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2001 DIGILAW 309 (CAL)

Bimala Saha v. Bijoy Kumar Saha

2001-05-24

Bhaskar Bhattacharya

body2001
JUDGMENT Bhaskar Bhattacharya, J. This revisional application is at the instance of plaintiffs in a suit for partition and is directed against Order No.46 dated January 15, 1993 passed by the learned Assistant District Judge, 1st Court, Midnapore in Title Suit No. 132 of 1989 thereby holding that the suit was not maintainable so far the properties described in Lot No.1 of the plaint schedule are concerned. There is no dispute that on the consent of the parties the following issue framed by the court was heard as preliminary issue:- "Is the suit maintainable in view of section 4 of the Benami Transaction (Prohibition) Act, 1988 in respect of properties alleged to have been purchased in benami?" By the order impugned herein, the learned trial Judge has answered the issue in negative so far as the properties described in Lot No.1 are concerned and in affirm1,ltive in respect of remaining Lot Nos. 2 to 7. Being dissatisfied, the plaintiffs have come up with the instant revisional application under section 115 of the Code of Civil Procedure. 2. After hearing Mr. Roychowdhury, the learned counsel appearing on behalf of the petitioners and Mr. Mukherjee appearing on behalf of the opposite parties and after going through the materials on record I am of the firm view that the order holding that the suit is not maintainable in respect of Lot No. 1 properties described in the Schedule of the plaint amounts to decree within the meaning of section 2(2) of the Code of Civil Procedure as it conclusively determines the right of the parties in respect of those properties and the suit is also disposed of so far those properties are concerned. The fact that the entire suit has not been disposed of by the said order is inconsequential inasmuch as in order to constitute a decree it is not necessary that all the matters in controversy should be disposed of; disposal of the suit in respect of any of the matters in controversy is sufficient to bring the order within the definition of decree if such determination conclusively determines the right of the parities in respect of such matter. In the instant case, the order should be treated to be a preliminary decree in respect of Lot No. 1. Similarly, the fact that no formal decree has been drawn up will not make it any the less a decree. 3. Mr. In the instant case, the order should be treated to be a preliminary decree in respect of Lot No. 1. Similarly, the fact that no formal decree has been drawn up will not make it any the less a decree. 3. Mr. Roychowdhury in this connection has however placed reliance upon a decision of Panigrahi, J in the case of Sankari Maity and Ors. vs. Birendra Nath Maity, reported in 1998(1) CWN page 378 and has contended that a revisional application is maintainable against this type of an order. 4. The aforesaid matter came up before His Lordship under the following circumstances: A suit for partition filed in the year 1971 was decreed in preliminary form declaring share of the parties. The defendant preferred an appeal but the same was dismissed. No further appeal having been taken against the decree of the learned 1st Appellate Court, the plaintiff prayed for final decree in terms of the share declared in the preliminary decree. At that stage, ..... the defendant came up with an application under section 4 of the Benami Transaction (Prohibition) Act praying for dismissal of the suit on the allegation that the claim of the plaintiff being based on the plea of benami, the suit was barred. The court allowed such prayer and dismissed the suit. Being dissatisfied, the plaintiff, instead of preferring appeal filed an application under section 115 of the Code of Civil Procedure. The objection as to the maintainability of a revisional application against the order dismissing the suit was turned down by his Lordship by relying upon an observation of Chittatosh MookeIjee, J (as His Lordship then was) in the case of Sides war Biswas and Anr. vs. State of West Bengal and Ors., reported in 1976 (1) CLJ page 470, taking a view that the decisions on the questions of limitation, jurisdiction res judicata and maintainability of suit which determine only the plaintiffs' right to sue should not be treated to be decree. In this connection paragraph 21 of the judgment of Panigrahi, J is quoted below:- "Since by virtue of the impugned order on (sic.) decree was drawn up and it was only in the nature of an interlocutory order, on matters of procedure, such order could be amenable to the revisional jurisdiction of the court. In this connection paragraph 21 of the judgment of Panigrahi, J is quoted below:- "Since by virtue of the impugned order on (sic.) decree was drawn up and it was only in the nature of an interlocutory order, on matters of procedure, such order could be amenable to the revisional jurisdiction of the court. The jurisdiction res judicata and maintainability of the suit which determined only the plaintiffs right to the suit and hence there is no substance in the preliminary objection". 5. From the rationale of the above judgment there leaves no room for doubt that in the instant case no decree has been drawn up, the petitioner could not have challenged by filing an appeal, dismissal of his suit on an application filed under section 4 of the Benami Transaction (Prohibition") Act is a matter of procedure which could be challenged by filing a revision. In this connection another decision has also been relied upon reported in AIR 1939 Madras at page 847 in the case of Duuvada Nandessan Chowdari vs. Duuuada Balkrishnamma where it has been held: “In order that a matter should be a decree it is not enough that there is a determination, or even a conclusive determination of the rights of parties but that determination must be on matters in controversy in the suit. The expression 'matter in controversy in the suit' means such matters as have been brought up for adjudication by the court by the pleadings in the case so framed as to include them either in the beginning or by amendment made latter with the sanction of the court. It will not do to bring up new matters of matters were to be adjudged on the footing that by an application itself they became matters of controversy in the suit." 6. With great respect to Panigrahi, J. I am unable to follow the aforesaid decision as a precedent for the following reasons:- a) If an order is really a decree within the meaning of section 2(2) of the Code, failure to draw up a formal decree by office will not make it revisable. His Lordship's attention was not drawn to the provision contained in order 20 Rule 6A of the Code enabling a party to prefer appeal in a case before drawing up of a formal decree. His Lordship's attention was not drawn to the provision contained in order 20 Rule 6A of the Code enabling a party to prefer appeal in a case before drawing up of a formal decree. b) In observing that the findings on the question of jurisdiction, res judicata and maintainability of a suit merely determines the plaintiffs right to sue, His Lordship relied upon such observation of Chittatosh Mookerjee, J in the case of Sideswar Biswas and Anr. (supra). Mookerjee, J however in arriving at such findings relied upon the following decisions:- ILR 39 Bom. 339 (FB); AIR 1914 Bom 149; 18 CLJ 78; and AIR 1943 Lah 140 (F.B.). However, in all the aforesaid cases, question was whether a finding in favour of plaintiff relating to the pleas of jurisdiction, limitation, res judicata or maintainability is a decree or not. The courts answered the question in negative. In my opinion, if an issue relating to jurisdiction, res judicata, limitation or maintainability is answered in favour of a defendant, such finding must be held to be a decree as it will result in dismissal of the suit itself. Therefore, those four decisions are applicable only to a case where such issues are answered in favour of a plaintiff because in such a situation the suit is not disposed of but is further required to be heard on merit. If a suit is dismissed on the ground of limitation, res judicata, jurisdiction or on the ground that the same is not maintainable, the aggrieved plaintiff must prefer an appeal. He cannot prefer a revision on the ground that by such dismissal only the right to sue has been held to be barred. It is now settled law that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e. an appeal would lie to the court to which it would lie if its order was with jurisdiction (See paragraph 26 of the decision of Apex Court in the case of Janardhan Reddy vs. State of Hydrabad, reported in AIR 1951 SC 217 ). I however make it clear that I have not gone into the question whether the conclusion arrived at in the case of Sideswar Biswas and Anr. I however make it clear that I have not gone into the question whether the conclusion arrived at in the case of Sideswar Biswas and Anr. (supra) is correct or not as the same is beyond the scope of investigation in this revisional application. c) The decision of Madras High Court in the case of Duvvada Nandessan Chowdari vs. Duvvada Balkrishnamma relied upon by His Lordship is wrongly described as one reported in AIR 1939 Mad 847 . In the entire volume of AIR 1939 Madras no such decision is reported. Thus, in what contexts observations quoted by His Lordship were made remains unknown. 7. I thus hold that the order impugned is a preliminary decree in the suit for partition and is appealable. Since this revisional application was entertained by a Division Bench and is pending for the last eight years, instead of dismissing the same, I convert it into a first appeal. The petitioners are directed to pay balance court fees within a week. The office is directed to do the needful and register it after the petitioners comply with all other formalities. I make it clear that I have not gone into merit. Revisional application converted into first appeal.