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2008 DIGILAW 1035 (CAL)

Asgar Ali v. Jamil Akhtar Siddique

2008-12-01

PARTHA SAKHA DATTA, SUBHRO KAMAL MUKHERJEE

body2008
JUDGMENT: MUKHERJEE, J. (1). This is an appeal against order No. 29 dated February 6, 2007 passed by the learned Judge, Seventh Bench, City Civil Court at Calcutta, in Miscellaneous Case No. 163 of 2006. (2). By the order impugned, the learned Trial Judge rejected an application for injunction filed by the petitioner in the said miscellaneous case on contest with costs. (3). The factual background leading to filing of this case are as under : The decree holders instituted Ejectment Suit No. 20 of 1981 in the City Civil Court at Calcutta against their tenants, namely, Md. Herasatulla and Afzaluddin Ahmed, for their eviction on the ground of subletting. (4). In the said suit an application for compromise was filed and the suit was decreed on compromise. The compromise decree was put to execution giving rise to Ejectment Execution Case No. 163 of 1985. However, ejectment execution case was transferred to the Presidency Small Causes Court at Calcutta and the case was re-numbered as Ejectment Execution Case No. 147 of 2000. (5). In the meantime, the appellant, namely, Asgar Ali, filed Title Suit No. 1657 of 1985 in the City Civil Court at Calcutta, inter alia, claiming to be a legal sub-tenant in respect of one shop room in the suit premises. It was alleged in the plaint that the compromise decree obtained in Title Suit No. 20 of 1981 being collusive was bad and not binding on the said Asgar Ali and the said Asgar Ali was a tenant in respect of the said shop room under the decree holders. (6). By order No. 20 dated July 19, 1986 the learned Judge, Third Bench, City Civil Court at Calcutta, allowed the said application for injunction and restrained the decree holders from proceeding with the Ejectment Execution Case No. 163 of 1985. (7). The decree holders preferred an appeal before this Court, which was registered as First Miscellaneous Appeal No. 697 of 1986. By the judgment and order dated December 11,1986 a division bench of this Court dismissed the appeal and affirmed the order allowing the application for temporary injunction. (8). A group of alleged sub-tenants applied for their addition in the said Title Suit No. 1657 of 1985 as defendants. The said application for addition of parties was rejected by the learned Trial Judge by order dated June 13, 1991. (8). A group of alleged sub-tenants applied for their addition in the said Title Suit No. 1657 of 1985 as defendants. The said application for addition of parties was rejected by the learned Trial Judge by order dated June 13, 1991. The applicants challenged the said order by moving an application under Section 115 of the Code of Civil Procedure before this Court, which gave rise to Civil Order No. 2370 of 1991. (9). Narendra Krishna Mitra, J. (as His Lordship then was) issued notice on the said revisional application and, also, granted stay of all further proceedings in the said Title Suit No. 1657 of 1985 for a limited period. By efflux of time the order of stay was vacated. (10). By order dated September 21, 1993 the learned Judge, Tenth Bench, City Civil Court at Calcutta, dismissed the said Title Suit No. 1657 of 1985 for default. Subsequently, however, the records of the said suit have been destroyed. (11). In view of the dismissal of the Title Suit No. 1657 of 1985, the decree holders proceeded with the execution case and obtained delivery of possession of the suit premises in execution of the decree. (12). Asgar AN on or about November, 21, 2005 filed an application under Order 21, Rules 99 to 104, inter alia, claiming for restoration of possession of the said shop room. The said application has, since, been registered as Miscellaneous Case No. 349 of 2005 before the learned Judge, Fifth Bench, Presidency Small Causes Court at Calcutta. In connection with the said Miscellaneous Case 349 of 2005, the said Asgar Ali moved an application for injunction praying for restoration of possession of the said shop room and to restrain the decree holders from changing the nature and character of the said shop room. (13). The learned Judge in the executing Court, however, by the order dated November 28,2005, declined to pass any ad interim order of injunction in connection with the said application for temporary injunction. (14). The said Asgar Ali preferred an appeal challenging the said order dated November 28, 2005 before the City Civil Court at Calcutta and the appeal has, since, been registered as Miscellaneous Appeal No. 46 of 2005. (15). Admittedly, one of the respondents in the said appeal, namely, Md. Herasatulla was dead on the date of presentation of the appeal. (14). The said Asgar Ali preferred an appeal challenging the said order dated November 28, 2005 before the City Civil Court at Calcutta and the appeal has, since, been registered as Miscellaneous Appeal No. 46 of 2005. (15). Admittedly, one of the respondents in the said appeal, namely, Md. Herasatulla was dead on the date of presentation of the appeal. The application was filed by Asgar Ali in connection with Miscellaneous Appeal No. 46 of 2005 for substitution of heirs and legal representatives of the said Md. Herasatulla after setting aside abatement and upon condonation of delay. The said application was registered as Miscellaneous Case No. 163 of 2006. In connection with the said Miscellaneous Case No. 163 of 2006, the said Asgar Ali applied for injunction. The learned Judge by the order impugned dated February 6, 2007, however, rejected the application for injunction filed in connection with the Miscellaneous Case No. 163 of 2006. (16). Being aggrieved the said Asgar Ali has come up with this appeal. (17). Mr. Bratindra Narayan Roy, learned Advocate, appearing in support of the appeal, argued strenuously that the learned Judge in the executing Court was not right in rejecting the application for temporary injunction when a division bench of this Court affirmed the order of injunction granted in connection with Title Suit No 1657 of 1985. Mr. Roy submits that the decree holders obtained a decree for eviction in collusion and in conspiracy with the recorded tenants although the decree holders were aware of the existence of Asgar Ali in the suit premises. Mr. Roy submits that the execution case was proceeded against a dead person and that no injunction has been prayed for against the dead tenant, namely, Mr. Herasatulla. Mr. Roy submits that the main relief of injunction is directed against the decree holders. (18). In substance the application for restoration of possession is filed by a third party-objector before the executing Court alleging that he was a lawful sub-tenant and, further, alleging that a compromise decree was obtained by the owners in collusion with the recorded tenants. The decree holders and the recorded tenants are necessary parties in the said application. The said application has been registered as Miscellaneous Case No. 349 of 2005. The applicant, the alleged sub-tenant, moved an application for injunction in connection with the said Miscellaneous Case No. 349 of 2005. The decree holders and the recorded tenants are necessary parties in the said application. The said application has been registered as Miscellaneous Case No. 349 of 2005. The applicant, the alleged sub-tenant, moved an application for injunction in connection with the said Miscellaneous Case No. 349 of 2005. The learned Judge in the executing Court declined to pass any ad interim order of injunction. Being aggrieved an appeal has been preferred. Admittedly, in the memorandum of appeal the said Md. Herasatulla has been impleaded as a party respondent. Admittedly, he was dead on the date of presentation of the appeal. In connection with the appeal, an application was filed for substitution after setting aside abatement and for condonation of delay in filing such application consequent upon the death of the said Md. Herasatulla. The said application has been registered as Miscellaneous Case No. 163 of 2006. In the said Miscellaneous Case No. 163 of 2006 an application for injunction was moved. The learned Judge in the lower appellate Court rejected the application for injunction. (19). In Bank of Commerce Limited, Khulna v. Protap Chandra Ghose and others reported in 1946 FCR 32 a dead person was impleaded as respondent in an appeal before the Federal Court of India. There was an application to bring his legal representative on record. The Federal Court of India holds "The present case obviously does not come under the first category, because Amal Krishna was not in the eye of the law a party to the appeal as originally preferred, as he had died before the date of the filing of the appeal. The "addition" of parties referred to in the rule cannot cover the representative of a party in whose favour a decree had been passed by the lower Court, because in such a case the proper course will be to prefer an appeal against him and not merely add him as a party to an appeal that had already been preferred against other parties. That this was the intention of the rule is shown by the fact that the reference in the same rule to S. 5 of the Limitation Act is limited to applications to bring the legal representative of a deceased party on the record. That this was the intention of the rule is shown by the fact that the reference in the same rule to S. 5 of the Limitation Act is limited to applications to bring the legal representative of a deceased party on the record. Rule 7 also shows that the addition spoken of in R. 6 refers to an addition necessitated by a party already on the record "undergoing a change of status." Where an appeal has to be preferred for the first time against the heir of a person in whose favour the lower Court had passed a decree, the mere fact that an appeal had already been preferred as against other persons will not justify the application being treated merely as one to add a party. Even if it be so in form, it is in substance an appeal preferred against him for the first time, and it is only on that footing that the question of the application of S. 5 of the Limitation Act to such cases will arise. (20). A division bench of this Court in the case of Santi Prasanna Mukherji v. Harendra Nath Ballabh reported in ILR (1948)1 Cal 25 observed that in view of the aforementioned decision of the Federal Court the division bench of this Court could not allow the cause title of the memorandum of appeal to be amended by entering the name of the legal representatives of the dead man on the record under Section 153 of the Code of Civil Procedure. According to the division bench where a respondent had died before the presentation of the memorandum of appeal the case was not one of mere addition of parties, but was in substance a case where an appeal was being filed against the legal representatives of the dead party on the day on which the application for adding him as party respondent to the appeal was filed. The case has to be treated on the footing of Section 5 of the Indian Limitation Act. (21). Another division bench of this Court in the case of Sachindra Chandra Chakravarti v. Jnanendra Narayan Singh Roy and another reported in AIR 1963 Cal 417 observed as under : "With respect, it appears to me that there is good logic and sound reasoning behind the decision in the Calcutta case. (21). Another division bench of this Court in the case of Sachindra Chandra Chakravarti v. Jnanendra Narayan Singh Roy and another reported in AIR 1963 Cal 417 observed as under : "With respect, it appears to me that there is good logic and sound reasoning behind the decision in the Calcutta case. Section 153 cannot be invoked by a party who is guilty of laches to cover up his default. The powers thereunder can be exercised by the Court in a case where the defect or error which would vitiate the proceeding is not due to a partys default. A negligent party cannot ask the Court to overlook his laches and rectify the defect." (22). All the aforementioned decisions were considered by another division bench of this Court in the case of State of West Bengal v. Manisha Maity and others reported in 68 Cal WN 189. The division bench holds that in order to prefer an appeal against a decree obtained by a person, who was dead at the time of the filing of the appeal, it would be necessary to make his heirs or legal re-presentatives respondents to the appeal. The factum of the death of the decree holder and the names of his heirs or legal representatives only be incorporated, for greater safety, in an affidavit accompanying the memorandum of appeal, and an order may be sought from the appeal Court to proceed with the appeal against the heirs of the person, who had obtained the decree. The remedy of an appellant, who has unknowingly filed an appeal against a dead person, is to file an application for presentation of the appeal against the heirs or legal representatives of the dead person afresh. If the time for filling the appeal was in the meantime over, he is to present an application under Section 5 of the Limitation Act, therein explaining the delay in presenting the appeal afresh against the heirs or legal representatives of the dead person. If the succeeds in making out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as a freshly presented appeal against the heirs and legal representatives. (23). If the succeeds in making out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as a freshly presented appeal against the heirs and legal representatives. (23). In this case the appeal is filed against an order declining to grant an ad interim order of injunction in connection with an appeal. Undisputedly, the appeal was presented against a dead person. When it was pointed out to the appellant that one of the respondents in the appeal was dead before presentation of the memorandum of appeal, the appellant filed an application for substitution after setting aside abatement and for condonation of delay in filing such application. (24). Md. Herasatulla was not, in the eye of law, a party to the appeal, as originally preferred, as he had died before the date of the presentation of the memorandum of appeal. This is not a case of either addition or substitution. In such a case the proper course will be to prefer an appeal against the heirs and legal representatives of the deceased respondent and not merely adding them as parties to the appeal that had already been preferred against other respondent. (25). The application for injunction was filed in the aid of the application for substitution after setting aside abatement filed under Order 22, Rule 9 of the Code of Civil Procedure. As we are of the opinion that, in the facts and circumstances of the case, the application for substitution after setting aside abatement is not maintainable, there was no scope to grant injunction in the aid of such application. We are of the opinion, therefore, the learned Judge in the executing Court was justified in declining to grant an order of injunction in this case. (26). We, therefore, dismiss this appeal and affirm the order passed by the Court below. (27). However, this order of dismissal of the appeal shall not prevent the appellant to file appropriate application before the executing Court and in the lower appellate Court in accordance with law. (28). We direct the parties to bear their respective costs in this appeal.