KRISHNABAI v. KRISHNARAO JANANTRAO DESAI — 1994 DIGILAW 117 (KAR)

N. D. V. BHATT, J. ( 1 ) THIS revision petition is directed against the order dated 23-10-1990 passed by the Principal Munsiff, Gadag on I. A. No. I in F. D. P. 23/89. By the said order the Principal Munsiff, Gadag allowed I. A. I. filed by the instant petitioner by directing to call back the records sent to the Deputy Commissioner on 2-1-1990 for effecting partition. ( 2 ) THE facts relevant for the disposal of this revision petition, briefly stated, are as under: plaintiff - Krishnabai (present revision petitioner) filed O. S. No. 63/84 against four defendants (present respondents-1 to 4) praying for a decree for partition and separate possession of her share in the suit properties. The suit was initially contested by defendants 1 and 2. However, later the same was compromised. A compromise decree in terms of the compromise was passed on 8-1-1986. The terms of the decree, relevant for consideration are as under : (Vernacular Matter Omitted - Ed.) according to the decree-holder, defendants-1 and 2 failed to pay the amount within the stipulated time or for that matter at any time later. She therefore filed FDP. No. 23/ 1989 on the file of the Civil Judge at Gadag praying for transmitting the papers to the Deputy Commissioner, Dharwar to effect partition under Section 54, C. P. C. It appears that in the meanwhile defendants-1 and 2 had sold the properties to defendants-5 and 6. They were therefore added as party defendants to FDP No. 23/ 89. The Court of Munsiff by its order dated 2-1-1990 directed that the papers be sent to the Deputy Commissioner, Dharwar presumably to effect partition under Section 54, C. P. C. ( 3 ) WHEN this was so, the instant respondents-5 and 6 who were added as party defendants-5 and 6 to FDP. No. 23/1989 filed an application before the Munsiff, Gadag at I. A. No. I under Order 13, Rule 10 R/ W Section 151, C. P. C. praying for recalling the papers sent to the Deputy Commissioner. Among other things, they alleged that defendant-1 had executed a registered sale deed in favour of defendants-5 and 6 for Rs. 29,000/- on 25-4-1986 and handed over the possession of the suit land to them and they have become the owners in respect of the said land. Among other things, they alleged that defendant-1 had executed a registered sale deed in favour of defendants-5 and 6 for Rs. 29,000/- on 25-4-1986 and handed over the possession of the suit land to them and they have become the owners in respect of the said land. It was also alleged by them that plaintiff had filed Execution Petition No. 140/1986 in the Civil Judge's Court at Gadag demanding Rs. 15,000/- from defendants-1 and 2 and that the said execution case came to be dismissed. They have also made reference to G and W No. 1 / 86 in para-5 of the affidavit accompanying the application. They asserted that plaintiff had no right to get the partition effected as prayed for by her. On these grounds in substance, they prayed for recalling the papers sent to the Deputy Commissioner under Section 54, C. P. C. ( 4 ) THE said application was resisted by the plaintiff. ( 5 ) THE learned Munsiff, on a consideration of the submissions and for the reasons reflected in his impugned order dated 23-10-1990 allowed I. A. No. I and directed the office to call back the records sent to the Deputy Commissioner, Dharwar on 2-1-1990 for partition. It is this order which is challenged in this revision petition. ( 6 ) I have heard the learned Counsel appearing on either side. ( 7 ) SINCE it was disclosed from the records of the lower Court that in G. and W. 1 / 86 the sale relied on by the instant respondents-5 and 6 was set aside and that the same was challenged in C. R. P. No. 2008/ 87. It was felt necessary to seek information as regards the result of the said C. R. P. For that purpose the matter was taken up before the Court on 20-4-1994 at 2-30 p. m. It was submitted by Sri Chandanagoudar, learned Counsel for respondent-5 that the order in CRP No. 2008/ 87 was set aside and the matter has been sent back to the Civil Judge and the same is pending hearing. Sri Naik, learned Counsel for the instant petitioner did not dispute the fact that the C. R. P. was allowed and the matter was remitted to the Civil Judge for fresh disposal according to law. Sri Naik, learned Counsel for the instant petitioner did not dispute the fact that the C. R. P. was allowed and the matter was remitted to the Civil Judge for fresh disposal according to law. However, he submitted that he did not have the precise information as regards the pendency or otherwise of the said matter before the Civil Judge. ( 8 ) IT is not necessary for this Court to probe further in that behalf. ( 9 ) THE main thrust of the submission of the learned Counsel for the petitioner in this revision petition is that the learned Munsiff has erred in allowing I. A. No. I and recalling the papers sent to the Deputy Commissioner for partition. It was argued by the learned Counsel that once when the partition papers are sent to Deputy Commissioner under Section 54, C. P. C. the Munsiff became functus officio and he had no jurisdiction to call back the papers. In this connection, the learned Counsel has relied upon the decision in Shripal Malsarji v. Nagappa, (1975 (1) Kant LJ Sh N 122 - Sh N. page 33 ). In the said case, it is pointed out that once a decree for partition is passed by the Civil Court, that court becomes functus officio with regard to the subject matter of the suit and the Civil Court has no jurisdiction over the proceedings before the Deputy Commissioner under Section 54, C. P. C. It is further pointed out in the said case that the Court has no jurisdiction to call back the partition papers. Reliance is also placed on the decision in Ganapatrao Roajirao Desai v. Balavant Krishnaji Desai (1965 (2) Mys LJ 768 ). In the said case, it is pointed out that the Court which passed decree retains no power or jurisdiction to correct or review the partition made by the Collector under Section 57, C. P. C. The learned Counsel has also placed reliance on the decision of the Supreme Court in Khemchand Shankar Choudhary v. Vishnu Hari Patil ( AIR 1983 SC 124 ). In the said case, the Hon'ble Supreme Court has pointed out that the transferees during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to the Government which is the subject matter of the suit have locus standi to appear before the Revenue Authorities to proceedings under Section 54 and ask for an equitable partition of the lands even though they had not been impleaded as parties to the suit in the Civil Court. Pressing into service these decisions, the learned Counsel argued that the lower Court has erred in recalling the papers from the Deputy Commissioner. ( 10 ) ON the other hand, the learned Counsel for respondent-5 argued that having regard to the nature of the decree it was necessary for the Munsiff to see as to whether the clause relating to partition was still operative and in that context to decide that aspect notice to defendants-5 and 6 who are the purchasers of the property was a must, more so having regard to the fact that they were added as party defendants by the plaintiff herself in the course of the decree final proceedings. It was argued by the learned Counsel that failure to issue notice to respondents-5 and 6 has rendered the order directing the dispatch of papers to the Deputy Commissioner void and that therefore, the order on I. A. No. I calling back the papers cannot be found fault with. ( 11 ) I have given my consideration to the submissions made by the learned Counsel on either side. ( 12 ) THE legal proposition canvassed by Sri Naik, learned counsel for the petitioner is unassailable in the context of the decisions cited at the Bar by him and alluded to earlier. However, it is necessary to notice here that the decree in question in this case is not a decree for partition simpliciter. The operative portion of the decree in O. S. No. 63/84 which is extracted hereinabove at para-2 would go to show that the clause in the said decree regarding partition comes into operation only if the amount of R s. 15,000/- was not paid by defendants-1 and 2 within two months from the date of decree. The operative portion of the decree in O. S. No. 63/84 which is extracted hereinabove at para-2 would go to show that the clause in the said decree regarding partition comes into operation only if the amount of R s. 15,000/- was not paid by defendants-1 and 2 within two months from the date of decree. In that view of the matter, it was necessary for the lower Court to see as to whether the clause as to partition had become operative. If only the same had become operative by the non-payment of the amount of Rs. 15,000/- then only the question of sending the papers to the Deputy Commissioner for partition under Section 54, C. P. C. would arise for consideration; and otherwise not. It is noticed that defendants-5 and 6 who were added as parties as such by the decree-holder in FDP No. 23/89 on the allegations that they purchased the suit property from defendant-1 for valuable consideration were required to be heard. The order sheet dated 2-1-1990 by which the papers were sent to the Deputy Commissioner reads as under :"pltff by Sri RKS. P. F. not paid. P. F. paid today. send the papers D. C. . . . . . . . . . "it is therefore clear that the instant respondents-5 and 6 were not heard before sending the papers to the Deputy Commissioner. Sri Chandangoudar, learned Counsel for respondent-5 submitted that the allegations reflected in para-3 of F. D. P. No. 23/ 89 would go to show that on the showing of the decree holder herself the amount of Rs. 15,000/- required to be paid by defendants-1 and 2 to her was perhaps paid and if an opportunity was given to defendants-5 and 6 of being heard, they would have shown that the same was paid by defendants-1 and 2 that the clause as to partition ceased to become operative. Sri Naik, learned counsel for the petitioner however argued that the objections filed by defendants-5 and 6 at a later stage or the affidavit accompanying the application at I. A. No. I filed by them do not disclose such a contention and that therefore, the said contention cannot be allowed to be raised at this stage. It is further submitted by Sri Naik that such a contention is an afterthought. In my opinion, it is not necessary to go into too many details. It is further submitted by Sri Naik that such a contention is an afterthought. In my opinion, it is not necessary to go into too many details. It will suffice if it is noted that in the context of the nature of the decree, it was absolutely necessary for the learned Munsiff to hear defendants 1 and 2 and therefore defendants-5 and 6. It was necessary to hear them before dispatching the papers to the Deputy Commissioner because, the learned Munsiff was required to decide as to whether the clause relating to partition had come into operative or had ceased to operate forever. Failure to give that opportunity apart from being a procedural irregularity by itself, would also amount to the violation of the principles of natural justice. The observation of Lord Wright in General Medical Council v. Spackman (1943 Appeal Cases 627) may be noted. It is as under :"if the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. "further this Court in Muniyallappa v. Krishnamurthy B. M. (1977 (1) Kant LJ 389) followed the dictum of lord Wright. Further, the Supreme Court in Swadeshi Cotton Mills v. Union of India ( 1981 (1) SCC 664 ) has stated the principle in the following words :"84. Before we conclude the discussion on this point, we may notice one more argument that has been advanced on behalf of the respondents. It is argued that this was a case where a prior hearing to the company could only be a useless formality because the impugned action has been taken on the basis of evidence, consisting of the balance sheet, account books and other records of the company itself, the correctness of which could not have been disputed by the company. On these premises, it is submitted that non-observance of the rule of audi alteram partem would not prejudice the company, and this make no difference. 85. The contention does not appear to be well founded. Firstly, this documentary evidence, at best, shows that the company was in debt and the assets of some of its 'units' had been hypothecated or mortgaged as security for those debts. 85. The contention does not appear to be well founded. Firstly, this documentary evidence, at best, shows that the company was in debt and the assets of some of its 'units' had been hypothecated or mortgaged as security for those debts. Given an opportunity the company might have explained that as a result of this indebtedness there was no likelihood of fall in production which is one of the essential conditions in regard to which the government must be satisfied before taking action under S. 18aa (1) (a ). Secondly, what the rule of natural justice required in the circumstances of this case, was not only that the company should have been given an opportunity to explain the evidence against it, but also an opportunity to be informed of the proposed action to take over and to represent why it be not taken. 94. The further question to be considered is: What is the effect of the non-observance of this fundamental principle of fair play? Does the non-observance of the audi alteram partem rule, which is the quest of justice under the rule of law, has been considered universally and most spontaneously acceptable principle, render an administrative decision having civil consequences, void or voidable? In England, the outfall from the water-shed decision, Ridge v. Baldwin (1964 AC 40) brought with it a rash of conflicting opinion on this point. The majority of the House of Lords in Ridge v. Baldwin held that the non-observance of this principle, had rendered the dismissal of the Chief Constable void. The rationale of the majority view is that where there is a duty to art fairly, just like the duty to act reasonably, it has to be enforced as an implied statutory requirement, so that failure to observe it means that the administrative act or decision was outside the statutory power, unjustified by law, and therefore ultra vires and void. In India, this Court has consistently taken the view that a quasi-judicial or administrative decision rendered in violation of the audi alteram partem rule, wherever it can be read as an implied requirement of the law, is null and void (e. g. Menaka Gandhi case, (1978) 1 SCC 248 : ( AIR 1978 SC 597 ) and S. L. Kapoor v. Jagmohan, (1980) 4 SCC 379 : ( AIR 1981 SC 136 ) ). In the facts and circumstances of the instant case, there has been a non-compliance with such implied, requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The impugned order, therefore, could be struck down as invalid on that score alone. But, we refrain from doing so, because the learned Solicitor General in all fairness, has both orally and in his written submissions dated 28/08/1979, committed himself to the position that under S. 18f the Central Government in exercise of its curial functions, is bound to give the affected owner of the undertaking takenover, a "full and effective hearing on all aspects touching the validity and/or correctness of the order and/or action of taken-over, "within a reasonable time after the take-over. The learned Solicitor General has assured the Court that such a hearing will be afforded to the appellant-company if it approaches the Central Government for cancellation of the impugned order. It is pointed out that this was the conceded position in the High Court that the aggrieved owner of the undertaking had a right to such a hearing. "in the light of what is stated hereinabove, the position that would emerge is that the order directing the dispatch of the papers to the Deputy Commissioner without hearing the defendants particularly defendants 5 and 6 was not permissible. For the reasons stated hereinabove, it violated the principles of natural justice. In that view of the matter, I would say that there was a duty cast upon the learned Munsiff to correct his order. It is in that context that the order passed by the learned Munsiff recalling the papers from the Deputy Commissioner cannot be found fault with. Even at the risk of repetition, I hasten to add here that the various decisions cited at the Bar and pressed into service by Sri Naik, learned counsel for the petitioner has no application to the facts of this case, having regard to the fact that the decree in question was not just a decree for partition simpliciter but the right of the decree-holder to get the suit property partitioned was conditional. The condition is already referred to earlier. Whether that condition was satisfied or not was a matter which was required to be decided, since the same would have a bearing on the very existence of the decree for partition. The condition is already referred to earlier. Whether that condition was satisfied or not was a matter which was required to be decided, since the same would have a bearing on the very existence of the decree for partition. In this view of the matter, the ultimate order passed by the learned Munsiff recalling the papers will have to be upheld. What is required to be done by the learned Munsiff is to decide as to whether the clause regarding the partition has become operative or whether it has ceased to operate. In otherwords, whether the condition as to payment of Rs. 15,000/- by defendants 1 and 2 within the stipulated time was satisfied or not satisfied is a question required to be considered by the learned Munsiff. If that condition was not satisfied obviously, the decree for partition would become operative and the papers will have to be sent to the Deputy Commissioner for partition. If, however, the condition to make the payment of Rs. 15,000/- within the stipulated time was satisfied then the question of sending the papers to Deputy Commissioner does not arise. This is a matter which is required to be decided after hearing both the parties and after giving opportunities to both the sides to lead evidence if they so desire. For the reasons stated hereinabove and subject to the observations made hereinabove, the revision petition is dismissed. The learned Munsiff shall dispose of the matter in question in the light of what is stated hereinabove positively before the end of August 1994 (August Nineteen Ninety Four) and shall send a report of compliance of this direction to this Court. Petition dismissed. --- *** --- .