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2010 DIGILAW 645 (ORI)

Prava Sinha v. Bhabatosh Sinha

2010-09-16

R.N.BISWAL

body2010
JUDGMENT R.N. BISWAL, J. — In this writ petition, the petitioner calls in question the order dated 26.9.2008 passed by the learned Civil Judge (Senior Division) 1st Court, Cuttack in C.S. No.375/2002 rejecting the petition filed by the petitioner under Order XV, Rules 1 and 2 read with Section 151 of C.P.C. 2. Shorn of unnecessary details the facts leading to filing of this writ petition is that the petitioner as plaintiff filed C.S. No.375/2002 before learned Civil Judge (Senior Divi¬sion) 1st Court, Cuttack for declaration of her title and interest over the suit property as described in the plaint, wherein opp.parties 3 to 7 were arraigned as proforma defendants. On being noticed, all the defendants appeared before the Court below and filed their respective written statements. Except de¬fendant Nos.1 and 6, all the defendants pleaded that they had no objection for passing a decree in favour of the plaintiff-petitioner. Though defendant No.2 raised a counter claim in his written statement, he did not press the same. 3. On 10.12.2004, the plaintiff-petitioner filed a peti¬tion under Order XV, Rules 1 and 2 read with Section 151 of C.P.C. with prayer to pronounce the judgment against defendant Nos.2 to 5 and 7, since they admitted her case in their written statements and further stated that they had no objection if a decree is passed in her favour. 4. Defendants - opp.parties 1 and 2 contested the said petition. The trial Court held that the question to be decided was whether the disputed property belonged to late R.N. Sinha, the father of the defendants - opp.parties. Plaintiff-petitioner is the wife of opp.party No.4, one of the sons of late R.N. Sinha. She has filed the suit mainly on the basis of adverse possession. Even though the averments made in the written state¬ments filed by defendants 2 to 5 and 7 did not disclose apparent¬ly a denial pleading with regard to the nature of claim and the property involved, presence of all the defendants appear to be reasonable and proper for just decision of the suit and accord¬ingly, rejected the petition. 5. Even though the averments made in the written state¬ments filed by defendants 2 to 5 and 7 did not disclose apparent¬ly a denial pleading with regard to the nature of claim and the property involved, presence of all the defendants appear to be reasonable and proper for just decision of the suit and accord¬ingly, rejected the petition. 5. Learned counsel for the petitioner submitted that the words ‘may’ and ‘at once’ deployed in rule 2(1), Order XV of C.P.C. imply that the Court must pronounce the judgment for or against any defendant, who is not at issue with the plaintiff and continue the suit against other defendants, as per the decision in the case of Shri Rangaswami, The Textile Commissioner and others, v. The Sagar Textile Mills (P) Ltd. and another reported in AIR 1977 Supreme Court 1516. 6. Learned counsel for the petitioner drawing attention of the Court to the relevant portions of the written statements of opp.parties 2 to 5 and 7, further contended that those defendants in clear terms have stated in their written statements that they have no objection if the decree is passed in favour of the plain¬tiff-petitioner. 7. Learned counsel for the petitioner, further submitted that the observation of the learned Court below that as per the pleadings of the parties, the moot question is as to whether the disputed property belonged to the father of the defendants - opp.parties, requires adjudication is erroneous, since except defendants 1 and 6 no other defendants raised the dispute to the effect that it was the property of late R.N. Sinha, their father. Such dispute between the plaintiff and de¬fendant Nos.1 and 6 would be adjudicated during trial of the suit, which has nothing to do with other defendants-opp.parties, who are not at issue. Learned counsel for the opp.party supported the decision rendered by the trial Court. 8. Such dispute between the plaintiff and de¬fendant Nos.1 and 6 would be adjudicated during trial of the suit, which has nothing to do with other defendants-opp.parties, who are not at issue. Learned counsel for the opp.party supported the decision rendered by the trial Court. 8. In the decision Shri Rangaswami (supra) the question for determination before the apex Court was, whether the Textile Commissioner, who decided to issue appropriate direction to any manufactur¬er or class of manufacturers was obliged to specify therein the period for which the direction would remain in operation in view of the provision contained under Clause 20 of The Cotton Textiles (Control) Order, 1948, which reads as follows :- “xx xx xx 20(1) The Textile Commissioner may from time to time issue directions in writing to any manufacturer or class of manufactur¬ers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof, which they shall or shall not produce during such periods as may be specified in the directions, and they shall comply with such directions. 20(2) In the exercise of the powers conferred upon him by sub-clause (1) the Textile Commissioner shall have regard to the capacity of the producer to produce cloth or yarn of different descriptions or specifications and to the needs of the general public.” The apex Court held :- “xxx it is well settled that the word “may” is capable of meaning “must” or “shall” in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the textile Commissioner to issue direc¬tions is coupled with the duty to specify the particular period for which the directions shall be operative. Directions of the kind envisaged by Cl.20 are influenced and justified by exigen¬cies which render it imperative that the directions be reviewed from time to time. Directions of the kind envisaged by Cl.20 are influenced and justified by exigen¬cies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions are limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becomes obli¬gatory.” As per this decision, once the Textile Commissioner issued direction to any manufacturer regarding the class or specifica¬tions of cloth or yarn and the maximum or the minimum quantities thereof, which he shall or shall not produce, must prescribe the period for doing or for bearing from doing so. Because the discretion to issue such notice is coupled with the obligation to specify the period for which the notice would be operative. In my considered opinion the said decision cannot be applicable to the present case. The word ‘may’ employed in Rule 2(1) Order XV of C.P.C. indicates that the power is discretionary, but it must be judicious. 9. On perusal of the written statements of the defendants Nos.2 to 5 and 7, it is found that defendant No.2 in paragraph 9 has stated :- Written Statement of Defdt. No.-2 Paragraph-9 :- ” Xx xxx xxx The Plaintiff has prescribed and perfected her absolute title over the entire suit land and the building constructed by her and as such this Defdt. No.2 has no challenge if the suit is decreed in favour of the plaintiff.” Written Statement of Defdt. No.3 Paragraph-6 :- “xx xx xx That this Defendant has no claim over the schedule and the building constructed by the Plaintiff through her own endeavour and has no objection if the suit is decided in his presence as proforma Defendant granting relief to the Plaintiff.” Written Statement of Defdt. No.4 Paragraph-1 :- “xx xx xx This Defendant has no objection if the decree is passed in favour of the Plaintiff.” Joint Written Statement of Defdt. Nos.5 & 7 Paragraph-1 :- “xx xx xx That these defendants while not disputing the plaint allega¬tions xxxxxx.” Paragraph-2 :- “xx xx xx That these Defendants have no objection if the relief is granted in favour of the Plaintiff to which she is very much legally entitled to.” Paragraph-4 :- “xx xx xx That these Defendants being unnecessarily impleaded, they may be deleted from the suit.” 10. So, it is clear from the written statements of defend¬ant Nos.2 to 5 and 7 that they have no objection if the suit is decreed in favour of the plaintiff-petitioner. As it appears, it weighed the mind of the trial Court that when the defendants, who are governed by Dayabhag Schools of law are sons and daughters of late R.N. Sinha, they are to inherit their father equally and if the suit would be decreed as against defendant Nos.2 to 5 and 7, then the contesting defendants would automatically be defeated, which is not correct. If the impugned order is allowed to stand, it would lead to miscarriage of justice. 11. Under the facts and circumstances of the case, the writ petition is allowed and the impugned order dated 26.9.2008 passed by learned Civil Judge (Sr. Division) 1st Court, Cuttack is set aside. The suit shall be decreed as against defendant-opp.parties 2 to 5 and 7 and it shall proceed against the remaining defend¬ants. Since it is a suit of the year 2002, the trial Court is directed to dispose of the same as expeditiously as possible preferably within a period of five months from the date of re¬ceipt of this order. No cost. Petition allowed.