Friday, August 23, 2013

ANY party aggrieved by a court order / judgment can appeal against it ; need NOT be only parties to original suit !! BOMBAY HC : So ...can a mother in law appeal a DV case decision that will throw her out of her SON's house ????

ANY party aggrieved by a court order / judgment can appeal against it ; need NOT be only parties to original suit !! BOMBAY HC : So ...can a mother in law appeal a DV case decision that will throw her out of her SON's house ????

Notes
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*Hon Bombay HC has decreed that any party aggreieved by a order / judgement can appeal against the same with the leave of the court
*The appealing party NEED not be party to the original suit 
*Bombay HC hasa referred many other important judgement in this regard
* Cited Supreme Court "....Appeal by a person not a party to the lis was maintainable if she was aggrieved provided she applied  to  the Court for leave and directions in that behalf......"

* and the Hon HC goes on to say ".......Technicalities should never be permitted to override substantial justice"..........."

* and who decides "substantial" when it is judge made law !!!!
 


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS DOT NIC / MUMBAI HC WEB SITE 
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Bombay High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE JURISDICTION
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CIVIL APPLICATION NO.1737 OF 2012
                     WITH
CIVIL APPLICATION NO.1738 OF 2012
                     IN
APPEAL FROM ORDER NO.1278 OF 2012
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Kiran Ramesh Kothari ­­ Appellant
V/s.
Jayantilal Meghji Pokar & Ors ­­ Respondents
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N.R. Bubna, Adv. for the Appellant.
R.D. Suryanwanshi, Adv. for the Respondent No.1.
S.K. Sonawane, Adv. for the MMC.
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CORAM :   MRS. ROSHAN DALVI, J.
Date of Reserving the Judgment :   6th August, 2013    
Date of Pronouncing the Judgment :  21st August, 2013
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J U D G M E N T
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1. The Applicant / Appellant is the neighbour of the Plaintiff in the suit.  The Plaintiff applied for protection of construction made by way of balcony outside her residence.  That balcony structure has been  protected   by  order of the Court. The Appellant having felt aggrieved by the said order has chosen to Appeal against it.  The Appellant has accordingly applied for leave to file this Appeal.  It is contended by the Respondent that the Appeal is not maintainable because the Appellant is not party against whom the order was passed. It is contended by the Applicant that the Appeal is maintainable by him as an aggrieved person being the person aggrieved by the impugned order which she seeks to challenge.

2. In an earlier litigation by the Plaintiff against the MMC with regard to the same suit structure the Appellant applied to be a party Defendant in the suit in the trial Court. The Respondent opposed the application. The application was not granted. The suit came to be decreed. Thereafter upon a fresh notice of the municipality the second suit was filed by the Respondent No.1 herein as the Plaintiff in the suit. Hence for the second time the Applicant, instead of applying to be a party Defendant, has sought to file the Appeal.

3. Whether or not there was an earlier round of litigation, the legal rights of the parties must be considered in accordance with law – in this case, Judge made law. Counsel on behalf of the Plaintiff / Appellant and Defendant / Respondent No.1 have relied upon judgments of this Court as also Supreme Court laying down the parameters for consideration of who could be Appellant. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

4. In the earliest case of  The Province of Bombay Vs. Western India Automobile Association, AIR (36) 1949 Bombay 141 the Division Bench of Chief Justice Chagla and Justice Bhagwati, as they then were, held that an Appeal by a person not a party to the lis was maintainable if she was aggrieved provided she applied to the Court for leave and directions in that behalf. In that case Province of Bombay sought to Appeal a judgment and order passed in a suit by which it was aggrieved though not party to the initial petition. In that petition notice was served upon the Province of Bombay under directions of the Court. It appeared and submitted its point of view. It challenged the order passed. It was held that it was not competent to prefer an appeal itself. It was observed in paragraph 3 of the judgment that the civil procedure code does not in terms lay down as to who can be a party to the Appeal. But only a party against whom a decision is given has a right to prefer an appeal. If a person is not party to the suit she may prefer an Appeal if she affected by the order of the trial court provided she obtained  leave from the Court for Appeal and hence whereas the party to the suit had a right of appeal, a person who was not party to the suit had no such right, but the court of Appeal may in its discretion allow him to prefer an appeal. It was wondered why the Province of Bombay who was vitally affected by the Judgment of the learned Single Judge would not make itself a party to the Petition, but instead preferred the Appeal without obtaining leave or directions from the appellate Court. Nevertheless so as not to be constrained by the technicalities the Division Bench of the High Court allowed the Appeal to be filed to be heard on merits.

The golden words laid down thus :

"Technicalities should never be permitted to override substantial justice". 

5. Counsel on behalf of the Respondent No.1 contended that that was an intra court appeal. However, it makes no difference to the noble principle of law.

6. In the later case of Banarsi & Ors. Vs. Ram Phal, (2003) 9 Supreme Court Case 606 the Supreme Court observed that the only person aggrieved by decree would be entitled to file an Appeal. In paragraph 8 of the Judgment the Supreme Court considered Sections 96 and 100 of the CPC and observed that it was settled by a long catena of decisions that a person must be aggrieved to be entitled to Appeal a decree. It further held that unless the person was prejudicially or adversely affected by it, he was not entitled to an Appeal U/s.96 and 100.  Upon that analogy the Supreme Court set aside the Judgment and decree of the first Appellate court and restored the trial court's order. The Supreme Court granted further directions including the directions to the Respondent to deliver the suit agreement to the Appellants endorsing the amount received thereunder and discharging those agreements. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

7. The parties have argued the case on merits. The Appellant is the neighbour of the Plaintiff in the suit.  She contends that the construction which is put up by the Plaintiff is right overhead the Appellant's flat. The Appellant claims to have not only lack of light and air whilst the balcony construction remains, but also apprehends damage to her person and property if the balcony, constructed after the entire construction, would give way. Hence the Appellant  is unquestionably aggrieved by the passing of the ad­interim order directing the balcony which he considered a wholly unauthorised construction not even regularised by the Mumbai Municipal Corporation (MMC).

8. Counsel on behalf of the Respondent No.1 relied upon the judgment in the case of Northern Plastics Ltd. Vs. Hindustan Photo Films Mfg. Co. Ltd. & Ors. (1197) 4 Supreme Court Cases 452 to contend that the Appeal is a creature of statute and hence can be filed only by a person permitted by statute only.  Hence subject to the statutory conditions. In that case the statute which was being considered was the Customs Act, 1962.  An Appeal was specifically provided under that statute. The Appeal was filed by rival government undertaking permitting the party to the initial proceeding to clear the imported goods on payments of full customs duty. The Appellant was engaged in the same business as that importer. It contended that its commercial interest would be materially prejudiced. It was neither a party before adjudicating authority nor had a direct legal interest in the goods which came to be imported which were considered for customs duty. Considering the expression "person aggrieved" in Section 129 A (1) of the Customs Act which provided for appeals, it was held that such rival government undertaking could not file an Appeal as it had no direct legal interest in the case involved in the adjudication process and Appeal cannot be filed by a business rival. It was also observed that such interest cannot be general public interest or interest of a business rival. Consequently it was held in paragraph 15 of the judgment that the Appellant had no sufficient locus standi under the scheme of the Act. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

10. The material distinction in this case is that it was held that the rival government undertaking had no direct legal interest in the subject goods. The Applicant, on the other hand, has a direct interest in the protection or otherwise of the suit construction being the balcony overhead.

11. Counsel on behalf of the Respondent No.1 also relied upon the judgment in the case of  M. Purnachander Rao Vs. Nawab Mazaharuddin Khan (Dead) thru LRs. & Ors. (2008) 12 Supreme Court Cases 433 to contend that the person not a party to the original proceedings claiming interest in the subject matter of the original proceedings cannot maintain a Letters Patent appeal. The proper remedy for such person was to initiate separate proceedings before the appropriate Court to vindicate her grievance. The reading of the entire judgment shows the Appellant a stranger to the proceedings in which upon the premise that a preliminary decree came to be passed which remained for 43 years came to be challenged by the Appellant as aggrieved person. No such law is laid down therein. Only an observation that Appellant would be at liberty to initiate separate proceeding is made in the ultimate paragraph of the judgment. That is indeed the discretion of the Court. In a given case leave to file appeal may be refused and the party may be relegated to an application to apply in separate proceedings or before the trial court as party Defendant. In this case the Applicant had already applied to be a party Defendant in the suit for the same subject matter but has been refused. Consequently he has chosen to Appeal against the second order in the second suit filed by the Plaintiff. He has applied for leave to file the Appeal unlike in the case of Province of Bombay (Supra) in which even without an application for leave it was allowed to Appeal. 

12. Upon the facts that the Applicant is an aggrieved party and has direct interest in the subject matter and has sought to apply for leave to appeal on merits and has also shown how he is aggrieved by the suit construction, leave to appeal must be granted to the Appellant. 

13. In fact counsel on behalf of both the parties have argued on the merits of their respective cases. Hence application is granted and the Appeal is heard on merits.

14. Both Civil Applications are disposed off accordingly.

 ( ROSHAN DALVI, J. )



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