : (1.
Nirmala Bala Ghose and another in Civil
Appeals Nos. 966 and 968 of 1964, 2.
Nirmala Bala Ghose in Civil Appeal No.
967 of 1964 vs. Balai Chand Ghose in
Civil Appeals Nos. 996 and 968 of 1964,
2. Bala Chand Ghose and others in Civil
Appeals Nos. 967 of 1964); AIR 1987
Kerala 94 : Kuttan Sudhakaran vs.
Padmavathi Amma Laila Bai and others;
AIR 1974 Madras 301 : S. Mohamed
Ismail and others vs. M.S. Mohamed
Essa and others and AIR 1973 Allahabad
63 : Budhan v. Lala Harbans Lal.

12. He, therefore, submitted that the
First Appellate Court erred in passing the
impugned judgements.

13. Having heard the learned counsel
for the appellant, this Court is of the view
that so far as the matching of the
boundaries of the sale deed dated 11.6.1873
and the sale deed of the year 1886 (exhibit-
5) with that of the sale deed dated
15.1.1968, 9.1.1968 and 16.1.1968 is
concerned, the First Appellate Court has
definitely in paragraphs no. 9 of its
judgement taken all precuation to match the
boundaries and it has found that the
boundaries of the house which was
purchased by the grand father of the
defendants no. 7 and 8 was matching with
the boundaries of the house which was in
dispute. The Court, therefore, finds that the
finding with regard to the matching of
boundaries is concerned is concluded by
findings of fact. However, this Court
definitely is of the view that the finding
with regard to the sale deed dated
16.1.1968 executed by the defendants no. 9
to 10 could not have been given. Also the
relief with regard to return of Rs. 2000/-
had attained finality and could not have
been lightly disturbed. So far as the decree
which has been passed by the First
Appellate with regard to dispossession of
the defendants no. 1 to 5 is concerned it
cannot be interfered with as the First
Appellate Court has very sensibly found
that the simple allowing the first appeal visa-vis the defendants no. 7 and 8 would be
of no avail and the decree would be a futile
decree and therefore by using its powers
under Order 41 Rule 33 of the C.P.C. it had
also decreed the Suit to the extent that the
defendants
no.
1
to
5
would
be
dispossessed from the property which was
sold to the plaintiffs. However, the decree
of possession is being modified to the
extent that possession would be given to
the plaintiffs only vis-a-vis the property
which was sold to them by the sale deed
dated 9.1.1968. The property which was
sold by the defendants no. 9 to 10 by their
sale deed, however, would not be given to
the plaintiffs. The Second Appeal is,
therefore, accordingly, partly allowed.

14. Under the Order 41 Rule 33 of the
C.P.C. the Appellate Court has the power to
pass any decree and to make any order
which ought to have been passed and thus
power can be exercised by the Appellate
Court notwithstanding that the Appeal is
with regard to only a part of the decree. In
the instant case, when the First Appellate
Court was finding that the sale deed dated
9.1.1968 was a valid one and when the
amount of Rs. 700/- was not being returned
250 INDIAN LAW REPORTS ALLAHABAD SERIES
to the plaintiff then it was in the fitness of
things that the plaintiffs should also get
possession over the 1/3rd portion of the
house which was sold by the defendants no.
7 and 8 to the plaintiffs. However, since the
First Appellate Court had exceeded its
jurisdiction by interfering with the decree
which
had
attained
finality
vis-a-vis
defendants no. 9 to 10, the decree has been
modified.

15. With the above observations, the
Second Appeal is partly allowed.
----------
(2023) 5 ILRA 250
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.05.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matters Under Article 227 No. 1524 of 2023

India Oil Corporation Ltd. Lucknow
 ...Petitioner
Versus
Commercial Court-I, Lko. & Anr.
 ...Respondents

Counsel for the Petitioner:
Ashok Kumar Singh

Counsel for the Respondents:
Siddharth Nandwani

A. Commercial Law - Urgent interim relief
- Commercial Courts Act, 2015- Section
12(A)(1)
-
Contemplation
of
urgent
interim relief for the purpose of Section 12
A of the Commercial Courts Act 2015 is to
be considered by the court concerned only
as per averments made in plaint or
temporary injunction application. (Para 18)

B. It is not solely the plaintiff who is the
only arbiter of urgent interim relief, but it
is also the Court concerned which has to
look into the factor of urgent interim relief
in terms of relief sought in plaint or in the
application for temporary injunction. (Para
17)

A suit which does not 'contemplate' any urgent
interim relief under the Act cannot be instituted
unless the plaintiff exhausts remedy of pre
institution mediation in terms of Section 12 A of
the Act. For a suit to be maintainable without
the pre institution mediation and settlement as
such, would require that it contemplates any
urgent interim relief. The word 'contemplate'
would be quite relevant for the purposes of
examining the provisions and applicability of
Section 12 A of the Act. (Para 16)

C. The aspect as to whether a suit has
been filed after a considerable delay,
would not be a criteria required to
determine urgent interim relief. There may
be instances when an order of termination has
been passed but is not enforced for a certain
length of time and it is only its enforcement that
would require filing of a suit, which would thus
contemplate urgent interim relief being sought
for in the plaint. (Para 16)

D. Words & Phrases - 'Contemplate' - The
word 'contemplate' would necessarily mean
examination of relief prayed for in the suit as
well as urgency shown in the plaint w.r.t. such
relief being sought. The contemplation of urgent
interim relief as such, would be dependant on
the ground of said interim relief. For the
purposes of waiver of mandatory provision of
Section 12A as such, it is for the Court to
determine contemplation of urgent interim
relief. (Para 16)

In the present facts and circumstances although
the suit has been filed after almost one and a
half months of the termination of contract but
since it indicates urgent interim relief against
the clause of termination of contract, being
invoked against plaintiff, therefore when the
plaint as such contemplates urgent interim relief
and therefore mandatory provisions pertaining
to pre institution mediation have been rightly
waived by the Commercial Court. As such, no
exception can be taken to the order impugned.
(Para 19)