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2009 DIGILAW 614 (CAL)

Md. Moosa v. Shamsul Haque

2009-08-14

NADIRA PATHERYA

body2009
Judgment :- (1) Two applications have been filed being G. A. No. 3713 of 2008 and G.A. No. 1519 of 2009. In G.A. No. 3713 of 2008 the petitioner therein seeks an extension of time to effect the amendment directed by order dated 5th January, 2008 and transposition of the plaintiff No. 2 as defendant No. 9 and for service of the plaint and the summons on the defendant No. 9. In G.A. No. 1519 of 2009 the applicant therein have sought recalling of the order dated 5th January, 2008 on the ground of suppression of material facts. G.A. No. 3713 of 2008 (2) Counsel for the applicant submits that transposition of the plaintiff No. 2 as defendant No. 9 is necessary as the defendant No. 2 is selling properties by treating the properties of the partnership as his own and retaining sums to himself. The family settlement has been relied on by the plaintiff No. 2 showing therein properties given to his son and construction made thereon. Steps have been taken for cancellation of document. Suits have been filed by the plaintiff No. 2 without authorisation and compromise filed therein. Therefore, steps have been taken for cancelling the said suit and compromise. The order passed by K. J. Sengupta, J. on 7th July, 1999 is based on the decision reported in AIR 1972 Supreme Court 1181. It nowhere mentioned in the said order that the suit has been abated although in spite of service of the writ of summons on the defendant No. 1 no written statement was filed nor did the defendant No. 1 enter appearance. Therefore he could not have disputed the decree that may have been passed against him. In his deposition in suit No. 385 of 1961 the defendant No. 1 said that he has no interest in the suit property, therefore, his right would not be effected. In view of Order 22 Rule 4(3) of the Civil Procedure Code in case no application is made under sub rule 1 the suit shall abate as against the deceased defendant alone and the right to sue survives against the legal WBLR-64 heir and representative of the defendant No. 1 who ought to have been brought on record. In view of Order 22 Rule 4(3) of the Civil Procedure Code in case no application is made under sub rule 1 the suit shall abate as against the deceased defendant alone and the right to sue survives against the legal WBLR-64 heir and representative of the defendant No. 1 who ought to have been brought on record. In any event in the application on which the order dated 7th July, 1999 was passed was in respect of bringing on record the legal heir and representative of the defendant No. 3 which was within the period of limitation. By not allowing the said heirs to be brought on record an error was committed. Reliance is placed on AIR 1964 SC 215 , AIR 1964 SC 234 , AIR 1940 SC 215, AIR 2004 SC 394 , (2001)2 KLT 307 and AIR 2009 SCW 3189. C.S. No. 471 of 1953 is a partition suit and the order dated 9th January, 2008 has rightly recorded the said fact, therefore, the order dated 9th January 2008 is in order and as the amendment ejected could not be carried out within the time specified for reasons out in the petition time to carry out the amendment be extended. (3) Counsel for the plaintiff No. 2 opposes G.A. No. 3713 of 2008 and supports G.A. No. 1519 of 2009 and submits that the order dated 7th July, 1999 was not disclosed on 9th January, 2008 and, therefore, the order was passed. An appeal filed from the order dated 7th July, 1999 was dismissed. The order dated 9th January, 2008 could not have been passed as C.S. No. 471 of 1953 abated. The application was filed in February 1999 to record the death of the respondent Nos. 1 and 3b. The basis for such application was the death of the respondent No. 1 in 1995 knowledge whereof was in 1999 while the respondent No. 3b died on 2nd December, 1998. The only order that was passed on 7th July, 1999 was recording the death of the two defendants and the application was dismissed without condoning the delay or setting aside the abatement. An appeal though filed from the order dated 7th July, 1999 was also dismissed. The only order that was passed on 7th July, 1999 was recording the death of the two defendants and the application was dismissed without condoning the delay or setting aside the abatement. An appeal though filed from the order dated 7th July, 1999 was also dismissed. In the appeal the ground taken was that the substitution of the legal and representative of the defendant No. 3b ought to have been allowed as the application was filed within the period of limitation. It was also contended that in view of the decision reported in AIR 1972 Supreme Court 1181 the suit could not have abated as no preliminary decree had been passed. In the plaint the plaintiff sought a declaration that the partnership business stood dissolved and for accounts. Although settlement of share distribution was sought, no partition was sought. Reliance is placed in AIR 1983 Supreme Court 676 and (1994) 1 SCC 1 . Order 22 has no application as an application was filed. An application though filed for setting aside the abatement, the same was disallowed for the reason set out in the order dated 7th July, 1999. In view of suppression of material facts and as held in (1994)1 SCC 1 fraud vitiates all, the order dated 9th January, 2008 on account of suppression must be recalled. AIR 2004 SC 394 is distinguishable on facts as it was a case under Order 22 Rule 4(3) of the Code of Civil Procedure. (4) As the suit has abated there is no question of transposition and the plaintiff seeks to array the plaintiff No. 2 as the defendant and settle his disputes in a suit of 1953. This should not be allowed. In fact by notice dated 15th July, 1999 a public notice was caused to be issued to the general public by Md. Basir, the original defendant No. 5 in Rajnigandha Bharati informing all that Suit No. 474 of 1953 had abated and dismissed by order dated 7th July, 1999. Md. Bashir, the original defendant No. 5 had filed an opposition and contested the application filed in 1999 which resulted in the order dated 7th July, 1999. This will be evident from ground-VIII of the grounds of appeal in APOT No. 612 of 1999. For all the said reasons no order be passed in G.A. No. 3713 of 2008 and G.A. 1519 of 2009 be allowed. This will be evident from ground-VIII of the grounds of appeal in APOT No. 612 of 1999. For all the said reasons no order be passed in G.A. No. 3713 of 2008 and G.A. 1519 of 2009 be allowed. (5) Counsel for the legal heir and representative of the original defendant No. 5 seeks to be added as parties in C.S. No. 471 of 1953, on the ground that in item Nos. 13, 14,15, 16, 24, 32 and 35 of Schedule- A to the plaint shows the defendant No. 5 as co-owner, therefore, the heirs have a right to the said properties and the necessary parties must be added. In view of Order 1 Rule 5 of the Code of Civil Procedure they have a limited interest and the right to sue survives and each heir has a separate right. Each defendant is a co-owner and has a separate interest and share so even if the suit has abated against the defendant No. 1 and 3b it survives against the rest. C.S. No.471 of 1953 is a partition suit and as consent decree was passed in C.S. No. 197 of 2007 on same terms and condition the suit of 1953 also be decreed. A general Power of Attorney was given to the plaintiff No. 2 by the defendant No. 5 and all affidavits were affirmed by him on behalf of the defendant No. 5. (6) In reply Counsel for the petitioner in G.A. No. 3713 of 2008 submits that by order dated 7th July, 1999 only the application was dismissed. Delay was not condoned nor was abatement set aside. Therefore, the order was restricted to the application and not to the suit only the defendant Nos. 3 and 4 entered appearance and filed written statements. The legal heir and representative of the defendant No. 3b were not brought on record although the application was within period of limitation and for an Act of Court the litigant should not be prejudiced and for the said proposition reliance is placed on (2000)6 SCC 359 . The appeal from the order dated 7th July 1999 was dismissed simpliciter without any reasons. Therefore, the Trial Courts order was not affirmed without any reasoning. Reliance is placed on (2000)7 SCC 695 : 2001 WBLR SC 1. The appeal from the order dated 7th July 1999 was dismissed simpliciter without any reasons. Therefore, the Trial Courts order was not affirmed without any reasoning. Reliance is placed on (2000)7 SCC 695 : 2001 WBLR SC 1. The said error which has kept in the order dated 7th July 1999 be corrected by this Court by bringing on record the legal heirs of defendant No. 3b. The Court can correct the mistake at any stage as held in AIR 1999 Supreme Court 2979. In fact the defendant No. 1 s Advocate appeared in the appeal Court. (7) Order 22 of the Code of Civil Procedure makes no distinction between suits but is applicable to suits of all categories. Order 1 Rule 10(2) of the Civil Procedure Code has no application and AIR 1984 Supreme Court 326 has espoused the meaning of "distribution". The opposition filed by Md. Shadab has not been verified properly and therefore no reliance be placed on it. For the said proposition reliance is placed on AIR 1970 Supreme Court 652 and in view of no opposition the petitioners case is uncontroverted. In G.A. No. 1519 of .2009 no opposition has been filed as it may have delayed hearing of G.A. No. 3713 of 2008. For all the said reasons G.A. No. 3713 of 2008 be allowed and G.A. No.1519 of 2009 be dismissed. (8) Having considered the submissions of the parties, G.A. No. 3713 of 2008 must fail for the following reasons : - i) The suit filed by Md. Ebrahim was for dissolution of partnership and accounts. ii) All the partners were made parties and on the death of each partner their legal heirs and representatives were brought on record till 1999. iii) In G.A. No.2334 of 1999 the plaintiffs sought to substitute the heirs of the defendant Nos. 1 and 3b who had died in 1995 and 1998. iv) Such application was dismissed by order dated 7.7.1999 in view of AIR 1972 SC 1181 . The appeal filed therefrom was also dismissed. No Special Leave Petition was filed therefrom and, therefore, the order dated 7.7.1999 was accepted by the parties. v) The decision both majority and minority view in AIR 1972 SC 1181 supports the proposition that in a partnership action, all the partners must be made parties. The appeal filed therefrom was also dismissed. No Special Leave Petition was filed therefrom and, therefore, the order dated 7.7.1999 was accepted by the parties. v) The decision both majority and minority view in AIR 1972 SC 1181 supports the proposition that in a partnership action, all the partners must be made parties. vi) The only reason for dissent was that Jagdish Narain was not a partner in the firm and not made a party to the original application. This is not so in the instant case. vii) In view of AIR 1947 Oudh 28 and AIR 1930 Madras 714 there can be no doubt that the suit had abated as the Legal heir and representatives of the deceased were not brought on record within the period of limitation. viii) The order dated 7.7.1999 proceeded on the basis that the suit had abated and therefore not bringing the heirs and representative of deceased 3(b) was justified. ix) By not bringing the order dated 7.7.1999 to the notice of the Court on 9th January, 2008 a material fact was suppressed from Court, which fact if disclosed would have resulted in no order being passed as the suit had abated. x) The amendment though allowed has not been carried out and no sufficient cause exists for extending the time to carry out the amendment while sufficient ground exists for recalling the order dated 9th January, 2008. xi) Order 22 Rule 4(3) Civil Procedure Code has no application as an application was filed and the plea of ignorance cannot also come to the aid of the applicant in G.A. No. 3713 of 2008 as mentioned in order dated 7.7. 1999. xii) The cases cited therefore by the applicant in G.A. No. 3713 of 2008 is of no assistance to it. AIR 1964 SC 215 specifically laid down that "the Court is not to invoke its inherent powers under S. 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased puny on the record................." and was not a case of partnership action. So also AIR 1964 SC 234 was not a case of partnership action. xiii) AIR (1940) PC 215, AIR (2004) SC 394 can be distinguished on facts. So also AIR 1964 SC 234 was not a case of partnership action. xiii) AIR (1940) PC 215, AIR (2004) SC 394 can be distinguished on facts. xiv) Partition though sought as a relief is only after the grant of the primary relief of dissolution of partnership and accounts for purposes of division and distribution of the partnership assets. Therefore, it cannot be considered as a suit for partition. From the pleadings in the plaint too, the case made out is for dissolution of partnership. xv) The contentions of the legal heirs of Md. Bashir cannot be accepted as the original defendant No. 5 their predecessor- in-interest had contested G.A. No. 2334 of 1999, which resulted in order dated 7.7.1999, a publication was also made by Mr. Bashir informing all that C.S. No. 471 of 1953 had abated. Therefore, the volte face by his legal heirs and representative cannot be allowed. xvi) For all the said reasons G.A. No. 3713 of 2008 is dismissed and G.A. 1519 of 2009 allowed and the order dated 9th January 2008 re-called.