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2008 DIGILAW 339 (CAL)

Bimalendu Ghose v. Mukti Ghose

2008-03-28

PRABUDDHA SANKAR BANERJEE

body2008
Judgment :- (1.) THIS review application is at the instance of the petitioner who was also the petitioner in connection with C.O. No. 1478 of 2001. (2.) BY filing the instant review application, the petitioner prayed for reviewing the order dated 26th March, 2007 passed in connection with the above mentioned C.O. (3.) THE fact leading to filing of the Instant review application may be summed up thus : i) That the present petitioner filed one matrimonial suit against his wife who is opposite party in the instant application being matrimonial suit No. 27 of 1977 before the Learned District judge, Medinipur for decree of divorce. The present opposite party contested the said case by filing written statement wherein she denied all the allegations made in the said plaint (petition). ii) By order dated 29th February 1980, the Learned Trial Judge dismissed the said matrimonial suit (matrimonial suit No. 27 of 1977). iii) Against that order, the present petitioner filed appeal being F. A no. 148 of 1982 before this Honble Court. The said appeal was dismissed on 24th April 1985. iv) Thereafter the present petitioner filed one suit for restitution of conjugal right before the Learned District Judge, Medinipur which was numbered as matrimonial Suit No. 48 of 1986. The present opposite party contested the said suit. By judgment and decree dated 21st May 1987, the said suit was dismissed against the order of dismissal, the present petitioner preferred one appeal being F. A. No. 92 of 1991. By order dated 17th November 1993, the Division Bench disposed of the said appeal on consent granting decree for restitution of conjugal right. In spite of said order there was no resumption of cohabitation in between the present petitioner and the opposite party for more than one year from the date of judgment i. e. 17th November 1993. vi) Thereafter the present petitioner on the basis of incorrect advice filed another suit for restitution of conjugal right being matrimonial suit No. 50 of 1995. The present petitioner did not proceed with the said suit, as already there was decree for restitution of conjugal right. vii) After the stipulated period of one year was over and as there was no resumption of co-habitation in between the parties, the petitioner filed one matrimonial suit being matrimonial suit no. 607 of 1996 before the Learned District Judge, Medinipur for decree of divorce. vii) After the stipulated period of one year was over and as there was no resumption of co-habitation in between the parties, the petitioner filed one matrimonial suit being matrimonial suit no. 607 of 1996 before the Learned District Judge, Medinipur for decree of divorce. It is the case of the petitioner that cause of action of the suit arose after expiry of the period of one year from the date of judgment and decree dated 17th November 1993 passed in connection with F.A No. 92 of 1991. It is the case of the present petitioner that the cause of action was totally different from the cause of action of earlier suits. The present opposite party filed one application with prayer for framing of issue regarding maintainability of the suit on the ground of res judicata. By order No. 51 dated 9th April 2001, the Learned additional District Judge disposed of the matrimonial suit being matrimonial suit No. 607 of 1996 on the ground that it is barred by res judicata and is not maintainable. However, no further order was passed. viii) Against that order the present petitioner preferred one revision being C.O. No. 1478 of 2001. The said C.O. was disposed of on march 26, 2007 and the Court came to the conclusion that the revision was not maintainable, as the order in question was appealable. ix) The present petitioner took the specific plea that there was no final order and as such it cannot be said that final order was passed by the Court below. It is to be mentioned here that the opposite party did not use any affidavit-in-opposition against the review application. (4.) MR. Das, learned Counsel for the petitioner in this review application took the following points in course of his argument in support of his application for review. a) That the Court did not consider that the suit was not finally disposed of and as such the order in question can never be treated as a final order. b) That as the suit was not finally disposed of by the order in question, revision lies against the said order. a) That the Court did not consider that the suit was not finally disposed of and as such the order in question can never be treated as a final order. b) That as the suit was not finally disposed of by the order in question, revision lies against the said order. c) Even assuming the fact that the order is appealable, the plea taken by the Learned counsel for the petitioner in the revisional application that he will file execution case is not tenable in the eye of law as there cannot be any waiver against the express provision of law. (5.) MR. Sabyasachi Bhattacharya, learned Counsel for the opposite party in this review application i. e the wife contended that the order in question against which revision was preferred was a final order and as such appeal lies against the said order. It was the further contention of Mr. Bhattacharya that though the Court did not say specifically that the suit is "dismissed", this Court should presume that the moment the Learned Additional District Judge opined that the suit is barred by principle of res judicata and is not maintainable it shall be held that the suit is disposed. It was the further contention of Mr Bhattacharya that as the order impugned tantamounts to dismissal of the Suit, no revision lies against the order as only appeal lies against the order impugned. However, Mr. Bhattacharya concedes that there cannot be any waiver against the provision of law. (6.) IT is to be mentioned here that Mr Bhattacharya challenged the instant application on the ground that the same is not maintainable. It was his contention that an order passed by a competent Court should not be reviewed unless and until it is found that there was "mistake apparent on the face of the record". Mr. Bhattacharya challenged the instant application on the ground that this Court in its order in connection with the above mentioned C. O gave reasons and came to a clear conclusion that no revision lies against the order impugned as the same is appealable. (7.) LET me now consider the pleas as raised by Mr. Das in course of his argument. (8.) MR. (7.) LET me now consider the pleas as raised by Mr. Das in course of his argument. (8.) MR. Das in course of his argument mainly confined his argument on the ground that the Court below wrongly came to the conclusion that the suit brought by his client for divorce on the ground of desertion was hit by principle of res judicata. It was his contention that in the earliest suit the cause of action was different whereas in the last matrimonial suit the cause of action was also totally different. (9.) IT was his contention that the Court ignoring the said fact came to the clear conclusion that the last matrimonial suit whose number has been mentioned earlier is hit by the principle of res judicata. (10) MR. Das further contended that as by the order impugned, the learned Additional District Judge did not dismiss the suit, it is to be presumed that the suit is still pending and question of drawing up decree does not arise. In support of his contention he contended that the information slip which were shown to the Court clearly provides that the decree has not been drawn up. (11.) BEING armed with the said fact Mr Das contended that the order impugned is not appealable as the same is interlocutory order and remedy lies by filing civil revision and in fact the same was filed. (12.) THE said pleas were opposed by Mr Bhattacharya, learned Counsel for the opposite party who drew attention of the Court to section 28 of the Hindu Marriage Act, 1955 which runs as follows" : "28. Appeals from decrees and orders.- (1) All decrees made by the court in any proceeding under this Ad shall, subject at the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of subsection (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. (3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of decree or order." (13.) ON the basis of the same it was contended by Mr, Bhattacharya that upholding the plea of the opposite party the Court below clearly came to the conclusion that the principle of res judicata is applicable and accordingly, the suit is not maintainable. (14.) MR. Bhattacharya on the basis of the same contended that though the word "dismissed" has not been mentioned in the order impugned, this Court must presume that there was apparent order of dismissal of the suit as the Court accepted the plea of the opposite party that the suit is barred by principle of res judicata and is not maintainable. (15.) IN this connection Mr Bhattacharya relied upon the case in between Lily Thomas, etc v. Union of India and Ors. reported in AIR 2000 sc 1650 . (16.) MR. Bhattacharya relied upon the paragraph 57 of the said reported case which runs as follows :- "otherwise also no ground as envisaged under order 40 of the supreme Court Rules read with order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla mudgals case (1995 AIR SCW 2326: AIR 1995 SC 1531 : 1995 Cri LJ 2926). It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due, diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgals case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the fact of the record and not an error which is to be fished out and searched. It must be an error of inadvertence." (17.) ON the basis of the same Mr. Error contemplated under the rule must be such which is apparent on the fact of the record and not an error which is to be fished out and searched. It must be an error of inadvertence." (17.) ON the basis of the same Mr. Bhattacharya contended that this court earlier considered all the pleas as raised by learned Counsel for the petitioner and thereafter came to the conclusion that the order impugned is appealable. Mr. Bhattacharya further contended that the present petitioner failed to make out any case that there was apparent error on the face of the record. He contended further that it is not the duty of the Court at this stage to fish out and search. He further contended that unless the error is an error of inadvertence, the Court should not invoke its power to review the order. (18.) NOW the question arises whether by the order impugned this Court shall presume that there was order for dismissal of the suit. (19.) IT is clear from the order impugned that the plea of res judicata as taken by the wife was allowed by the Court and the Court came to the conclusion that the suit is not maintainable. I give emphasis upon the words "that the suit is not maintainable". (20.) IT is the common presumption that if a suit is found to be not maintainable the same would be dismissed. By sheer ignorance or inadvertence, the Additional District Judge, Tamluk did not pass the order that the suit is dismissed. The implication of the order is to be considered on the basis of the finding of the Learned Additional District judge. It is clear from his finding that he was of the opinion that the principle of res judicata is applicable and as such the suit was not maintainable. (21.) ON the basis of the same, this Court is of clear opinion that the suit was dismissed. (22.) IN this case two different judgments of two Honble single Judges of this Court were referred. The said cases were in between Smt. Sankari maity and Ors. v. Birendra Nath Maity reported in CAL L T 1998 (1) HC 174 and Bimala Saha v. Bijon Kumar Saha reported in 2001 (2) CHN 691 . In both those cases Their Lordships discussed about the definition of "decree". The said cases were in between Smt. Sankari maity and Ors. v. Birendra Nath Maity reported in CAL L T 1998 (1) HC 174 and Bimala Saha v. Bijon Kumar Saha reported in 2001 (2) CHN 691 . In both those cases Their Lordships discussed about the definition of "decree". (23.) THE entire matter was placed before the Division Bench of Honble mr. Justice Ashok Kumar Ganguly and Honble Mr Justice Tapan Kumar dutt in connection with SAT No. 1596 of 2004. The Division Bench after details discussion did not accept the findings of the Honble Mr. Justice panigrahi 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 Lordships 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 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 Mookherjee, J. in the case of Sideswar Biswas and anr. (supra), Mookherjee, 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. 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 suti 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. 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 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 v. State of hyderabad, 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. (supra) is correct or not as the same is beyond the scope of investigation in this revisional application. (24.) THE aforesaid Division Bench came to the conclusion that "in our opinion, if any issue, whether it relates to jurisdiction or res judicata or limitation or maintainability of the suit is answered in favour of the defendant then in that event the suit itself has to be dismissed and nothing remains in the suit to be decided and such decision should be held to be a decree. " I give emphasis upon the following words "the suit itself has to be dismissed and nothing remains in that suit to be decided and such decision should be held to be a decree." (25.) IN view of the said findings of the aforesaid Division Bench which duly discussed the two different opinions of the Honble single Judges of this Court, I am of clear opinion that the order impugned passed by the Learned Additional District Judge is appealable and accordingly, I do not find any reason to review the order passed by this Court earlier subject to the modification that option is with the present petition either to file the execution case or to prefer an appeal. (26.) ACCORDINGLY, the instant review application is dismissed on contest. However, there will be no order as to costs. Application dismissed.