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2014 DIGILAW 331 (CAL)

Sila Roy v. Sailendranath Mukherjee

2014-04-08

ARINDAM SINHA

body2014
Judgment : Arindam Sinha, J. This revisional application under Article 227 of the Constitution of India is at the instance of defendant no.7 and substituted defendant no.8(b) in Title Suit no.192 of 1988. They have challenged order no.55 dated 28th February, 2006 passed by the court of the 9th Additional District Judge at Alipur in Title Appeal no.198 of 1995 in dealing with the application made under Section 151 of the Code of Civil Procedure by the opposite parties being the substituted defendants nos.1 series who are the substituted respondents nos.1 series in the said appeal. By the impugned order the cross-objections of the petitioners were found to be non-est since, the learned Appellate Court below found, the appeal had already abated. It is necessary that the facts arising in the suit and appeal be stated in brief. The plaintiffs being the son and daughter filed the suit for declaration of their title and permanent injunction claiming that their father Surendranath Purkait was a settlee in respect of the suit land. They alleged the defendant nos.1 and 2 had got executed and registered, deeds of conveyance in their favour by practicing fraud upon their father. The case of the defendant nos.7 and 8 in the suit was that the said Surendranath Purkait had registered a ‘Kabuliyat’ on 28th August, 1928 in favour of his landlord, the jamindar Kalidas Roychowdhury, for a period of nine years but on 31st August, 1929 had surrendered his tenancy right. Upon such surrender the suit land was duly recorded in the name of the said jamindar as his khas land. The said defendants claim to have thereafter purchased the suit land from the Roychowdhurys. Title Suit no.192 of 1988 was dismissed on contest. The learned Trial Court found that the deeds challenged by the plaintiffs were good deeds. The plaintiffs being aggrieved filed the appeal. Upon the death of the appellant no.1 and the appellant no.2 not having taken any step thereafter, by order dated 8th August, 1997 the appeal stood abated against the appellant no.1. On 5th April, 2002 the petitioner no.1 made an application praying for, inter alia, recall of the order dated 8th August, 1997 on the ground that the appeal against the appellant no.1 could not have abated as the legal representatives of the said deceased appellant being the substituted respondent nos.1 series were already on record. On 5th April, 2002 the petitioner no.1 made an application praying for, inter alia, recall of the order dated 8th August, 1997 on the ground that the appeal against the appellant no.1 could not have abated as the legal representatives of the said deceased appellant being the substituted respondent nos.1 series were already on record. By order dated 5th May, 2003 the learned Appellate Court below held it is evident that respondent nos.1(a) to 1(f) and 2 are claiming title from the appellant no.1 by registered deed which is being challenged in the original suit. When they represent the appellant no.1 in respect of the suit property they may be accepted as legal representatives of the appellant no.1. They being already on record the appeal against respondent no.1 should not be abated. The learned Appellate Court then went on to allow the second application of the petitioner no.1 by accepting her cross-objection. It appears, however, that such acceptance was kept open to be agitated at the time of hearing of the appeal. The opposite parties/substituted respondents then filed an application under Section 151 read with Section 152 of the Code of Civil Procedure praying for necessary order rejecting the cross appeals filed by the petitioners by setting aside or vacating the order dated 5th May, 2003. In paragraph 10 of the said application the opposite parties stated that the said order dated 5th May, 2003 was passed after hearing both sides. Subsequently on 5th July, 2003 the appeal was called on for hearing repeatedly but the appellant no.2 was absent not having taken any steps. Both sets of defendants being the petitioners and opposite parties herein had filed their respective haziras. In the circumstances the learned Appellate Court below by order no.29 dated 5th July, 2003 dismissed the appeal in the presence of the defendants and fixed 22nd July, 2003 for hearing of the cross-objection. Soon thereafter by the impugned order the said application of the opposite parties/substituted respondent nos.1series was taken up and allowed on contest. What is clear from the above narrative is that the order dated 5th May, 2003 was made on contest by which the abatement of the appeal stood set aside. The opposite parties/respondents nos.1 series did not challenge that order. On the contrary, in their presence the appeal was called on thereafter on 5th July, 2003 and dismissed for default. What is clear from the above narrative is that the order dated 5th May, 2003 was made on contest by which the abatement of the appeal stood set aside. The opposite parties/respondents nos.1 series did not challenge that order. On the contrary, in their presence the appeal was called on thereafter on 5th July, 2003 and dismissed for default. Therefore, for the purposes of dealing with this revisional application, it is not necessary to go into the question whether or not the opposite parties/respondents nos.1 series who had been impleaded as the legal representatives of the deceased defendant no.1, could also be said to be the legal representatives of the deceased appellant no.1. What is to be seen is whether in making the impugned order the learned Appellate Court had committed a breach of procedure which would invite interference by this court. Mr. Roychowdhury, learned Senior Advocate appearing on behalf of the petitioners, submitted there was no occasion for the learned Appellate Court below to make the impugned order in exercise of inherent power as specific provisions of the Code of Civil Procedure were applicable for the purposes of the procedure to be followed in dealing with the contentions in the said application invoking Sections 151 and 152 of the Code made by the opposite parties nos.1 series. He relied on Order 41 Rules 4, 22 and 33 of the Code. He submitted that the said application ought to have been rejected as there could not be any question of recall of the order setting aside the abatement by exercise of inherent power since there were two plaintiffs in the suit and the decree appealed from proceeded on a ground common to both the plaintiffs. Any one of the plaintiffs could appeal from the whole decree and thereupon the Appellate Court could reverse or vary the decree as the case may be. He submitted that therefore in any event the appeal could not have abated by reason of the death of the appellant no.1. He submitted further that the Appellate Court had wide powers to deal with the appeal as provided under Order 41 Rule 33 of the Code. He submitted that the cross-objections of the petitioners were duly filed and admitted. He submitted that therefore in any event the appeal could not have abated by reason of the death of the appellant no.1. He submitted further that the Appellate Court had wide powers to deal with the appeal as provided under Order 41 Rule 33 of the Code. He submitted that the cross-objections of the petitioners were duly filed and admitted. In such a situation the learned Appellate Court below was in breach of procedure in exercising inherent power to recall its earlier order setting aside the abatement and as a consequence holding that since the appeal had already been abated, cross-objections filed on behalf of the petitioners had become non-est and stood disposed of accordingly. More so since the opposite parties nos.1 series had not challenged such order setting aside the abatement. Mr. Tarakeswar Pal, learned Advocate appearing on behalf of the opposite parties nos.1 series submitted that the learned Appellate Court below had duly exercised inherent power and gave the correct finding. He submitted that it was the appellants who had filed the appeal. According to him it was irrelevant whether or not the petitioners were aggrieved or dissatisfied with the decree and therefore had filed cross-objections. He submitted that the very fact that the petitioners had filed their cross-objections in the appeal would go to show that the cross-objections were dependent upon the existence of the appeal itself. It was his submission that the appeal had abated and the subsequent order of setting aside such abatement was liable to be and duly recalled. He pointed out that the plaintiffs being the appellants had no manner of right, title or interest in the suit property. Their father had duly conveyed the same to his clients. In the circumstances, his clients could in no way be said to be the legal representatives of the plaintiffs/appellants. He sought dismissal of the revision application. As recorded above, it does appear that the order dated 5th May, 2003 by which the learned Appellate Court below set aside the abatement, was not challenged by the opposite parties nos.1 series. It was made in their presence and upon hearing them. He sought dismissal of the revision application. As recorded above, it does appear that the order dated 5th May, 2003 by which the learned Appellate Court below set aside the abatement, was not challenged by the opposite parties nos.1 series. It was made in their presence and upon hearing them. In those circumstances the only course open to the said opposite parties was to agitate the point of admission of the cross-objections at the time of hearing of the appeal, obviously after the abatement thereof had been set aside, as had been left open to be agitated by the said order. Subsequent thereto when both sets of defendants being the said opposite parties as well as the petitioners had got dismissed for default the appeal itself, it must be taken to be that the liberty to agitate the point of admission of the cross-objections was not exercised by the said opposite parties. As a consequence of the appeal being dismissed for default the provisions of Order 41 Rule 22(4) got attracted which provides, inter alia, that where in any case in which any respondent has under that rule filed a memorandum of objection, the original appeal is dismissed for default, the objections so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. In view of such specific provision applicable to the matter of procedure to be adopted in dealing with the cross-objections filed by the petitioners pursuant to the appeal having been dismissed for default by order no.29 dated 5th July, 2003, this court finds that the learned Appellate Court in making the impugned order was in breach of such prescribed procedure. For these reasons the impugned order cannot be sustained and the same is set aside. The learned Appellate Court below is directed to hear and dispose of the cross-objections upon giving such notice to the parties as the said court might think fit at its earliest convenience.