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CASE NO.:

Appeal (civil) 7162-7163 of 2002

PETITIONER:

Baldev Singh

RESPONDENT:

Surinder Mohan Sharma & Ors.

DATE OF JUDGMENT: 01/11/2002

BENCH:

V.N. Khare, Arijit Pasayat & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J:

Leave granted.

One Ajay Kumar, said to be a brother of a property dealer,

instituted a suit for permanent injunction against the First Respondent herein

in respect of a House No. HM-14, Phase II, Mohali. The said suit was

dismissed as withdrawn on 14th December, 1991. Allegedly, in relation to

the said property, the First Respondent entered into an agreement to sell

dated 23rd June, 1990 with the father of the appellant (since deceased). He

expired on 5th January, 1991. The First Respondent herein thereafter filed a

suit for possession against the aforementioned Ajay Kumar treating him as

his tenant and the appellant as the sub-tenant. He also allegedly refused to

honour the agreement to sell earlier executed by him in favour of father of the

appellant. While deposing in the second suit, the appellant herein made the

following statements in cross-examination :-

"My first wife is Sarbjit Kaur and my

second wife is Paramjit Kaur whenever I have

been posted at Chandigarh I have been staying

with my wife Paramjit Kaur. She is in service in

Director Cultural Affairs, Punjab, Sector-38,

Chandigarh as Librarian. I have two children

from Paramjit Kaur."

Relying on or on the basis thereof, the First Respondent herein

made complaints to the employers of the appellant and his wife Paramjit

Kaur on the ground that they have contracted a second marriage during the

life time of the first wife of the appellant; whereupon departmental

proceedings were initiated both against the appellant as also his wife,

Paramjit Kaur.

A suit, however, was filed by the aforementioned Sarbjit Kaur

in the Court of the Civil Judge (Junior Division), Ludhiana, marked as Civil

Suit No.696 of 1999, inter alia, on the ground that the appellant had divorced

her in the year 1982 by reason of a memorandum of customary dissolution of

marriage. The said suit was decreed declaring the said marriage to have been

dissolved with effect from 27th January, 1982. Relevant portion of the said

judgment and decree dated 21st July, 2000 reads as under :-

"Therefore in view of the decision of the

Hon'ble High Court of Punjab and Haryana in

case title as Smt. Sudarshan Kaur vs. Major

Manmohan Singh Dhatt in 1978 PLR 598 the case

of the plaintiff is decreed and it is declared that

marriage between the parties was solemnised on

26.10.1976 stands dissolved w.e.f. 27.1.1982 by

virtue of a memorandum of customary dissolution

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by the parties and defendant is further restrained

from interfering with the personal affairs of the

plaintiff, parties are left to bear their own cost.

Decree sheet be prepared."

Questioning the said judgment and decree, the First

Respondent herein filed an application before the High Court of Punjab and

Haryana at Chandigarh purported to be under Article 227 of the Constitution

of India, which was marked as Civil Revision No.3918 of 2000, contending

that as he was not a party in the said suit, he cannot prefer an appeal

thereagainst. In the said revision application, the First Respondent as

regards hsi locus standi to maintain the said application alleged :

"That the petitioner has the locus standi to

maintain the present petition inasmuch as he been

harassed and troubled a lot by Respondent No.3,

who has illegally grabbed the house of the

petitioner in connivance with one person Ajay

Sharma Petitioner's earlier tenant. The

petitioner has not been paid any rent for the house

for the last over 10 years. Respondent No.3 has

forged and fabricated some documents in

connivance with several persons including a stamp

vendor of Ludhiana. Though the said matter is

already a subject matter of the civil suit. But the

fact remains that the entire life of the petitioner

has been ruined by Respondent no.3 petitioner's

wife is bed-ridden for last two years due to the

shock arising from the illegal grabbing of house

by Respondent No.3, and the total family life and

mental peace of the petitioner has been shattered.

Petitioner has been facing spate of malicious and

motivated and ill found petitions at the behest of

Respondent no.3 and even his Advocate has not

been spared by him in launching malicious

prosecution by Respondent No.3. Whosoever

witness appeared to depose against Respondent

No.3, almost of all of those witnesses were

tormented, tortured intimidated and troubled by

Respondent No.3, almost of all of those witnesses

were tormented, tortured intimidated and troubled

by him and false cases were filed against them by

Respondent No.3. So much so, Respondent no.3

spelt venom against the Ld. Presiding Judge,

dealing with the case, due to which even the case

was transferred from the said court and later

contempt notices have already been issued to him

by this Hon'ble Court. All these atrocities and

illegalities committed by Respondent No.3, have

compelled the petitioner to seek the indulgence of

this Hon'ble Court in the matter of launching

appropriate departmental proceedings against him

by the respondents. Therefore, since the petitioner

has a direct cause of action in the matter

involving Respondent no.3, who has grabbed his

house illegally, hence, petitioner is aggrieved of

the illegal acts of Respondent no.3. Since the

authorities were trying to act in accordance with

the law in deciding representations moved by the

petitioner and now these are being scuttled by him

in connivance with the other non-official

respondent, hence, the petitioner is filing the

present petition in this Hon'ble Court requesting

the Hon'ble Court to set aside the impugned

judgment and decree as the same is illegal and

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arbitrary and an abuse of process of the court.".

A learned Single Judge of the High Court by reason of the

impugned judgment disposed of the said application directing :-

"After hearing the counsel for the

petitioner, the present revision stands disposed of

with the observations that let the petitioner S.M.

Sharma may file an appeal in the competent court

of jurisdiction within 30 days from today

challenging the judgment and decree dated 21st

July, 2000, irrespective of the fact that he was not

a party to the suit. Prima facie, S.M. Sharma is

aggrieved by the judgment and decree dated 21st

July, 2000 because his case is that this decree has

been obtained by Sarbjit Kaur, first wife of Baldev

Singh, in order to circumvent the action which is

likely to be taken by the department against

Baldev Singh and his second wife Paramjit Kaur."

It is not in dispute that pursuant to or in furtherance of the said

observations, Respondent No.1 preferred an appeal in the Court of the

District Judge, Ludhiana. The parties thereafter filed review applications in

the High Court. The review application filed by the appellant was also

dismissed by order dated 15th January, 2001.

The only question which arises for consideration in these

appeals against the aforementioned order is as to whether Respondent No.1

had any locus standi to question the said judgment and decree dated 21st July,

2000 passed by the Civil Judge (Junior Division), Ludhiana.

The statements made in his revision application, in our

considered opinion, do not disclose any cause of action so as to confer on him

'locus standi' to maintain the same.

There is no dispute that as against a decree, an appeal would be

maintainable in terms of Section 96 of the Code of Civil Procedure. Such an

appeal, however, would be maintainable only at the instance of a person

aggrieved by and dissatisfied with the judgment and decree. As noticed

hereinbefore, the dispute between the parties was in relation to a property.

The First Respondent herein, save and except, inter alia, making complaints

against the appellant and his wife to their respective employers purported to

be relying on or on the basis of the statements made by the appellant herein

during cross-examination in the aforementioned suit, had nothing to do with

the status of Sarbjit Kaur and the appellant herein as spouses or otherwise.

'Locus' of a person to prefer an appeal in a matter of this

nature is vital as the right of privacy of two spouses would be interfered

thereby. The court cannot enlarge the scope of 'locus' in a case of this nature

where the parties are fighting litigations. Allegations made by the First

Respondent in his revision application does not disclose any cause of action

for maintaining the said application nor does it state as to how and in what

manner he would be prejudiced if the impugned judgment is allowed to stand.

In the aforementioned premise bona fide of the First Respondent was also

required to be determined by the High Court. Having regard to the facts and

circumstances of the case, we are of the opinion that the application filed by

the First Respondent before the High Court was not a bona fide one but was

filed in furtherance of the pending disputes between the parties.

In the instant case, it is not necessary for us to determine the

question as to whether the judgment in question is a judgment in personam or

a judgment in rem. Herein, the status of the parties is not in question and

such judgments ordinarily cannot be said to be judgments in rem. Even if the

said judgment is a judgment in rem, the respondent herein could not have

questioned the same as he cannot be said to be aggrieved thereby. In that

view of the matter, the question as to whether in the instant case, the Civil

Court, Ludhiana, had any jurisdiction to pass the decree in question, takes a

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back seat.

It is now a well-settled principle of law that an ex parte decree

is as good as a contesting decree unless it is set aside. An ex parte decree can

be set aside by the court passing it or by an appellate court only at the

instance of a person aggrieved thereby.

It may be true that a decree obtained by fraud is a nullity. But

the question as to whether a decree has been obtained by fraud or not is again

a question which must be raised by a person who is interested in the subject-

matter thereof and not at the instance of a person who is a busy body. The

appellant and the aforementioned Sarbjit Kaur have a right of privacy. Such

a right of privacy extends not only to the matrimonial home but also to the

matter of dissolution of a marriage. A third party who has nothing to do with

relationship of the appellant and the said Sarbjit Kaur cannot be permitted to

intrude into their privacy by preferring an appeal only on one or more of the

grounds, as stated by the First Respondent in his application before the High

Court and as quoted supra. None of the said grounds, in our considered view,

confers locus on the First Respondent to prefer an appeal against the decree

passed by the learned Civil Judge.

The First Respondent in relation to his disputes with the

appellant herein has been pursuing his remedies in appropriate proceedings.

What would be the effect of the said judgment and decree in a departmental

proceeding is required to be determined by the appropriate authorities. Only

because a departmental proceeding was initiated against the appellant on the

complaint of Respondent No.1, he, only thereby, cannot be said to have any

locus to prefer an appeal as has been contended by Mr. Srivastava. A person

aggrieved to file an appeal must be one whose right is affected by reason of

the judgment and decree sought to be impugned. It is not the contention of

Respondent No.1 that in the event the said judgment and decree is allowed to

stand, the same will cause any personal injury to him or shall affect his

interest otherwise. Dissolution of marriage of the appellant and his first wife

would also have no repercussion on the property in suit. As noticed

hereinbefore, the effect of the aforementioned statements made by the

appellant in the second suit shall have to be considered by the courts and the

departments concerned on their own merits.

We are, therefore, of the opinion that Respondent No.1

herein cannot be said to have any locus standi to prefer an appeal against the

judgment and decree passed by the learned Civil Judge, Ludhiana . As a

logical corollary of the said finding, it must necessarily be held that the

learned Single Judge of the High Court was not correct in disposing the civil

revision petition by making an observation which affected the interest of the

appellant and that too without giving an opportunity of hearing to him.

It is not correct to contend that the appellant herein has no

locus standi to prefer these appeals as an order adverse to his interest has

been passed by the High Court. It is also not correct to contend that the

appellant can raise his contentions in appeal insofar as he cannot be permitted

to fight out a matter which, in our opinion, is not maintainable at the instance

of Respondent No.1.

Admittedly several other proceedings are pending between the

parties, but it is not necessary to refer thereto having regard to the short

question involved in the matter.

For the reasons mentioned hereinabove, the impugned orders

cannot be sustained which are set aside. The appeals are disposed of

accordingly. In the facts and circumstances of the case, the appellant herein is

also entitled to costs quantified as Rs.5,000/-.