Ganesh Sarkar v. Ainul Hague Ansari — 1980 DIGILAW 420 (CAL)

JUDGMENT (1.) THIS Rule is directed against order No. 48 dated 8.2.80 passed by the learned Judge, 4th bench, City Civil Court, Calcutta. The Rule was issued by his Lordship Mr. Justice g. N. Ray. After the Rule was issued, on the prayer of some of the opposite parties consented to by the petitioners, upon an application being made, his Lordship Mr. Justice D. C. Chakravorti was pleased to issue certain directions and also to appoint as Special Officer, one of the opposite-parties, to hold the election which is the subject-matter of dispute in the suit being title Suit No. 1603 of 1968, now pending in the City Civil Court, 4th Bench. After the election was duly held by the Special-officer application was made on behalf of the petitioners for certain directions before the vacation Judge Mr. Justice S. C. Ghosh', and another application was filed for modification of the order passed by his Lordship Mr. Justice S.C. Ghosh and an application was filed on behalf of some of the opposite parties for recalling the order of the 1st October, 1980 passed by Mr. Justice D. C. Chakravorti. The Rule as well as these applications have been heard together. (2.) THE petitioners who are defendants in Title Suit No. 1603 of 1978 challenged the order, as already stated, passed by the learned Judge, City Civil Court, Calcutta on the 8th February, 1980. Before proceeding to deal with the merits Of the Rule, it is necessary to state some of the salient features of the case. (2.) THE petitioners who are defendants in Title Suit No. 1603 of 1978 challenged the order, as already stated, passed by the learned Judge, City Civil Court, Calcutta on the 8th February, 1980. Before proceeding to deal with the merits Of the Rule, it is necessary to state some of the salient features of the case. The plaintiffs who are three in number, filed a title suit being title Suit No. 1603 of 1978 against the defendants and prayed for leave of the learned Judge under Order 1 Rule 8 of the code of Civil Procedure to file the said suit for and on behalf of the members of the west Bengal Pradesh National Trade Union congress and for a declaration that the purported election of the bearers and the members of the West Bengal Pradesh National trade Union Congress held on 23rd July, 1978 is void, inoperative and that the defendants are not the legally elected office bearers and/or working committee members of the West Bengal Pradesh national Trade Union Congress and for a permanent injunction restraining the defendants from interfering with the functioning of the plaintiffs as Vice President and members of the working committee and general council member of the West Bengal Pradesh national Trade Union Congress and/or further giving effort to the purported election held on the 23rd July, 1978 and/or representating themselves as the office bearers of the working committee members and/or permanent injunction restraining the defendants from holding the working committee meeting and/or sending any representatives etc. The learned Judge, City Civil Court granted leave to file the suit as a representative suit by the plaintiffs and he further directed that notices may be inserted in the statesman to the effect that a representative suit has been filed for and on behalf of the members of the West Bengal Pradesh national Trade Union Congress. It appears from the records that the insertion in the statesman was not made at all. On the 12th November, 1979, the parties to the said suit agreed to have the matter resolved through an arbitrator and accordingly the learned Judge by his Order No. 39 dated 12th November. It appears from the records that the insertion in the statesman was not made at all. On the 12th November, 1979, the parties to the said suit agreed to have the matter resolved through an arbitrator and accordingly the learned Judge by his Order No. 39 dated 12th November. 1979 was pleased to pass an order appointing Shri Shiba Prosad Roy, secretary of the City Civil Court Bar Association as Arbitrator who was to see that the election of the working committee is held within 15 days from the date of the said order. Shri Shiba Prasad Roy in pursuance of the order passed by the learned judge issued notices to the general council members for holding the election of the working committee and its office bearers on 24th of November, 1979 at 3 P.M., in the hall of the Bar Association of the City civil Court but the election could not be held as there was pandemonium amongst the members. Thereafter Sri S.P. Roy resigned and an application was made on behalf of the parties for appointment of another Arbitrator for holding the election but this application was not heard and it was adjourned to 11.2.80 for orders. It is alleged that before the date fixed, for final hearing of that application on 8.2.80 the defendant No. 5 and defendant No. 19 were appointed as joint Arbitrators by the learned judge upon an application being made by some of the defendants and some of the plaintiffs. But this application was not signed by all the defendants nor by all the plaintiffs but their learned Advocates signed the application. This order of appointment of joint Arbitrators, viz., the defendant No. 5 and 19 upon the application signed by the learned Advocates of the parties is challenged in the Rule as being without jurisdiction being a violative of Order 23 rule 3 (b) of the Code of Civil Procedure. It was strenuously argued by the learned advocate, Mr. Gupta representating the plaintiffs opposite parties and Mr. Subhas Banerjee representing the petitioners that the suit being a representative suit, it was incumbent on the parties before coming to an agreed order in respect of the appointment of joint Arbitrators to have the application signed by all the parties and not their lawyers only. Gupta representating the plaintiffs opposite parties and Mr. Subhas Banerjee representing the petitioners that the suit being a representative suit, it was incumbent on the parties before coming to an agreed order in respect of the appointment of joint Arbitrators to have the application signed by all the parties and not their lawyers only. Order 23, rule 3 after the amendment makes it clear that a lawful agreement or compromise can only be made in writing and signed by the parties. Furthermore, it has been pointed out by the learned Advocates for the petitioners and the plaintiffs opposite parties that by virtue of rule 3 (b) of the said Order no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceeding and in the explanation to the said rule representative suit has been defined as "a suit under rule 8 of Order 1. "Hence the impugned order is a nullity, as it does not satisfy the above conditions. Accordingly that is liable to be set aside. On the other hand, Mr. Nani Chakravorti, on behalf of the opposite parties defendants has pointed out that the provisions of Order 3 runs thus "that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting as the case may be, on his behalf. " so far as Order 23 rule 3 is concerned which enjoins that any lawful agreement or compromise must be in writing and signed by the parties it is submitted by Mr. Nani chakravorti that when there is an appearance by the party in person then alone this provision of Order 23, rule 3 will apply but when he is represented by a pleader or by his recognised agent, it is sufficient if a pleader or the learned Advocate signs any application for compromise, as in the instant case. Further it is argued by Mr. Further it is argued by Mr. Nani chakravorti that the suit, from which the rule arises is not a representative suit, in as much as in the case of a representative suit order 1 rule 8 enjoins under clause (1) (a) that the suit will be filed with the permission of the court under clause (2). In a representative suit, the court shall give, at the expense of the plaintiffs, notice of institution of the suit to all persons, either by personal service or where by reason of the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. In this case, it is admitted that the court granted the plaintiffs leave to file the suit in a representative capacity and also directed that the plaintiffs shall insert in the newspaper (Statesman) that such a suit has been filed so that, that may operate as a notice to all other persons interested in the suit to join either as plaintiffs or as defendants in case they wanted to contest the suit. This last part of the order of the learned Judge was not parried out and the application was made by some of the parties through their learned advocates for appointment of joint arbitrators to hold the election, viz,, order dated the 8th February, 1980. It is argued by Mr. Nani Chakraborti that this suit cannot be said to have been filed in a representative capacity as the insertion has not been made in the 'statesman' to serve as notice to those who would like to join and support the suit or to contest the suit. Accordingly order 23 rule 3 (B) would not come into operation. Therefore, the suit was relegated to the position of an ordinary suit. In this connection, the cases cited on behalf of the petitioners may be referred to, on the effect of non-compliance of the provisions of Order 1, Rule 8 regarding failure to publish in vitiating the decree. This would also apply to any interlocutory order passed in a suit. The cases reported in AIR 1970 SC 794 and 838 as well as AIR 1964 MP 101 and 108, air 1970 Kashmir 26 and AIR 1952 Bombay 76 and also 35 CWN 589 have been cited by the learned Advocate appearing for the petitioners. This would also apply to any interlocutory order passed in a suit. The cases reported in AIR 1970 SC 794 and 838 as well as AIR 1964 MP 101 and 108, air 1970 Kashmir 26 and AIR 1952 Bombay 76 and also 35 CWN 589 have been cited by the learned Advocate appearing for the petitioners. The case reported in AIR 1970 SC 838 has been cited by the learned advocate for the petitioners in order to substantiate his argument that there cannot be any question of estoppel or waiver against a statute as argued by Mr. Nani Chakravorti. This case, however, supports his contention that though the petitioners or some of them or their learned Advocates had signed the application praying for appointment of joint arbitrators they cannot be debarred from moving against the order passed by the learned Judge inasmuch as that order was passed by the learned Judge in violation of Order 23, Rule 3 (b) of the code of Civil Procedure. The facts of the case are as follows :- a dectee in an ejectment suit was passed in favour of the plaintiff-against the tenant defendant in terms of compromise arrived at between the parties to the following effect : - (a) Decree for ejectment be passed in favour of the plaintiff against the defendant, the decree will be executable after the 31st December, 1958 if the defendant does not give possession till then. The standard rent of the premises will be fixed at Rs. 40/-per mensem instead of Rs 50/- paid at "present payable from the 1st July, 1955 till the defendant vacates the premises". The learned Court recorded the following order : "in view of the statement of the parties' counsels and the written compromise, a decree is passed in favour of the plaintiff against the defendant". The defendant did not vacate the premises as agreed to. On the other hand, he challenged the validity of the decree alleging that the same had been passed in contravention of the provisions of section 13 of the Delhi and ajmer Rent Control Act, 1952. Hence the decree was a nullity. He failed before the Sub-Judge and also on appeal before the Senior Sub-Judge, Delhi. On the other hand, he challenged the validity of the decree alleging that the same had been passed in contravention of the provisions of section 13 of the Delhi and ajmer Rent Control Act, 1952. Hence the decree was a nullity. He failed before the Sub-Judge and also on appeal before the Senior Sub-Judge, Delhi. The High Court on revision held that the decree was nullity and the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in section 13 of the Act existed because the court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed". (3.) IT was held therein that" on the plain wording of section 3 (1), the court was forbidden to pass the decree. The decree is a nullity and cannot be en forced in execution. The Court accordingly declared that the decree in so far as it directs delivery of possession of the premises to the plaintiff is a nullity and cannot be executed". In the case reported in AIR 1970, Jammu and Kashmir, page 26 (F.B.) the plea of estoppel against a statute has been explained, thus : - "in cases where there is a statutory provision for the benefit of a party, the same can be waived and the parties can contract out of the statute by entering into a compromise only in the following circumstances :- Where there is no express prohibition or clear inhibition for bidding the contract so that a breach of the statutory provisions may amount to a patent illegality. In such cases no amount of agreement can be used to neutralize the effect of an express provision engrafted by the statute. Where the statutory provision is purely personal to the party concerned and meant for his benefit and is not in public interest it follows that where there is a statutory provision which is not for the personal benefit or protection of a party alone but is also in public interest, the parties cannot be allowed to contravene such a statutory provision". (4.) THE other cases, as already stated support this contention of the learned advocate for the petitioners. As against these cases, Mr. (4.) THE other cases, as already stated support this contention of the learned advocate for the petitioners. As against these cases, Mr. Nani Chakravorti cited a passage from an English author on Estoppel at page 133 and it may be quoted ;- "the general rule of estoppel by election comes into play : that is to say, if by words, or (as is almost invariably the case) by conduct or inaction, he represents to the other party litigant his intention to adopt one of the two alternative and inconsistent proceeding or positions, with the result that the latter is thereby encouraged to adopt or persevere in a line of conduct which he otherwise would have abandoned or modified, Or (as the case may be) to change tactics from which he otherwise would never have deviated, the first party is estoppeled, as against his antagonist from resorting afterwards to the course or attitude which of his free choice, he has waived or discarded". The principles regarding waiver have been elucidated in the case reported in air 1979 S. C. page 621 at page 629. In that case, the High Court had held :- "even if there was an assurance given by one of the respondents on behalf of the State and such assurance was binding on the State Government on the principle of promissory estoppel, the appellant had waived his right under it by accepting the concessional rates of sales tax set out in the of the respondent. " (5.) THAT view was repelled by the supreme Court on the following grounds : "in the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waive) was not taken by the State Government in the affidavit tiled on its behalf in reply to the writ petition, nor was It indicated even vaguely in such affidavit. Here it was common ground that the plea of waive) was not taken by the State Government in the affidavit tiled on its behalf in reply to the writ petition, nor was It indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition that, was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea waiver means abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be "an intentional act with knowledge" (Earl of Darnley vs. London Chatnam and Dover Rly. Co., (1867) 2 HL 43 at page 57). There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it". It is pointed out in halsbury's Laws of England (4th Ed)Vol. 16 in para 1472 at page 994 that for a waiver to be-"effectual it is essential that the person granting it should be fully informed as to his rights". (6.) DEALING with the question of promissory estoppel which is variously described as 'equitable estoppel", 'quasi estoppel' and 'new estoppel' it is held that it is not really based on the principle of estoppel but it is a doctrine evolved by equity in order to prevent injustice where a promise is made by a person knowing that it would be acted on by the person to whom it is made and in fact it is so acted on and it is inequitable to allow the party making the promise to go back upon it. The doctrine of promissory estoppel need nut, therefore, be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why, it should be given only a limited application by way of defence. This case however does not help the petitioners nor the opposite parties. There can be no question of waiver or estoppel against express provisions of the statute as is clear from the principles laid down in the Supreme Court case acted above namely A 1970 SC p. 794 and 838 followed in A 1970 Kashmir 26. This case however does not help the petitioners nor the opposite parties. There can be no question of waiver or estoppel against express provisions of the statute as is clear from the principles laid down in the Supreme Court case acted above namely A 1970 SC p. 794 and 838 followed in A 1970 Kashmir 26. As stated earlier, regarding the provisions of Order 1 rule 8 and non-compliance with clause 2, rule 2 of the said order, how it affects the suit, the case reported in AIR 1960 Punjab page 26 has been referred to, by Mr. Nani chakravorti. It has been held by Mr. Justice dua in this case that a decision in a suit, in which the defendants have been served under Order 1 rule 8 Code of Civil procedure, operates as res judicata, even as against all those persons for and on whose behalf the actual parties on record purport to defend the suit. Hence the trial court has to be particularly careful and vigilant in satisfying itself that the provisions of law have been strictly complied with. Where neither a proper notice is issued under Order 1 rule 8 nor it is duly served on the persons concerned, the procedure amounts to an irregularity which vitiates the entire proceedings in the lower court and cannot be condoned under section 99 of the Code of Civil Procedure. When the provisions as to the notices in Order/rule 8 are not substantially complied with and a decree is passed in favour of the plaintiffs, the proper order to be passed on appeal is to set aside the decree and remand the case to be proceeded with according to law after effecting proper service oh the defendants in accordance with the provisions of Civil Procedure Code. At page 28, paragraph 6, it has been held that any irregularity of this kind vitiates the entire proceeding in the lower court. The provisions as to notice contained in Order 1 rule 8 Civil Procedure Code are mandatory and not directory and must be substantially fulfilled before a decree can be allowed to stand as passed under it. A breach of these provisions is calculated to affect the decision of the case on merits and may be fraught with serious consequences. The provisions as to notice contained in Order 1 rule 8 Civil Procedure Code are mandatory and not directory and must be substantially fulfilled before a decree can be allowed to stand as passed under it. A breach of these provisions is calculated to affect the decision of the case on merits and may be fraught with serious consequences. The general rule is that all persons interested in a suit should joined as parties but Order 1 rule 8 makes an exception to that rule in the interest of public convenience. The Rule however provides that after such permission is obtained under Order 1 rule 8, the court shall give notice of the institution of the suit to all the persons concerned. The reason is that when notices are issued to the persons concerned, a large number of persons may come forward and ask to be joined as parties to the suit and the pleadings put in by them may have a shattering effect on the plaintiffs' case as disclosed in the plaint. This case has been cited by Mr. Nani Chakravorti but this does not help him at all on the contrary it helps the petitioners inasmuch as it is patent from the records that the notice as directed by the court to be inserted in the newspaper (Statesman) was not made and inspite of that the subsequent orders were passed upon agreement and compromise between some of the parties only. On this ground alone, the order passed by the learned Judge is liable to be set aside. Mr. Chakravorti however has taken some other points, namely that the application under section 115 of the code of Civil Procedure is not maintainable, viz., firstly that the petitioner is not aggrieved by the order passed by the learned judge inasmuch as he was a party to the agreement for appointing the joint arbitrators and, therefore, the first ingredient of section 115 C.P.C. is not satisfied. Moreover, it is not stated in the petition what irreparable injury and injustice would be suffered by the petitioners by the order made with their consent. These points need not be decided inasmuch as I have found that there can be no question of petitioners being estopped as there has been a clear violation of the provisions of Order 1 rule 8 as well as Order 23 rule 3 (B). Therefore, the application is maintainable. These points need not be decided inasmuch as I have found that there can be no question of petitioners being estopped as there has been a clear violation of the provisions of Order 1 rule 8 as well as Order 23 rule 3 (B). Therefore, the application is maintainable. Accordingly, the ' Rule is made absolute. (7.) NOW I have to consider the application for vacating the order of Mr. Justice d. C. Chakravorti whether that application can stand the test of legality. It appears from the records that when the application was made before Mr. Justice D. C. Chakravorti, only two of the defendants filed the application for appointing a Special Officer and the petitioners consented to the same. Others were not given any notice of the said application and there was no scope for any objection being made at a subsequent stage of the case. It is indeed regrettable that such an order was passed and although this order was made without prejudice to the rights and contentions of the parties, the Special Officer was not only appointed but he held the election and only for the timely interference of the opposite parties, that an order for stopping the publication of the result of the election was made. It would have resulted in great injustice to the other defendants if such an order is not recalled inasmuch as they got no opportunity to represent their case or their objections, if any, to the appointment of a Special Officer. I need not go into the allegations made against special officer but I must say that it is against the principle of natural justice to appoint a person who himself stood as a candidate for being elected to the working committee of the West Bengal Pradesh National Trade Union Congress, in that election, whether he has fairly conducted the election or need not gone into in view of the fact that he cannot appear to be disinterested person to be appointed as a Special Officer. In the circumstances, I recall the order dated the 1st October, 1980. Accordingly, the application made on behalf of the opp. parties for vacating the impugned order succeeds. The application for modification filed on behalf of the petitioners stands rejected. The Rule as observed earlier is made absolute. In the circumstances, I recall the order dated the 1st October, 1980. Accordingly, the application made on behalf of the opp. parties for vacating the impugned order succeeds. The application for modification filed on behalf of the petitioners stands rejected. The Rule as observed earlier is made absolute. The records will go back to the learned judge to act according to the observations made in the judgment.