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2003 DIGILAW 728 (SC)

PRATIMA SINHAS v. SHASHI KUMAR NARAIN SINHAS

2003-05-09

B.N.SRIKRISHNA, RUMA PAL

body2003
ORDER 1. LEAVE GRANTED. 2. A SUIT HAD BEEN FILED BY THE RESPONDENTS AGAINST THE APPELLANTS, INTER ALIA, FOR A DECLARATION THAT APPELLANTS 1-5 HAD NO RIGHT TO SELL THE LAND AND HOUSE DESCRIBED IN SCHEDULE I OF THE COMPROMISE DECREE AS INDICATED IN RED G IN PLANS 1 AND 2 ATTACHED TO THE COMPROMISE DECREE AND DETAILED IN SCHEDULE II TO THE PLAINT, EITHER TO APPELLANTS 7-9 OR ANY OTHER STRANGER EXCEPT TO THE RESPONDENTS. A DECLARATION WAS ALSO CLAIMED THAT RESPONDENTS 1-5 COULD NOT INTERFERE WITH THE USE OF ANY COMMON PASSAGE AND/OR COULD THE SAME BE SOLD BY RESPONDENTS 1-5 TO ANY STRANGER PURCHASER. THE RESPONDENTS ALSO CLAIMED PROTECTION IN RESPECT OF THE NEWLY CONSTRUCTED PASSAGE BY THE RESPONDENTS AS WELL AS THE RECONVEYANCE OF THE SUIT PREMISES BY RESPONDENTS 7-9. 3. THE PROPERTY INITIALLY BELONGED TO A JOINT FAMILY OF WHICH THE PREDECESSORS-IN-INTEREST OF THE RESPONDENTS AND RESPONDENTS 1-5 WERE CO-SHARERS. THE PREDECESSOR-IN-INTEREST OF THE RESPONDENTS WAS ONE CHANDRA KISHORE AND THE PREDECESSOR OF PETITIONERS 1-5 WAS HARDEO NARAYAN. THE DECREE REFERRED TO IN THE PLAINT WAS A COMPROMISE DECREE ENTERED INTO BETWEEN CHANDRA KISHORE AND HARDEO NARAYAN IN 1980 DIVIDING THE JOINT PROPERTY AMONGST THEMSELVES. 4. A WRITTEN STATEMENT WAS FILED BY THE APPELLANTS BEFORE THE TRIAL COURT. AN OBJECTION WAS RAISED AS TO THE MAINTAINABILITY OF THE SUIT FILED BY THE RESPONDENTS. WITHOUT FRAMING ANY ISSUES UNDER ORDER 14 RULE 1, THE TRIAL COURT DISMISSED THE SUIT ON A PRELIMINARY GROUND. 5. THE RESPONDENTS FILED AN APPLICATION UNDER SECTION 115 OF THE CIVIL PROCEDURE CODE BEFORE THE HIGH COURT. THE HIGH COURT WAS OF THE VIEW THAT C THE ORDER OF THE TRIAL COURT APPEARED TO HAVE BEEN PASSED ENTIRELY WITHOUT JURISDICTION. IT WAS ALSO FOUND THAT THERE WERE SEVERAL ISSUES RAISED, THE FACTUAL BASIS OF WHICH WOULD HAVE TO BE DETERMINED BY THE TRIAL COURT AND WHICH COULD NOT HAVE BEEN SUMMARILY REJECTED. THE HIGH COURT, ACCORDINGLY, SET ASIDE THE DECISION OF THE TRIAL COURT AND REMANDED THE MATTER BACK TO THE TRIAL COURT TO DECIDE THE SUIT IN ACCORDANCE WITH LAW. 6. THE APPELLANTS HAVE IMPUGNED THE DECISION OF THE HIGH COURT BASICALLY ON TWO GROUNDS. IT IS SUBMITTED THAT A REVISION APPLICATION WAS NOT PERMISSIBLE FROM THE ORDER OF THE SUBORDINATE JUDGE. BY HIS ORDER THE SUBORDINATE JUDGE HAD IN FACT DISMISSED THE SUIT. 6. THE APPELLANTS HAVE IMPUGNED THE DECISION OF THE HIGH COURT BASICALLY ON TWO GROUNDS. IT IS SUBMITTED THAT A REVISION APPLICATION WAS NOT PERMISSIBLE FROM THE ORDER OF THE SUBORDINATE JUDGE. BY HIS ORDER THE SUBORDINATE JUDGE HAD IN FACT DISMISSED THE SUIT. IT IS ALSO CONTENDED THAT AN APPEAL UNDER SECTION 21 OF THE BENGAL, AGRA AND ASSAM CIVIL COURTS ACT, 1887, WOULD LIE ONLY TO THE DISTRICT JUDGE. 7. IT HAS NOT BEEN DISPUTED BEFORE US BY THE LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS THAT IN THE CIRCUMSTANCES OF THE CASE THE APPEAL WOULD LIE ONLY TO THE DISTRICT JUDGE FROM THE ORDER OF THE SUBORDINATE JUDGE. HOWEVER, IT IS SUBMITTED BY THE LEARNED COUNSEL THAT THIS COURT SHOULD IN EXERCISE OF ITS POWERS UNDER ARTICLE 136 OF THE CONSTITUTION RENDER SUBSTANTIAL F JUSTICE BY UPHOLDING THE ORDER OF THE HIGH COURT. 8. LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANTS HAS SUBMITTED THAT THE ISSUE RELATING TO THE RIGHT OF THE RESPONDENTS TO CLAIM PRE-EMPTION COULD NOT BE SAID TO HAVE BEEN WRONGLY DECIDED AND SEVERAL DECISIONS WERE SOUGHT TO BE RELIED UPON IN THIS CONTEXT. 9. HOWEVER, WE DO NOT INTEND TO DECIDE THE MATTER ON MERITS AT ALL. WE ARE OF THE VIEW THAT THE SUBORDINATE JUDGE SHOULD HAVE FRAMED THE ISSUES ARISING OUT OF THE PLEADINGS IN ACCORDANCE WITH THE PROCEDURE OF ORDER 14 RULE 1 OF THE CIVIL PROCEDURE CODE. AFTER FRAMING ALL THE ISSUES, IF THE TRIAL JUDGE IS OF THE VIEW THAT ANY OF THE ISSUES RAISED WOULD DISPOSE OF THE SUIT EITHER WHOLLY OR IN PART THEN THE JUDGE CAN ON THE BASIS OF THE PROVISIONS OF ORDER 14 RULE 2 DECIDE SUCH ISSUE. THE SUBORDINATE JUDGE NOT HAVING FOLLOWED THIS PROCEDURE, WE DO NOT THINK THAT IT WOULD BE APPROPRIATE TO UPHOLD THE DECISION OF THE SUBORDINATE JUDGE. 10. THEREFORE WE DISPOSE OF THIS APPEAL BY SETTING ASIDE THE DECISION OF THE HIGH COURT ON THE GROUND THAT THE REVISIONAL APPLICATION WAS INCOMPETENT. AT THE SAME TIME WE SET ASIDE THE ORDER OF THE SUBORDINATE JUDGE AND REMAND THE MATTER BACK TO THE TRIAL COURT FOR REDECIDING THE SUIT STRICTLY IN COMPLIANCE WITH THE OBSERVATIONS IN THIS JUDGMENT. NO COSTS.