SUPREME COURT OF INDIA

Before:- Ashok Bhan and A.K. Mathur, JJ.

Civil Appeal No. 5553 of 1999. D/d. 10.2.2005.

Sikander (Dead) by Lrs. and others - Appellants

Versus

Liyaqat Ullah and others - Respondents

Suit for declaration of ownership decreed and confirmed by first appellate court - While second appeal was pending son of original plaintiff moved on application for dismissed of appeal as having been abated as sole applicant died and legal representative not brought on record - Application was allowed by order dated 22.2.1984 - Soon after successor-in-interest seeking dismissal of order dated 22.2.1984 - Application dismissed but review petition allowed by High Court - High Court by order dated 20.7.1985 allowed substitution of LR's and condoned the delay - High Court further recorded that no objection was raised by respondents - Held that order of High Court was based on concession - Successor-in-interest of original plaintiff bound by the concession.

[Paras 5 to 9]

ORDER

Ashok Bhan, J. - This appeal is directed against the order dated 17-3-1999 in CMA No. 56288 of 1997 in SA No. 592 of 1978 passed by a learned Single Judge of the High Court of Judicature at Allahabad.

2. Briefly stated, the facts are:

Qudrat Ullah, the original plaintiff filed a suit against Sikander, the original defendant for declaration of ownership of the suit property and possession, which was decreed. Aggrieved against the judgment and decree passed by the trial court, Sikander filed an appeal in the first appellate court. The first appellate court confirmed the judgment and decree passed by the trial court. Aggrieved against the judgment and decree passed by the courts below, Sikander filed SA No. 592 of 1978 in the High Court. During the pendency of the second appeal before the High Court, Qudrat Ullah, who was Respondent 3, died on 16-2-1983 and Sikander who was the sole appellant, died on 15-6-1983. On 18-6-1984, an application was filed by Sarafat Ullah son of Qudrat Ullah seeking dismissal of the appeal as having been abated as no application to bring on record the legal representatives of the appellant and the respondent had been filed. By an order dated 22-2-1984, the application filed by Sarafat Ullah for dismissal of the appeal as having been abated was allowed. The appeal was ordered to be dismissed as having been abated.

3. Successors-in-interest of Sikander, the appellants herein, moved applications on 6-3-1984, for recalling the order dated 22-2-1984, for setting aside the abatement of appeal and for their substitution as the legal representatives of Sikander after condoning the delay in filing the substitution application to prosecute the appeal. These applications were dismissed by the High Court on 9-3-1984.

4. Immediately thereafter, the appellants filed review applications for recall of the orders dated 22-2-1984 and 9-3-1984, which were allowed on 4-4-1984. The applications filed on 6-3-1984 by the successors-in-interest of Sikander for setting aside the abatement and substitution were restored to their original number/position. On 20-7-1995, after hearing counsel for both the parties, the High Court allowed the applications dated 6-3-1984. It was recorded in the order that the respondents did not raise any objection to the allowing of the applications. The consequence of this order was that order dated 22-2-1984 stood set aside, the delay in moving the applications for substitution condoned, the abatement of appeal set aside and substitution ordered.

5. Smt Meraj Begum, daughter of Qudrat Ullah moved an application on 19-8-1997 seeking recall of the order dated 20-7-1995, setting aside of the abatement and substitution of the appellants in place of Sikander as the appellants in the main appeal. It was mentioned in the affidavit filed in support of the application that she (Smt Meraj Begum) had become the owner of the entire suit property having inherited a part of the property as the successor to Qudrat Ullah and the purchase made by her of the remaining share in the suit property from her brothers and sisters who were Respondents 1, 2 and 3 by means of a registered sale deed dated 30-4-1997.

6. It was stated that the title to the estate thereafter vested in her. It was stated that she did not have knowledge or information of the pendency of the appeal and came to know about the order dated 20-7-1995 substituting the appellants as the legal representatives of Sikander recently and immediately thereafter, she moved the application for recall of the order dated 20-7-1995.

7. The High Court by the impugned judgment has allowed the application filed by Meraj Begum. The order dated 20-7-1995 was recalled and the applications moved by the appellant on 6-3-1984 for setting aside the abatement and for their substitution as the legal representatives of Sikander dismissed.

8. Counsel for the parties have been heard at length.

9. The order dated 20-7-1995 was passed by the High Court after hearing both the parties in their presence. The order was passed on a concession made by the respondent. Smt Meraj Begum moved the application in the year 1997 as the successor-in-interest of the legal representatives of Qudrat Ullah being a vendee and also heir of Qudrat Ullah. She is bound by the concession made by her predecessors-in-interest. This apart, no explanation has been given by her for moving the application to recall the order dated 20-7-1995 after a delay of more than two years except saying that she did not know about the pendency of the appeal. In fact, we find that no prayer has been made for condonation of delay in filing the application at a belated stage. Since the order dated 20-7-1995 was passed by the High Court in the presence of the parties and on a concession made by the predecessor-in-interest of Meraj Begum the High Court erred in recalling the order dated 20-7-1995 at a belated stage. The same is set aside. The High Court declined to pass any order on the application for impleadment moved by Smt Meraj Begum in view of the fact that the order dated 20-7-1995 had been recalled and the appeal dismissed as having been abated. The order of the High Court in dismissing the application for impleadment filed by Meraj Begum is also set aside. Meraj Begum is taken on record as the legal representative of Qudrat Ullah. She would have the right to contest the appeal on merits.

10. The order under appeal is set aside and the order dated 20-7-1995 is restored. The appeal is allowed accordingly.

11. Since the proceedings were initiated in the year 1972 and the second appeal in the High Court is of the year 1983, we would request the High Court to take up the second appeal out of turn and dispose the same on merits in accordance with law, as expeditiously as possible.

Appeal allowed.