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2002 DIGILAW 590 (CAL)

Dhirendra Nath Sarkar v. Saralabala Naskar

2002-09-04

ARUN KUMAR MITRA

body2002
Judgment This appeal has come up in the list for "dismissal of the appeal for non-prosecution". On behalf of the appellant No. 2, a letter has been submitted today before the Court written by Tarapada Sarkar (Sardar) addressed to Shri Amiya Kumar Chakraborty which bears no date. In the said letter, the alleged signatory Tarapada Sarkar (Sardar) has made his communication to Mr. Amiya Kumar Chakraborty learned Advocate which is as follows:- "I am not willing to proceed with the above second appeal. You are therefore requested to withdraw the same." 2. On placing this letter, the learned Advocate Mr. Amiya Kumar Chakraborty appearing for the appellant No. 2 submits that appeal should be dismissed for non-prosecution. According to Mr. Chakraborty initially there were two appellants; (1) Nripendra Nath Sarkar (Sardar) and (2) Tarapada Sarkar (Sardar) and there were two respondents (1) Gobordhan Naskar and (2) Dhirendra Nath Naskar. According to Mr. Chakraborty, the appellant No. 1 has died long back and he is appearing for the appellant No. 2. The heirs of the appellant No. 1 has not been substituted and only the appellant No. 2 is continuing. Now he does not want to proceed with the case and consequently the appeal should be dismissed for default or dismissed for non-prosecution. The learned Advocate Mr. Chakraborty refers to the provisions of Order 41 Rule 17(1) of the Code of Civil Procedure and the said provision is quoted herein:- 17(1)-Dismissal of appeal for appellant's default: "Where on the death fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed." 3. The learned Advocate Mr. Ghosh appearing for the respondent No. 2 Dhirendra Nath Naskar seriously opposes such prayer of Mr. Chakraborty regarding the dismissal of this appeal. Mr. Ghosh relies on the provisions of Order 23 Rule 1(1) of the C.P.C. and submits that this does not give an absolute right to the plaintiff to withdraw the suit at any rate at this second appeal. Mr. Ghosh in this regard relies on a decision reported in AIR 1962 Allahabad 263, Kedar Nath & Ors. v. Chandra Kiran & Ors. Mr. Mr. Ghosh in this regard relies on a decision reported in AIR 1962 Allahabad 263, Kedar Nath & Ors. v. Chandra Kiran & Ors. Mr. Ghosh for the purpose of consequence of such a prayer as made by the learned Advocate for the appellant relied on a decision reported in AIR 2002 Karnataka 76, Smt. Sowramma v. Nanjappa & Ors. Mr. Ghosh submits in this case the steps to be taken or procedure to be adopted by the Courts has been mentioned in Paragraph 16 of the Judgment delivered by Hon'ble Karnataka High Court. Heard the submissions made by the learned Advocate for the parties and perused the records. 4. This is in connection with a suit for partition. Two persons being the plaintiffs, one Gobordhan Naskar and Other Dhirendra Nath Naskar filed the said suit for partition and in the said suit originally there were two defendants Nripendra Nath Sarkar (Sardar) and Tarapada Sarkar (Sardar). It appears from records that by an Order dated 17.12.87 the application for substitution of the heirs of the deceased respondent No. 1 was allowed by this Court. It further appears that by another order dated 8.11.90 the heirs of appellant No. 1 Nripendra Nath Sarkar were substituted allowing the application for setting aside abatement. But though the heirs of the appellant No. 1 Nripendra Nath Sarkar was substituted on behalf of the heirs no vokalatnama engaging any learned Advocate has been filed. It is, therefore, clear that on the death of original appellant No. 1 his heirs have been substituted and on the death of the original respondent No. 1 his heirs has also been substituted. 5. As stated earlier in the suit for partition being Title Suit No. 10/1968 by judgment and decree dated 31.1.69 the learned Sub-Ordinate Judge Third Court at Howrah decreed the suit in preliminary form. The defendants being aggrieved with the said decision had preferred an appeal being Title Appeal No.102/1969 against the said preliminary decree. Plaintiffs filed cross-objection. The learned Additional District Judge, First Court at Howrah dismissed both the appeals and cross-objection. Being aggrieved by the said judgment and decree passed by the learned Additional District Judge the defendant preferred the instant appeal. 6. Plaintiffs filed cross-objection. The learned Additional District Judge, First Court at Howrah dismissed both the appeals and cross-objection. Being aggrieved by the said judgment and decree passed by the learned Additional District Judge the defendant preferred the instant appeal. 6. As stated earlier on the death of Nripendra Nath Sarkar the appellant No.1, his heirs have been substituted as appellant No. 1A to K and on the death of the original respondent No.1 Shri Gobordhan Naskar his heirs have been substituted on 17.12.87. Subsequently, the plaintiffs/respondents herein filed an application for injunction when they found that the appellants are trying to transfer the suit plots. On the said application Hon'ble Justice Bhaskar Bhattacharya on 17.3.99 passed an order of injunction restraining the appellants from transferring and/or encumbering certain portion of suit plots which were sought to be transferred. There was typographical mistake in the order dated 17.3.99 and His Lordship passed an order rectifying the typographic mistake on 22.12.99. For alleged violation of the said order a contempt application was filed and the plaintiffs being the petitioners filed an application for addition of parties for adding the transferees of land a parties. This Court by an order dated March 5, 2002 passed an order adding the respondent Nos.1 to 5 and 1A to 1K as parties and directed the cause title to be amended accordingly. On the said date no one appeared for the appellant No. 2. By order dated 30th July, 2002 this Court directed the matter to come up for hearing on 6.8.02. Thereafter on 23.8.02 the appellant No.2 has filed this letter and prayed for dismissal of the suit for non-prosecution. 7. Order 23 Rule 1(1) does not give an absolute right to the plaintiff to withdraw the suit at any rate at the stage of second appeal and in this regard Allahabad High Court in the case of Kedar Nath (supra) observed in the manner as follows:- "Having considered the matter, I am of opinion that Order 23, Rule 1 sub-rule (1) does not give an absolute right to the plaintiffs appellants to withdraw the suit at this stage. The matter lies within the discretion of the Court. The case has now reached the stage of second appeal, and unless the plaintiffs are able to make out some good ground for giving them permission to withdraw, the said permission should not be accorded. The matter lies within the discretion of the Court. The case has now reached the stage of second appeal, and unless the plaintiffs are able to make out some good ground for giving them permission to withdraw, the said permission should not be accorded. No such ground is given by the plaintiffs in their application. In fact the ground put forward on their behalf before me is that the findings given by the lower Court against the plaintiffs-appellants in the present case may operate as res judicata in a second suit filed by them. I am of opinion that this is the very ground for not granting them the permission asked for. I, accordingly dismiss this application." 8. In a suit for partition also at second appellate stage if the plaintiff wants to withdraw the suit the Court may transpose them in the category of the defendants and the defendants in the category of plaintiffs if they want to continue with the proceeding. Karnataka High Court in such a situation in the case of Gowramma (supra) observed in the manner as follows:- "The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarized thus: (i) when a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties not only all defendants, but co-plaintiff if any and hear the parties, (ii) if all parties are agreeable for the dismissal or withdrawal, the Court may grant the request, (iii) if any defendant ha3 already sought partition and separate possession by paying Court fee and opposes the dismissal withdrawal, it shall permit such defendant to transpose himself herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not, (iv) even if no defendant has sought the relief of partition and separate possession, till then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court." 9. Refusal to grant such permission should be for valid reasons to be assigned by the Court." 9. I am also of the same view inasmuch as in this second appeal the present respondents have acquired some right and at this stage the appellant cannot be permitted to go back or to withdraw from the proceeding. 10. In that view of the matter, I direct that the respondents herein be transposed in the category of plaintiff and the substituted heirs appellant No. 1 and appellant No. 2 be transposed in the category of respondent. Let the department effect transposition as directed above amend the cause title accordingly. Urgent xerox certified copy if applied for will be given expeditiously.