KARAN SINGH NINAYAK v. STATE OF WEST BENGAL — 1999 DIGILAW 113 (CAL)

B. PANIGRAHI, J. ( 1 ) BY an application dated 19th February, 1999, the writ petitioner made a prayer to implead Md. Ali Monad, the then District Land and Land reforms Officer and A. S. O. , Barasat, 24 Parganas (N) as respondent No. 8 and the Deputy Land and Land Reforms Officer, A. S. O. 24-Parganas (N) as respondent No. 9. The writ petitioners filed the writ petition under Article 226 of the Constitution of India before a learned Single Judge, which, eventually, appeared before a Division Bench Judge and was disposed of on 11th June 1997. The respondents State, being aggrieved by and affected with the judgment of the Division Bench preferred a Special Leave Petition in Civil Appeal No. 8827 of 1997 before the Hon'ble Supreme Court. ( 2 ) THE Hon'ble Supreme Court by the judgment dated 9th November, 1998 set aside the judgment of the Division Bench and remitted the matter again to decide the same in accordance with the law without going into the merits of the case of the respective parties. It was inter alia directed that the writ petition would be withdrawn from the learned Single Judge and be heard and disposed of by the Appellate Court with the concurrence of both the parties. The Hon'ble Supreme Court has also permitted this Court to pass any other interim order of status quo. The parties have been further permitted to pray for further interim order/orders as may be thought necessary by them. After the matter appeared in this Court for further hearing, the respondent, State, with the leave of the Court filed a supplementary affidavit. It has been, inter alia stated that the writ petition without impleading the Deputy District Land and Land Reforms Officer, 24-Parganas (N) who passed the vesting order on 15. 5. 1995 must fail. ( 3 ) UPON receipt of the copy of the supplementary affidavit, the writ petitioner filed this application to implead the then Deputy Land and Land Reforms Officer Md. Ali Monad as respondent No. 8. The opposite parties have also filed their affidavit-in-opposition controvert all such allegations made by the writ petitioners. ( 4 ) MR. 5. 1995 must fail. ( 3 ) UPON receipt of the copy of the supplementary affidavit, the writ petitioner filed this application to implead the then Deputy Land and Land Reforms Officer Md. Ali Monad as respondent No. 8. The opposite parties have also filed their affidavit-in-opposition controvert all such allegations made by the writ petitioners. ( 4 ) MR. Mukherjee, the learned advocate appearing for the writ petitioners has at the outset submitted that the Hon'ble Supreme Court has remitted the matter giving full scope to this Court to consider the respective contentions of the parties and decide the case in accordance with law. The Hon'ble Supreme Court has never restricted the scope of hearing of the writ petition in any manner. The writ petitioners have challenged the order passed by the respondents by alleging malafide against the officer who had passed the impugned order of vesting. The writ petitioners were unaware as to which officer had passed the impugned order of vesting. Therefore, it was not possible for them to implead the proposed respondent No. 8 at the time of filing of the case. Only after the respondents had taken a stand in their supplementary affidavit by indicating therein that the writ petition was bad for non-impleadment of the then Deputy Land and Land Reforms Officer, Barasat, 24-Parganas (N) the petitioners filed the present application, lest, the writ petition may be bad for nonjoinder of necessary parties. It was indicated that the Hon'ble Supreme Court while disposing of the special leave petition has, however, held that without going into the merits of the case of the respective parties set aside the impugned judgment and directed the parties to file their affidavits and thereafter this court shall dispose of the case along with the connected appeal. Since the Hon'ble Supreme Court has had no occasion to go into the merits of the connections raised by the parties, therefore, it has been argued by the petitioners that it does not preclude them from filing an application to add necessary parties, so that the matter can completely and effectively be adjudicated. ( 5 ) IT has been contended by the respondents that the order of remand passed by the Hon'ble Supreme Court is not at all an open remand but this court has been permitted to hear and dispose of the case in the manner indicated in the order itself. ( 5 ) IT has been contended by the respondents that the order of remand passed by the Hon'ble Supreme Court is not at all an open remand but this court has been permitted to hear and dispose of the case in the manner indicated in the order itself. Since the Hon'ble Supreme Court has given opportunity to the respective parties only to file affidavits but not to make any application for addition of parties, subsequent prayer for addition, should therefore, be regarded as contrary to Supreme Court direction. By adding the Deputy District Land and Land Reforms Officer would necessarily result in introducing fresh evidence by way of filing affidavit-in-opposition and also by way of affidavit-in-reply. Thereby this court will enlarge the scope of the case, which is otherwise not permissible. It has been further contended that there has been no allegation to prove malafide said to have committed by the proposed newly added respondents, thus, such addition is not only uncalled for, unwarranted but also an illegality. ( 6 ) AN order of remand passed by the Appellate court may sometimes be made without retaining the appeal in its own file. In such occasion the court to which the matter is remanded shall act in accordance with direction of the appeal court. If the appellate court makes an open remand the court to which the matter is remanded shall exercise all powers without limiting its own jurisdiction. But on the other hand if it is a limited remand, then, the court shall dispose of the case keeping in view of the direction of the Appellate Court. Reliance can be placed upon a judgment reported in Vol. 11 Calcutta Weekly Notes page 585 in the case of Kartick Chandra Das v. Satya Nidhi Ghosh, which has been held as follows:"in strict law a remand made by an Appellate Court without retaining the appeal in its own file necessarily reopens the whole case and the court of appeal to which the case was remanded is bound to bear the appeal upon the judgment of the court of first instance and nothing else. It is true that this court in the exercise of its powers of supervision under the Charter has assumed, and we think rightly assumed, in certain cases authority to limit the scope of certain cases, authority to limit the scope of certain appeals remanded to the lower Courts without keeping them on its own file. But whenever this is done it is in our opinion absolutely essential that this court should lay down clearly without any possibility of mistake that it did intend to limit the scope of the appeal to certain specified questions. We are therefore of opinion that the learned subordinate Judge who has now reheard the case was right in holding that the whole appeal was open to him for decision. " (Italics supplied for emphasis) ( 7 ) WHEN the Appellate Court sets a judgment aside and the case is sent back to dispose of the appeal on merit, the matter is in the same position as it was before passing of the judgment and decree by the trial court. The reasoning and the findings of the court before the order of remand did not survive. The court to which the matter has been sent back for hearing can rehear the entire matter, which is before him after remand. The learned advocate appearing for the petitioner placed reliance in a reported judgment AIR 1977 Orissa 194 in the case of Sanatan Mohapatra and Others v. Hakim Mohammad Kazim Mohammad and others where it has been held as follows:"the effect of the remand order is to relegate the suit to a stage where evidence has been collected on a number of issues and a fresh issue is framed and parties are allowed liberty to lead evidence on one aspect of that issue. In other words, the suit is relegated to the stage of trial where trial has commenced but is not concluded. The direction for a fresh disposal obviously mean a direction to dispose of the suit in accordance with law. There is nothing in the remit order nor is that order susceptible to an interpretation of amounting to prohibition to amend the pleadings, even though a case for amendment arose. As already indicated, the power and jurisdiction of the Munsif exercisable under the various provisions of the Code of Civil Procedure had not been whittled down at all. There is nothing in the remit order nor is that order susceptible to an interpretation of amounting to prohibition to amend the pleadings, even though a case for amendment arose. As already indicated, the power and jurisdiction of the Munsif exercisable under the various provisions of the Code of Civil Procedure had not been whittled down at all. Order 6, Rule 17, C. P. C. provides that a court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms, it may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Without any specific direction in the remit order prohibiting amendment sought for by any party to the suit it is open to such parties to seek amendment of their pleading in each such case, it will be for the court to deal with it on merits in accordance with judicial principle. The amendment sought for does not appear to be outside the scope of the remand order and the learned Munsif was wrong in rejecting it on that ground. " ( 8 ) AN interesting question arises in the instant case is whether the Appellate Court can still have power to deal with an application for addition of parties after the final order of remand is passed. After such final order is passed, the court appears to have lost its jurisdiction to deal with an application for addition of parties. The further question arises for addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure Court is generally not one of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of the facts and circumstances of the case, but in some cases it may raise controversies as to the power of the court, in contradiction to its inherent jurisdiction, or in other words of jurisdiction in the limited sense in which it is used in section 115 of the Code. In a case reported in AIR 1958 SC 886 in the case of Rizia Begum v. Sahebzadi Anwar Begum the Supreme Court has held as follows:"in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation. Where the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. The cases comtemplated in the last proposition, have to be determined in accordance with the statutory provisions of sections 42 and 43 of the Specific Relief Act. In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant if the court has reason to insist upon a clear proof apart from the admission. " ( 9 ) IN a case reported in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, in (1992) SCC 524 it is held as follows:"rule 10 (2) gives a wide discretion to the court to meet case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. A necessary party is one without whom no order can be made effectively. The court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the rule direct the addition of a person whose presence is not necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject matter of the existing action the court has power to join the intervener so as to give effect to the primary object of the order, which is to avoid multiplicity of actions. Though the plaintiff-appellant is dominus litis and is not to sue every possible adverse claimant in the same suit and he may choose to implead only those persons as defendants against whom he wishes to proceed, but the court may at any stage of the suit direct addition of parties. Though the plaintiff-appellant is dominus litis and is not to sue every possible adverse claimant in the same suit and he may choose to implead only those persons as defendants against whom he wishes to proceed, but the court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10, which provides that only a necessary or a proper party may be added. In the light of the clear language of the rule, it is not open to the appellant to contend that a person cannot be added as defendant even in a case where his presence is necessary to enable the court to decide the matter effectively. " ( 10 ) STRONG reliance has been placed on the reported judgment in AIR (39) 1952 Calcutta 368 in the case of Mt. Muneswari and other v. Sm. Jugal Mohini Dasi. This court has held as follows:"on appeal, the decision of the trial court was reversed and the plaintiffs, suit dismissed, but as the appellate judgment was, in its turn, set aside by this court it is not necessary to refer to it in detail. The second appeal to this court was heard by Roxburgh J sitting singly, who held that the lower appellate court had not applied its mind not even intelligible. Accordingly, he remanded the case for a re-hearing of the appeal and indicated three points, which would have to be specially considered. Those were (1) whether that there had been merely a severance of the joint status of the family or an actual division of the estate by partition so that the house at Asansol had fallen exclusively to Ram Janam's Branch: (2) whether the purchase by the deft. 's vendor was in any affected by the character of the deft. and (3) whether the plff. 's vendor had power to transfer their undivided shares in the joint coparcenary property so as to be able to pass a valid title to the plffs. " ( 11 ) ON a plain reading of the judgment it appears that the Appellate Court while remanded the matter restricted the power of trial court to consider on three issues only. 's vendor had power to transfer their undivided shares in the joint coparcenary property so as to be able to pass a valid title to the plffs. " ( 11 ) ON a plain reading of the judgment it appears that the Appellate Court while remanded the matter restricted the power of trial court to consider on three issues only. Therefore, the trial court could not have gone beyond the matters of which the Appellate Court issued direction. The respondents have placed reliance in the judgment (Sm. Mira Rani Khamaru and another v. Sm. Durga Bala Das and another) reported in 89 CWN page 444. The Appellate Court issued a direction to dispose of the suit on the evidence on record and in the light of the observation made in the body of the judgment. Therefore, in the remit order, the scope of the trial court was restricted to decide the case only on the available evidence and in no circumstances it was permitted to go beyond the remit order by allowing an amendment of the plaint whereby the scope of the suit would be enlarged. After carefully going through the case reported in CWN 98 Jurjangjora Tea and Industries Ltd. v. Atibari Tea Co. , it has been noticed that the balance sheet was not produced before the court below nor the book-let but only the Xerox copy was produced. Moreover the contents of the balance sheet and also the Xerox copy of the book-let was disputed by the defendant No. 1. Therefore this court rejected the prayer for additional evidence. Mr. Bhunia, the learned advocate appearing for the respondent has strongly relied on the judgment reported in 1971 CWN page 243 in the case of Managing Director, Hindusthan Cables Ltd. v. Jatindra Kr. Das Chowdhury. But on a careful study of the judgment it appears that the prayer for addition of parties was not made at an initial stage notwithstanding the objection raised by the adversary. Such prayer was made at a belated stage. Therefore, the court rejected the prayer for addition of parties. Das Chowdhury. But on a careful study of the judgment it appears that the prayer for addition of parties was not made at an initial stage notwithstanding the objection raised by the adversary. Such prayer was made at a belated stage. Therefore, the court rejected the prayer for addition of parties. It can never be disputed that when the decision of the High Court had been set aside by the Supreme Court, it becomes the Law of the Land and it becomes the duty of everybody including the High Court to follow the order and not to try to avoid it, nor is it open to the High Court to find fault with the same. ( 12 ) IN the above backdrop of the case let us now analyse the scope and ambit of the remand order passed by the Supreme Court. On a careful reading of the order it has transpired that the Hon'ble Supreme Court did not feel it necessary to go into the merits of the case of the respective parties. It has set aside the judgment of this court and with the consent of the parties remanded the matter to this court by empowering it to withdraw the writ petition before itself and after giving reasonable opportunities to the parties to file their affidavits dispose of the same along with the connected appeal. Therefore, the Hon'ble Supreme Court permitted both the parties to file fresh evidence by way of affidavits. Thus, it has not restricted the scope and ambit of the case nor imposed any embargo upon the jurisdiction of this court. In the supplementary affidavit, the opposite parties have taken specific stand that the writ petition was not maintainable in the absence of the then Deputy Land and Land Reforms Officer-Cum-A. S. O. To obviate such technical hurdles, the writ petitioner filed this application for impleading the respondents Nos. 8 and 9. The writ petitioners have neither filed any application for amendment of the body of the writ petition nor have they taken any new-stand. With the same averments they simply want to implead the respondent Nos. 8 and 9 to overcome the objection of the respondents for non-impleadment. The proposed respondent Nos. 8 and 9 are necessary parties who should be added for complete and effectual adjudication of the case. ( 13 ) MR. With the same averments they simply want to implead the respondent Nos. 8 and 9 to overcome the objection of the respondents for non-impleadment. The proposed respondent Nos. 8 and 9 are necessary parties who should be added for complete and effectual adjudication of the case. ( 13 ) MR. Bhunia, the learned counsel appearing for the respondents, has, however, advanced serious contentions that the petitioner should not be permitted to amend the prayer by impleading the respondent Nos. 8 and 9 at such belated stage. Supplementary affidavit was filed within a month previous to the date of hearing. Therefore, it cannot be said that the petitioner has sought to implead them at an extreme belated stage. But at any rate the question of delay is left open to be decided at the time of hearing of the case. Accordingly, we hereby allow the application for amendment of Cause Title by incorporating the names of the respondent Nos. 8 and 9. Let the copy of the writ petition be served upon the respondent Nos. 8 and 9 within a week through a special messenger, the cost of which shall be deposited by the petitioner in the department forthwith. D. P. Sengupta, J.-I agree. Application allowed.