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2008 DIGILAW 585 (CAL)

Santosh Kumar Jain v. Vijay Kumar Jain

2008-06-12

Biswanath Somadder

body2008
JUDGMENT 1. HEARD the learned advocates appearing on behalf of the parties. 2. THIS is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No. 19 dated 7th, January, 2008 passed by the learned Judge, 10th Bench of City Civil Court at Calcutta in Title Suit No. 1843 of 2006. By the order impugned, the learned Court below while hearing a petition dated 2nd August, 2007 filed by the added defendants under section 151 of the Code of Civil Procedure, proceeded to take up another petition which was filed by the plaintiffs on 9th October, 2007 and on the basis of the said petition of the plaintiffs, passed an order dismissing the suit for non-prosecution. For convenience the order impugned in its entirety is set out hereinbelow: "Both parties file haziras. Today is fixed for hearing the petition dated 2.8.07 under section 151 of the CPC filed by the petitioner/defendants Santosh Kumar Jain and Smt. Radha Rani Jain. Heard both sides learned lawyers in full. During pendency of hearing of the instant petition the plaintiff filed one petition on 9.10.07 stating that the plaintiff is not interested to proceed with the instant suit. But today the same is not fixed for hearing. It is the case of the petitioner/Santosh Kumar Jain and Smt.Radha Rani Jain that the plaintiff had mis-represented the Court and got an interim order. If the plaintiff is not interested to proceed with the instant suit it would be an excise in futility at the cost of the public money and time to pass any order on the petition dated 2nd August, 2007. If the plaintiff committed any error then the petitioner can move against the plaintiff as per law. There is no bar to that effect. The petition dated 19.10.07 which is pending before this Court that can be taken into consideration. Though the plaintiff has not yet turn up, but the learned lawyer for the plaintiff has submitted before the Court that his client is not willing to proceed with the case. Court fees paid are found correct. Hence, it is, Ordered that the instant suit be and the same dismissed for non-prosecution. Though the plaintiff has not yet turn up, but the learned lawyer for the plaintiff has submitted before the Court that his client is not willing to proceed with the case. Court fees paid are found correct. Hence, it is, Ordered that the instant suit be and the same dismissed for non-prosecution. The petition filed by the petitioner Santosh Kumar Jain and Smt. Radha Rani Jain under section 151 of CPC dated 2.8.07 also disposed of with a note that any further order on the said petition would be infructuous as the suit is dismissed non-prosecution this day. I make no order as to cost." 3. THE petitioners before this Court are the added defendants in the said Title Suit No. 1843 of 2006. For the purpose of deciding the instant case, I am of the view that a set of facts are required to be taken note of. They are as follows: THE plaintiff's filed a suit in the year 2006 praying inter alia for the following reliefs: a) For a declaration that the defendant Banks are contractually bound to act according to the instructions of the plaintiffs as its Customers in respect of then Bank Accounts of the four partnership firms mentioned in the Schedule and they have no right to act on the basis of the instructions of outsiders or to cause loses and/or inconvenience to the smooth running and functioning of the said partnership firms and their Bank Accounts with the defendants mentioned in the schedule below. b) For a declaration to act upon the instructions of the plaintiffs and to rectify the defendants, if any. c) For an order of permanent injunction restraining the defendant Banks from acting on the instruction of outsiders in respect of the Bank Accounts maintained by the plaintiffs with the defendants as partners of the four partnership firms mentioned in the schedule below. d) For an order of temporary injunction with ad -interim order in terms of prayer (c) above. 4. THE original parties in the suit were the plaintiffs and two branches of the Indian Bank. Subsequent to filing of the suit, the plaintiffs took out an interlocutory application wherein the learned Court below was pleased to pass the following order on 22nd December, 2006: "THE record is put up today. 4. THE original parties in the suit were the plaintiffs and two branches of the Indian Bank. Subsequent to filing of the suit, the plaintiffs took out an interlocutory application wherein the learned Court below was pleased to pass the following order on 22nd December, 2006: "THE record is put up today. THE hearing stems from an application under Order 39 Rule 1 and 2 read with section 151 filed by the plaintiffs/petitioners praying for an order of injunction on the ground stated therein. Heard the learned lawyer. Perused the injunction petition and the documents annexed thereto. Considered. Issue notice together with a copy of the injunction application calling upon the defendants to show cause within 10 days from the date of receipt thereof as to why the temporary injunction shall not be granted in terms of the plaintiffs' prayer. Shortly put, the plaintiffs are the businessmen and running four partnership firms in each of which some of the members of the family are partners. THE aforesaid businesses are being carried out at J.N. Mukherjee Road, Howrah and Vidyasagar Street. THE respective bank accounts of the aforesaid partnership firms at Calcutta are being maintained with the Indian Bank at their Strand Road Branch Office and also at their Liluah Branch Office. THE plaintiffs have since instituted a Title Suit No. 1484/06 and obtained an interim order of injunction against Radha Rani Jain and other. In pursuant to the said order the plaintiffs' advocate approached the Bank in writing by a letter asking them to ignore all instructions given to them by one Santosh Kumar Jain and other. But it is alleged that the bank authority are relucting to give any importance to the order of injunction passed by this Court. Hence the present application. It appears that the bank authority practically the General Manager of the Indian Bank, Hare Street Branch is not prima facie appears to be not well conversant with the law of the land. So the plaintiffs are entitled to get an order of injunction as prayed for but without hearing the bank authority I do not incline to pass an order of injunction for an unlimited period. Hence, let there be an order of injunction restraining the defendants from acting on the instruction of outsiders in respect of the bank accounts maintained by the plaintiffs with the defendants as partners till 31.1.07. Hence, let there be an order of injunction restraining the defendants from acting on the instruction of outsiders in respect of the bank accounts maintained by the plaintiffs with the defendants as partners till 31.1.07. Plaintiffs to take steps under Order 39 R.3(a) CPC. Requisites at once. To date for S/R." Thereafter, several other interlocutory orders were passed, out of which the order dated 9th, February, 2007 is set out hereinbelow: "Record is put up today. Summons upon the defendant Indian Bank was duly served. None appears. Plaintiff filed an application under section 151 of CPC stating, inter alia, that the interim order passed by the Court may be affirmed as the bank is reluctant to appear before this Court. According to the plaintiff, notice of injunction was served upon the defendant bank through Court process and the petitioners through their learned advocate communicated the order of the learned Court in writing to the defendant by registered post with A/D. The defendant bank duly received the communication on 2.1.07, but none appeared. So, it appears to me that defendant bank is not willing to proceed with the case. So, the injunction order passed by this Court is hereby modified in the following terms and conditions: Let there be an order of injunction directing the defendant bank to allow the existing credit facilities upto the full extent towards the smooth functioning of the business of the plaintiff and to allow the plaintiff to operate their bank A/Cs. maintained with the defendants as done before in the past and to act under the instruction of the plaintiffs in respect of their bank A/C without violating the norms, terms and conditions of the bank rules and regulations. Let the order of injunction be made absolute. Record not put up on 31.1.07. Fix 14.3.07 for filing requisite." 5. UPON coming to know about all the interlocutory orders passed by the learned Court below, the petitioners herein approached the learned Court below by filing an application under Order 1 Rule 10 of the Code of Civil Procedure, seeking to be added as parties to the suit. By an order dated 4th October, 2007, the learned Court below was pleased to allow that application. By an order dated 4th October, 2007, the learned Court below was pleased to allow that application. By the same order, the learned Court below was pleased to direct the petition filed by the added defendants under section 151 of the Code of Civil Procedure, to come up for hearing on 7th, January, 2008. 6. MEANWHILE, the plaintiffs, on 9th October, 2007, filed a petition before the learned Court below praying for dismissal of the suit for non-prosecution on the ground stated therein. The learned Judge on that day was unable to take up the petition for dismissal of suit of non-prosecution and directed the matter to be placed after Puja Vacation, i.e. on 15th October, 2007. Subsequently, by an order dated 20th November, 2007, the petition for dismissal of suit of non-prosecution was directed to be placed for hearing on 14th, February, 2008. 7. IN the instant application, the added defendants/petitioners' main thrust for challenging the order impugned is with regard to the issue as to whether the plaintiffs had an unfettered right to withdraw the suit of non- prosecution, after having obtained interim orders behind the added defendants' back, by virtue, of which the position between the parties, as existing prior to institution of the suit, stood altered to the added defendants/petitioners' disadvantage. 8. AT the time of hearing, learned advocates appearing on behalf of the parties have referred to several decisions. In support of his case, learned advocate appearing on behalf of the added defendants/petitioners have relied on the following judgments:- 1) AIR 1993 Bombay 160 (Vinod Kumar Kejriwal v. Usha Vinod Kejriwal.) 2) AIR 1973 SC 643 (R. Ramamurthi Aiyar (dead) by L. Rs., Appellant v. Rqjav. V. Rqjeswararao.) 3) AIR 1968 Delhi 181 (paras 4 and 5) Shri Jagdish Chander Dhawan v. Shri Karam Chand Mehra and Anr. 4) AIR 1986 Andhra Pradesh 270 (paras 10 and 11) (Bangaru Pattabhirmayya and Ors. v. Bangaru Gopalakrishnayya and Ors. 5) AIR 1997 Karnataka 152 (Para 19) (K. N. Krishnappa v. T. R. Gopalkrishna Setty by L.Rs. and Ors.) 6) (2003) 8 SCC 648 (paras 25 to 28) (South Eastern Coalfields Ltd. v. State of M.P. and Ors.) 7) (2003) 8 SCC 319 (paras 15 to 29) (Ram Chandra Singh v. Savitri Devi and Ors.) and 8) AIR 1995 Madras 42 (paras 9 to. 12) (Registrar, Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and Ors.) 9. and Ors.) 6) (2003) 8 SCC 648 (paras 25 to 28) (South Eastern Coalfields Ltd. v. State of M.P. and Ors.) 7) (2003) 8 SCC 319 (paras 15 to 29) (Ram Chandra Singh v. Savitri Devi and Ors.) and 8) AIR 1995 Madras 42 (paras 9 to. 12) (Registrar, Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and Ors.) 9. ON the other hand, learned advocate appearing on behalf of the opposite party Nos. 1 2 and 3, being the plaintiffs before the learned Court below, submits that her clients had filed a petition for withdrawal of suit for non-prosecution under the provision of Order 23 of the Code of Civil Procedure and the learned Court below permitted the suit to be dismissed for non- prosecution after being duly satisfied. She further submits that this was not a case where, by virtue of the interim orders obtained by her clients, the position between the parties stood altered to the disadvantage to the added defendants, being the petitioners herein. She submits that since the added defendants were not affected in any way and manner by the interlocutory orders passed by the learned Court below, it was not open to the said added defendants to contest the petition for dismissal of the suit for non-prosecution and therefore, the learned Judge had rightly passed the order in her clients favour on 7th January, 2008 and allowed the suit to be dismissed for non- prosecution. In order to substantiate her submissions, she relies on the following judgments: 1) AIR 1968 SC 111 (M/s Hulas Rai Bay Nath v. Firm K. B. Bass and Co.) 2) AIR 1957 Calcutta 57 (Smt. Saraswati Bala Samanta and Ors. v. Surabala Dassi and Ors.) 3) AIR 1963 Allahabad 638 (Hulas RaiBaijnath v. K. B. Bass and Co. Ltd.) 4) AIR 2003 Bombay 238 (Anil Dinmani Shankar Joshi and Anr. v. Chief Officer, Panvel Muncipal Council, Panvel and Anr.) and 5) (1975) 1 SCC 405 (Shiv Prqsad v. Durga Prasad and Anr.) 10. LEARNED advocate appearing on behalf of the bank more of less maintains a similar stand, as that of the opposite party Nos. 1, 2 and 3, with regard to the issue as to whether the learned Judge could have dismissed the suit for non-prosecution, on the mere asking of the plaintiffs. LEARNED advocate appearing on behalf of the bank more of less maintains a similar stand, as that of the opposite party Nos. 1, 2 and 3, with regard to the issue as to whether the learned Judge could have dismissed the suit for non-prosecution, on the mere asking of the plaintiffs. He, however, submits further that so far as the bank is concerned, the dismissal of the suit for non-prosecution was not prejudicial to the interest of the added defendants and therefore, he does not object to the suit being dismissed for non-prosecution by the learned Court below. In this context, learned advocate appearing on behalf of the bank relies on the following judgments: (1972) 2 SCC 721 (paras 10 and 12) and (1999) 4 SCC 89 (para 22). I have taken into consideration the submissions made by the learned advocates appearing on behalf of the parties and have also gone through the petition as well as the relevant facts, which have been stated hereinbefore. On a plain reading of the order impugned, it appears that the learned Court below was hearing a petition of the added defendants filed under section 151 of the Code of Civil Procedure on 7th January, 2008. It also appears from the said order that in the petition under section 151 of the Code of Civil Procedure, the added defendants/Santosh Kumar Jain and Smt.Radha Rani Jain had made out a case that the plaintiffs had mis-represented before the Court and got an interim order. The learned Court below, however, went on to pass an order on the petition filed by the plaintiffs for dismissal of the suit for non-prosecution, which was actually scheduled to appear for hearing on 14th February, 2008. Although the learned Judge in the order dated 7th, January, 2008 has, inter alia, held that if the plaintiffs were not interested to proceed with the suit, it would be an exercise in futility at the cost of the public money and time to pass any order on the petition under section 151 of the Code of Civil Procedure, he has not spelt as to what was the urgency for taking up the plaintiffs' petition for dismissal of the suit for non- prosecution on that day itself. It is also important to take note of the fact that no consent was taken by the learned Judge from the added defendants to hear out the plaintiffs' petition for dismissal of the suit for non prosecution on that day, i.e. 7th, January, 2008. Usually, by consent of the parties, a matter can be treated as on day's list and orders could be passed by a Court. However, it appears that in the instant case, the learned Judge overlooked this aspect. 11. WHETHER, in the facts of the instant case, the plaintiffs have an unfettered right to get their suit dismissed for non-prosecution on the mere asking or whether the same is subject to be considered by the learned court below in the light of sub-rule 4 of Order 23 Rule 1 of the Code of Civil Procedure, is a matter which requires adjudication, which has not been done by the learned Court below, in the instant case. The learned court below, in my opinion, ought not to have passed the order impugned on 7th, January, 2008, while considering the added defendants' petition under section 151 of the Code of Civil Procedure, knowing fully well that the plaintiffs' petition for dismissal of suit for non-prosecution was scheduled to be taken up for hearing on 14th February, 2008. It is not understandable as to how the learned Judge could prepone hearing of the plaintiffs' petition for dismissal of suit for non- prosecution on 7th January, 2008, without obtaining consent of the added defendants, who had made out a specific case in their petition under section 151 of the Code of Civil Procedure that the plaintiffs had mis-represented before the Court and got an interim order. 12. IN the circumstances, the order impugned is liable to be set aside and the same is hereby set aside. The learned Court below is directed to hear out both the petitions, that is to say, the plaintiffs' petition for dismissal of suit for non-prosecution and the added defendants' petition under section 151 of the Code of Civil Procedure, afresh. Learned Court below, while deciding both the petitions, shall not be influenced in any manner by any observation made herein and it will be purely within realms of his discretion to pass appropriate orders thereon. Learned Court below, while deciding both the petitions, shall not be influenced in any manner by any observation made herein and it will be purely within realms of his discretion to pass appropriate orders thereon. The learned Court below is further directed to hear out and dispose of the two petitions as expeditiously as possible, preferably within a period of three months, but not later than four months from date of communication of this order without granting unnecessary adjournments to any of the parties. The instant application stands disposed of in terms of directions given hereinabove. Urgent xerox certified copy of this order, if applied for, be given to the parties. Application disposed of.