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2009 DIGILAW 59 (GAU)

Ka Boilin Syngkon v. Ka Rant Shallam

2009-01-28

TINLIANTHANG VAIPHEI

body2009
JUDGMENT T. Vaiphei, J. 1. This revision petition under Clause 6 of the Assam High Court (Jurisdiction over District Council Courts), Order, 1954 is directed against the judgment dated 30.8.2005, passed by the learned Judge, District Council Court, Khasi Hills, Shillong in Title Appeal No. 1 of 2002, reversing the decision of the Sub-District Council Court, Shillong dismissing Title Suit No. 23 of 2000 as barred by res judicata. 2. The case of the petitioner, as pleaded in the plaint, is that she is the absolute owner of the suit land and houses, which was acquired by her deceased father U Bud Shallam on 20.3.1929. In the suit land, there were some houses, one of which was occupied by her aunty Ka Tein Shallam, i.e., the original defendant with the permission of her father and without payment of rent so long as she could not acquire landed property of her own. A lot of improvements had been carried out in the suit houses by the plaintiff with the permission of Syiem of Mylliem and his Dorbar dated 22.3.1933, and its order dated 1.7.1937. However, after the death of the petitioner's father, the original defendant started to assert ownership of the suit land and houses and even went to the extent of interfering with the collection of house rents. The petitioner, therefore, had issued notice to the original defendant requiring her to vacate the suit land and houses and to pay up mesne profits. When the notice did not evoke any response, the petitioner instituted Title Suit No. 9 of 1974, in the court of Syiem of Mylliem and Dorbar, Mawkhar, Shillong for declaration of her right to and possession of the suit land and houses. It would appear that due to some development in the affairs of the Syiemship, the court became non-functional whereupon the suit was transferred to the court of the Sub-District Council Court and was accordingly re-numbered as Title Suit No. 20 of 1990. The suit was contested by the original defendant. In the written statement, the said defendant denied the allegations of the petitioner and instead laid claim to ownership of the suit land and houses. The suit was contested by the original defendant. In the written statement, the said defendant denied the allegations of the petitioner and instead laid claim to ownership of the suit land and houses. It may be noted that during the pendency of the suit, the original defendant U Tein Shallam passed away, and came to be substituted by the respondent No. 7 and her four daughters, namely, Ka Do Shallam, (ii) Ka Mila Shallam, (iii) Ka Nela Shallam and (iv) Ka Eu Shallam as her legal representatives. It appears that the respondent No. 7 (who was impleaded as the defendant No. 5 after the death of the original defendant) had failed to contest the suit whereupon the trial court by the judgment and order dated 14.2.1992, decreed the suit ex parte. 3. The petitioner asserts that no appeal or revision was promptly preferred by the respondents whereupon the petitioner filed Execution Case No. 1 of 1992. However, after the expiry of the period of limitation, the respondent No. 7 herein preferred an appeal before the Addl. District Council Court, and the same was registered as MCA No. 4 of 1992. Due to the pendency of the appeal, the proceeding in Execution Case No. 1 of 1992, was kept in abeyance. The appellate court ultimately dismissed the appeal. The said respondent No. 7 promptly filed a revision petition before this Court in Civil Revision No. 41 (SH) of 1996. This revision petition was dismissed on 14.3.1997. The special leave petition filed by the respondent No. 7 before the Hon'ble Supreme Court also apparently came a cropper. It is the case of the petitioner that the judgment and order dated 14.2.1992, passed by the trial court decreeing the suit has now attained finality. Thus, further proceedings in Execution Case No. 1 of 1992, were resumed. After adjourning the case for a number of times, the respondent No, 7 on 7.10.1999, filed an application before the Executing court informing that all the substituted defendants/respondents except him had expired, that he himself was not residing on the suit land, and was given the information that the suit land and houses were occupied by the children and grand children of the deceased respondents and, therefore, prayed for staying the execution of the decree obtained by the petitioner. The Executing Court by the order dated 7.10.1999, rejected the application and directed the Bailiff of the court to execute the decree dated 14.2.1992, and submit compliance report on 11.11.1999. The respondent No. 1 carried the order to appeal before the Learned Judge, District Council Court, Shillong, which was registered as Misc. Appeal No. 4 of 1999, (MCA No. 4/99). The Learned Judge admitted the appeal and stayed the order of the Executing Court vide the order dated 7.10.1999. 4. While MCA No. 4/99 was still pending, six persons, the respondent Nos. 1 to 6 herein, claiming to be the legal representatives of the deceased defendants No. 1 to 4 filed a joint application for substitution contending that though they were occupying the suit land and houses; that they were never aware of the execution proceeding and that they came to know of it only when the Bailiff came to the suit land to execute the decree. They also claimed that they came to know about the institution and disposal of T.S. No. 20 of 1990, only on that day. The appellate court by the order dated 18.4.2000, allowed the application and impleaded those applicants as party respondents in the appeal. In the meantime, the said six respondents also instituted Title Suit No. 23 of 2000, against the petitioner and the respondent No. 7, who had contested Title Suit No. 20 of 1990, as the substituted defendant No. 5, for setting aside the said judgment and decree dated 14.2.1992. The Sub-District Council Court by the order dated 28.2.2002, dismissed the suit as barred by res judicata. The respondents No. 1 to 6 thereupon preferred Title Civil Appeal No. 1 of 2002 (TCA No. 1/02) before the Learned Judge. District Council Court, Shillong. According to the petitioner, though the appeal was contested by her, the appellate Judge without hearing him, suddenly, by the judgment dated 30.8.2005, allowed the appeal on the eve of his retirement and remanded the suit to the trial court for re-hearing and then caused the disappearance of the record. The petitioner further states that it was only in May, 2006 that the Judicial Section of the Office of the Learned Judge of the District Council Court seemed to recover the records. The petitioner further states that it was only in May, 2006 that the Judicial Section of the Office of the Learned Judge of the District Council Court seemed to recover the records. It is submitted by the petitioner that there is no delay in filing this revision petition as the Indian Limitation Act, 1963 is not applicable in this case. 5. Mr. M.Z. Ahmed, the learned senior Counsel for the petitioner, submits that the appellate court acted with mala fide intention and bias and colluded with the respondents in passing the impugned order without affording opportunity of hearing to the petitioner; this alone is sufficient to set aside the impugned order. He further contends that the learned Judge completely overlooked or deliberately ignored the fact that the suit is barred by res judicata, or, at any rate by the principles of res judicata, inasmuch as the respondents, who are claiming their right to the suit properties through the respondent No. 7, are absolutely bound by the judgment and decree dated 14.2.1992, passed in the former suit, i.e., Title Suit No. 20 of 1990 between the petitioner and the respondent No. 7. It is also contended by the learned senior Counsel that the manner in which the learned Judge disposed of the appeal without hearing the petitioner, that too, on the eve of his retirement, exhibited improper exercise of jurisdiction, bias and gross violation of principles of natural justice these reasons alone render the impugned judgment vitiated. In support of his various contentions, the following cases are relied by the learned senior Counsel: (i) Vijayabai v. Shriram Tukaram (1999) 1 SCC 693 , (ii) Abdul Rahman v. Prasony Bai and Anr. (2003) 1 SCC 488 and (iii) Amarendra Komalam and Anr. v. Usha Sinha and Anr. (2005) 11 SCC 251 . On the other hand, Mr. K. Marbaniang, the Learned Counsel for the respondents, contends that the impugned judgment and order is perfectly in order, and is not liable to be interfered with. (2003) 1 SCC 488 and (iii) Amarendra Komalam and Anr. v. Usha Sinha and Anr. (2005) 11 SCC 251 . On the other hand, Mr. K. Marbaniang, the Learned Counsel for the respondents, contends that the impugned judgment and order is perfectly in order, and is not liable to be interfered with. He argues that the Learned Sub-District Council Court misconceived the settled legal position that the suit could not be dismissed outright on the ground of res judicata without the benefit of reading the written statement of the defendant and without first framing the issues; the trial court had thus improperly exercised its jurisdiction in not insisting the defendant to file her written statement in terms of her undertaking to that effect. It is further contended by the Learned Counsel for the respondents that the predecessors of the respondents had died during the pendency of the suit as stated in paragraph 11 of their plaint but they were never impleaded by the petitioner as the legal representatives of the deceased in fact, the decree was obtained by the petitioner in collusion with the defendant No. 2 (the respondent No. 7 herein). It is the contention of the Learned Counsel that since the decree was obtained by the petitioner by means of collusion and fraud, which is, therefore, a nullity, the principles of res judicata are not applicable to this case. Contending that the impugned order does not suffer from jurisdictional errors, the Learned Counsel prays for dismissal of the revision petition with costs. He relies on (i) Beli Ram & Bros. v. Mohd. Afzal AIR 1948 PC 168, (ii) Satya v. Teja Singh AIR 1975 SC 105 , (iii) Nachhittar Singh v. Jagir Kaur AIR 1986 P&H 197 and (iv) Gram Panchayat, Naulakha v. S.C. Ujagar Singh AIR 2000 3272, to buttress his contentions. 6. After hearing the submissions made by the Learned Counsel representing the rival parties and after perusing the materials on record including the records of the courts below, the first point for consideration in this case is whether the plaint can be rejected by a trial court even before filing of written statement by the defendant? The procedure for rejection of plaint is engrafted in Order VII, Rule 11 of the Code of Civil Procedure, 1908, which is in the following terms: 11. Rejection of plaint. The procedure for rejection of plaint is engrafted in Order VII, Rule 11 of the Code of Civil Procedure, 1908, which is in the following terms: 11. Rejection of plaint. - The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the court to so correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) There the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) whore the plaintiff fails to comply with the provisions of Rule 9: (Italic mine) The proviso is not relevant for our purpose, and need not be reproduced for the sake of brevity. 7. Even a cursory look at Order VII, Rule 11(d) of the CPC will plainly show that a plaint can be rejected at any stage-even at the very threshold-if it appears from the statement in the plaint to be barred by law. However, in my opinion, the court must give a meaningful reading not only to the plaint but must also look into the documents, if any, relied on by the plaintiff under Order VII, Rule 14CPC, and if it is manifestly meritless or vexatious in the sense of not disclosing a clear right to sue, it may exercise its powers under Order VII, Rule 11 of the Code and reject the plaint. In other words, for deciding whether the plaint discloses cause of action or whether the suit is barred by law, the court has to see only the averments in the plaint and the accompanying documents relied on in the plaint and the facts elicited from the plaint by examining him under Order X, CPC. However, in case where the validity of a particular document itself is disputed, the matter cannot be considered and decided under Order VII, Rule 11 CPC. However, in case where the validity of a particular document itself is disputed, the matter cannot be considered and decided under Order VII, Rule 11 CPC. Furthermore, for the purpose of deciding the application under Order VII, Rule 11 for rejecting the plaint, the court has to presume the facts stated in the plaint to be true. The law is now settled by the Apex Court in Saleem Bhai v. State of Maharashtra (2003) SCC 557, in the following manner: 9. A perusal of Order 7, Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7, Rule 11, CPC at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under Clauses (a) and (b) of Rule 11 of order and CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects. Therefore, the trial court did not commit jurisdictional error in holding that the plaint could be rejected at the threshold, i.e., even before the filing of her written statement, where the suit appeared from the statement in the plaint to be barred by law: it was not necessary for the court to require the defendant to file her written statement; But possessing the power to reject a plaint where the suit appears from the statement in the plaint to be barred by law is one thing, the legality of the exercise of such power is an entirely different exercise. In the instant case, the trial court rejected the plaint as it found the suit to be barred by res judicata or the principles of res judicata. The appellate court disagreed. In the instant case, the trial court rejected the plaint as it found the suit to be barred by res judicata or the principles of res judicata. The appellate court disagreed. This necessarily leads me to scrutinize the plaint filed by the respondents and the accompanying documents to determine as to whether the suit appears to be barred by res judicata or the principles of res judicata. The case of the respondents before the appellate court is that the judgment and decree dated 14.2.1992, passed by the Subordinate District Council Court in T.S. No. 20 of 1990 was passed against dead persons, namely, the substituted defendants No. 1 to 4 wherein the respondent 7 herein was the defendant No. 5 without bringing the legal representatives of the deceased defendants on record and is, therefore, a nullity, and the question of res judicata does not arise where a decree is a nullity Since the contents of paragraph 11 of the plaint filed by the respondents in Title Suit No. 23 of 2000, is relied on by the appellate court to hold that the decree in question passed before the death of the contesting defendants is a nullity and not binding upon their legal heirs, it will be instructive to reproduce them below: 11. That during the pendency of the said suit, Ka Midela Shallam expired on 30.6.1991, Ka Mila Shallam expired on 28.10.1991, and Ka See Shallam expired on (sic) the year 1990, at Bangladesh as she was married to a Muslim of Bangladeshi national. I may as well reproduce paragraph 12 of the same plaint: 12. That after the death of the mother/grandmothers of the plaintiffs, the defendant has obtained an ex parte decree against the deceased mother/grandmothers on 14.2.1992, in the aforesaid suit and that the plaintiffs have no knowledge whatsoever about the suit as they were not all substituted in place of their respective mother/grandmother. That after the death of the mother/grandmothers of the plaintiffs, the defendant has obtained an ex parte decree against the deceased mother/grandmothers on 14.2.1992, in the aforesaid suit and that the plaintiffs have no knowledge whatsoever about the suit as they were not all substituted in place of their respective mother/grandmother. Let me now come to the conclusions of the appellate court, which are available at the last but fifth paragraph of the impugned judgment, which is in the following terms: Furthermore, as regards the contention of the learned lawyers for the appellants that the appellants have clearly stated in their plaint at paragraph 11 that their mothers/grandmothers expired on 30.6.1991, 28.10.1991 and 1990, before the judgment and decree dated 14.2.1992, was passed ex parte, the learned lawyer for the respondent No. 1 contends that upon being allowed to be impleaded (by the learned Additional Judge, Additional District Council Court, Shillong), the said grand daughters and great grand daughters (appellants) of (Late) Ka Tein Shallam, instead of contesting the Execution Case No. 1 of 1992, arising out of Title Suit No. 20 of 1990, preferred a fresh suit, Title Suit No. 23 of. 2000, against the respondent No. 1 on the grounds which were directly and substantially in issue in Title Suit No. 20 of 1990. To my mind, unless and until the claim of the appellants in paragraph 11 of their plaint is disproved, they are still at liberty to adhere to the said Title Suit No. 23 of 2000, and the option for the respondent No. 1 (the petitioner herein) to question its propriety is to file her written statement. 8. The question which now falls for consideration is whether the averments made in the plaint accompanied by the documents filed thereto disclose that the suit appeared to be barred by res judicata or principles of res judicata. There can be no dispute that the respondents are the legal heirs of the original defendant and the substituted defendants in Title Suit No. 20 of 1990, and will be barred by res judicata or principles of res judicata from litigating under the title of their predecessors-in-interest such as those defendants if there is no infirmity in the decree under challenge. The case set up by the respondents in the suit is that the decree in question was passed before the death of the substituted defendants without bringing their legal representatives like them on record, and the decree passed against dead persons is null and void and will not operate as res judicata against the subsequent suit instituted by them. It must be noted that the respondents No. 7, who was the substituted defendant No. 5, had contested the suit throughout and never communicated to the trial court about the death of the remaining substituted defendants during the pendency of Title Suit No. 20 of 1990. He was the one who defended the suit and had even filed special leave petition against the decree in question in the Supreme Court and cannot, as such, be accused of collusion with the petitioner at that time. The case of the respondent Nos. 1 to 6 that the substituted defendants died on the dates mentioned by them was pleaded by them for the first time in the suit instituted by them: in fact, such statement was not even made in their application for impleadment in Misc. Appeal No. 4 of 1999. Even the statement made by them about the death of their predecessors-in-interest is not supported by documentary evidence such as death certificates having presumptive value. It is also interesting to note that the respondent No. 7 in his application dated 7.10.1999, filed by him before the Executing Court (Annexure-1) did not make any whisper of allegation that the substituted defendant Nos. 1 to 4 died before the death of the impugned judgment and decree dated 14.2.1992. All that he pleaded was that "meanwhile all the female judgment-debtors, in the above suit have all died except one surviving male judgment debtor." Vide para 3 of the application. He was evasive, ambiguous and apparently economical with the truth thereby raising sufficient doubt in the case set up by the respondents that the substituted defendants had died prior to the impugned judgment and decree. One cannot overlook the glaring fact that the respondents are now challenging a decree passed by a competent civil court over eight years back. Under the circumstances, it is not possible, nor is it reasonable, to assume that the original defendants had died before passing the judgment and decree dated 14.2.1992. One cannot overlook the glaring fact that the respondents are now challenging a decree passed by a competent civil court over eight years back. Under the circumstances, it is not possible, nor is it reasonable, to assume that the original defendants had died before passing the judgment and decree dated 14.2.1992. A fortiori, the judgment and decree cannot possibly bear the stamp of nullity. If the decree in question cannot be considered to be a nullity, the suit instituted by the respondents litigating under the title of their predecessors-in-interest is certainly barred by res judicata or, at any rate, by the principles of res judicata. A litigant cannot be, and should not be, easily deprived of the fruits of litigation prosecuted by her over the years at the slightest pretext. On the other hand, there is sufficient ground for inferring that the suit has been belatedly instituted by the respondents as an afterthought in collusion with the respondent No. 7 as a last ditch effort to prevent the execution of the impugned decree. In the view that I have taken, the Learned Judge of the District Council Court exceeded his jurisdiction in interfering with the order of the Sub-District Council Court. 9. The result of the foregoing discussion is that this revision petition succeeds. The impugned order dated 30.8.2005, passed by the Learned Judge, District Council Court, Shillong in Title Civil Appeal No. 1 of 2002, arising out of Title Suit No. 23 of 2000, is hereby set aside. The Executing Court may now execute the decree dated 14.2.1992, passed by the Sub-District Council Court in Title Suit No. 20 of 1990, without any hindrance. The respondents shall pay the costs throughout. Send down the L.C. Records without any loss of time. Petition allowed.