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2004 DIGILAW 426 (CAL)

MAHADEB CHANDRA RAY v. DULAL CHANDRA RAY

2004-06-29

ALOK KUMAR BASU

body2004
ALOK KUMAR BASU, J. ( 1 ) DEFENDANT tenant of Ejectment Suit No. 574 of 2000 preferred this second Appeal challenging the judgment and decree dated 29th August, 2002 and 13th September, 2002 respectively passed by the learned Judge, 11th Bench, City Civil Court, Calcutta in Title Appeal No. 20 of 2002 whereunder the original judgment and decree of the Trial Court dated 23rd march, 2001 and 31st March, 2001 passed by the learned Judge, 2nd Bench, small Causes Court, Calcutta was confirmed. ( 2 ) WHILE admitting the present appeal, two substantial questions of law for disposal of the appeal were formulated and they are given hereinbelow :- para 1, "whether the findings of the Court below that the instant ejectment Suit has been filed on separate cause of action was bad in law, illegal and erroneous inasmuch as, the earlier Ejectment Suit and the subsequent Ejectment Suit have been filed for self-same grounds and cause of action, as such, barred under Order 23 Rules 1 and 3 of the Code of Civil Procedure and the Courts below have erred in law by not dismissing the suit holding that it was not maintainable in law because of statutory bar as no leave was granted to file a fresh suit ; para 2. Whetherthe plaintiff, being one of the landlords having filed the Ejectment Suit claiming as absolute owner by virtue of a will, ext. 1 executed by Kanai Lal Ray, his father, probate of the will having not obtained and filed and/or any other ownership documents not filed and proved, as such, the Court of Appeal below have erred in law by not dismissing the suit holding that plaintiff failed to prove his ownership of the suit property as such not entitled to get decree. " ( 3 ) LIBERTY was, however, given to the appellant to urge other grounds, if necessary at the time of hearing of the appeal. It is pertinent to mention that the learned Advocate appearing for the appellant has only placed the two substantial questions of law as indicated above and he has not placed any other grounds in support of the appeal. It is pertinent to mention that the learned Advocate appearing for the appellant has only placed the two substantial questions of law as indicated above and he has not placed any other grounds in support of the appeal. ( 4 ) NOW, regarding the first substantial question of taw, the learned advocate for the appellant submits that the present respondent earlier proceeded with another Ejectment Suit No. being 1042 of 1977 before the city Civil Court at Calcutta and subsequently that suit was withdrawn and the present respondent thereafter filed Ejectment Suit No. 574 of 2000 in the Small Causes Court, Calcutta on the same cause of action without obtaining leave or permission to sue afresh. The learned Advocate contends that in view of Section 12 of the Code of Civil Procedure read with Order 23 rule 1 of the Code of Civil Procedure, the respondent was under legal compulsion to obtain prior permission from the Court before filing a fresh suit on the same cause of action. The learned Advocate contends that admittedly the respondent did not take such permission and accordingly, the present Ejectment Suit was not at all maintainable and on this ground alone both the original decree as well as the decree passed by the Appellate court are liable to be set aside and the suit of the respondent is also liable to be dismissed. The learned Advocate in support of his contention has referred to the decision of the Apex Court in the case of Sarguja Transport service v. S. T. A. Tribunal, Gwafior and Ors. reported in AIR 1987 Supreme court page 88 and also the decision of the Apex Court in the case of M/s. Hulas Rai Baij Nath v. Firm K. B. Bass and Co. reported in AIR 1968 Supreme court page 111. ( 5 ) ON the second substantial question of law, the learned Advocate for the appellant contends that it is an admitted position of law so far Section 213 of the Indian Succession Act, 1925 is concerned that claim based on will cannot be entertained unless the executor furnishes the will and also the probate. ( 5 ) ON the second substantial question of law, the learned Advocate for the appellant contends that it is an admitted position of law so far Section 213 of the Indian Succession Act, 1925 is concerned that claim based on will cannot be entertained unless the executor furnishes the will and also the probate. The learned Advocate contends that the respondent is said to have derived his title over the suit property on the basis of will and he was bound to produce both the will and also the probate thereto in order to establish his right of ownership and also to obtain a decree of eviction on the ground of reasonable requirement. The learned Advocate submits that it will appear from the judgment of the Trial Court that the will was produced, but, there is no mention in the judgment whether the probate was produced by the plaintiff-respondent or not and this point was not even discussed in the judgment of the Appellate Court. ( 6 ) THE learned Advocate contends that in view of the admitted position as reflected both in the judgment of the Trial Court as well as of the Appellate court, the plaintiff-respondent did not produce the probate to the will, naturally under Section 213 of the Indian Succession Act, the plaintiff- respondent was not entitled to get a decree of eviction. ( 7 ) THE learned Advocate in order to substantiate his contention has relied on a decision of the Hon'ble Supreme Court in the case of Hem Nalini v. Isolyne Sarojbashini and Ors. , reported in AIR 1962 Supreme Court page 1471. ( 8 ) THE learned Advocate in view of his above submissions concludes that on both the question of law as raised in this appeal, the appeal is bound to succeed and both the judgments of the Appellate Court as well as of the Trial Court are liable to be set aside resulting dismissal of the ejectment Suit. ( 9 ) THE learned Advocate appearing for the plaintiff-respondent submits that there is no merit in the first contention of the appellant and the point formulated in this regard has no substance merit at all. ( 9 ) THE learned Advocate appearing for the plaintiff-respondent submits that there is no merit in the first contention of the appellant and the point formulated in this regard has no substance merit at all. The learned Advocate contends that from the xerox copy of the order produced by the appellant it would appear that on 8th January, 1990 on the prayer of the plaintiff- respondent the Suit No. 1042 of 1977 was dismissed for non-prosecution without any costs and hence, the submission that the earlier suit was withdrawn is totally unfounded and without any basis. ( 10 ) THE learned Advocate for the respondent contends that there is no dispute over the legal proposition that if a suit is withdrawn without taking leave of filing a fresh suit, no fresh suit can be filed on the same cause of action. The learned Advocate submits that in the instant case there was no case of withdrawal of the suit and hence, the provision contained in Order 23 Rule 1 of the Code of Civil Procedure shall have n. o application and naturally the contention of the appellant should be rejected outright. ( 11 ) ON the second question, the learned Advocate submits that it will appear from the record of the Lower Court that at the time of evidence the present respondent as P. W. 1 produced the will along with the probate and this wilt appear from the examination of respondent No. 1. The learned advocate contends that the said will probate was marked as exhibit No. 1 in the Trial Court and on the basis of the will probate the Trial Court held that the eviction suit was maintainable and the respondent was entitled to have a decree of eviction on the ground of reasonable requirement. ( 12 ) THE learned Advocate contends that the trial Court of course did not mention in its judgment the word 'probate' though he has mentioned will and it was well within the knowledge of the appellant that will along with probate was produced and for this reason alone no point was raised on behalf of the appellant either before the Trial Court or before the Appellate court on this issue and hence, at present this point has got no value. ( 13 ) THE learned Advocate for the respondent, therefore, submits that the Court below rightly passed the decree of eviction and there is no ground to interfere with the said decree as there is no merit in the contention of the appellant. ( 14 ) I have considered submissions of both the learned Advocates for the appellant as also the learned Advocate for the respondent. It is very much clear that if there is really withdrawal of a suit without seeking permission to file a fresh suit on the self-same cause of action, the litigant is debarred from filing a fresh suit on the self-same cause of action in view of Section 12 read with order 23 Rule 1 of the Code of Civil Procedure. ( 15 ) IN the instant case from the xerox copy of the order dated 8th January, 1990 it is very much clear that the earlier suit was dismissed for non-prosecution and hence, the entire submission of the learned Advocate for the appellant on the first question of law appears to be without any basis. ( 16 ) I have examined the Lower Court record and I find that at the time of examination of respondent as P. W. 1, he produced the will probate and it has been clearly mentioned in his examination in chief and that will probate was marked as Exhibit 1. In the exhibit list attached to the documents before the trial Court there is clear indication that Exhibit 1 is a probate and it is needless to say that a probate is always attached with the will otherwise there is no value of the probate. ( 17 ) THE learned Advocate for the appellant submits that the exhibit list prepared by the Lower Court was not in accordance with form, but, in my view that would not change the position of record where from it is abundantly clear that the probate was produced at the stage when respondent was examined as p. W. 1. ( 17 ) THE learned Advocate for the appellant submits that the exhibit list prepared by the Lower Court was not in accordance with form, but, in my view that would not change the position of record where from it is abundantly clear that the probate was produced at the stage when respondent was examined as p. W. 1. ( 18 ) THUS, from the record I have no hesitation to hold that respondent produced the will probate at the beginning of the trial and that will probate was auly marked as an exhibited document although the trial Court inadvertently ommitted to mention probare in His Judgment and this unintentional comission on the part of the trial Court cannot give any benefit in favour of the present appellant. ( 19 ) THUS, in my view there is no scope to accept the contention of the appellant that as there was no probate provision of Section 213 of the Indian succession Act will be an impediment in granting relief in favour of the respondent. ( 20 ) I have already indicated that the learned Advocate for the appellant has not raised any other point in support of the appeal. Naturally, when both the grounds taken by the appellant in support of the appeal are bound to fail, the appeal itself is destined to be dismissed. ( 21 ) ACCORDINGLY, there is no merit in the present appeal and the same is dismissed, however, I would not make any order as to cost considering the fact and circumstances. ( 22 ) RECORDS of both the Court below be sent down as early as possible with copy of this judgment. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary legal formalities.