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2016 DIGILAW 605 (AP)

S. Fatima v. Noorul Hussain

2016-11-01

M.SEETHARAMA MURTI

body2016
ORDER : M. SEETHARAMA MURTI, J. 1. The 5th defendant in the suit-OS. No. 746 of 2012 filed these revision petitions under Article 227 of the Constitution of India assailing the common orders dated 16.10.2015 of the learned II Additional Chief Judge, City Civil Court, Hyderabad, passed in IA. Nos. 1690 and 1691 of 2015 in the aforementioned suit. 2. I have heard the submissions of Sri Ali Farooq, learned counsel for the revision petitioner/5th defendant and Sri N. Subbarao, learned counsel for the respondents 2, 3, 7, 8 and 9 i.e., the defendants 1, 2, 7, 8 and 9. The respondents 4 and 6 i.e., the defendants 3 and 6 are stated to be not necessary parties. The 1st respondent/plaintiff though served with notice did not appear and there is no representation for him. 2.1 The parties in this revision shall hereinafter be referred to as the petitioner/5th defendant, plaintiff/1st respondent and the contesting respondents/defendants. 3. I have perused the material record. 4. The facts necessary to be stated as a preface to this order, in brief, are as follows: "The plaintiff/1st respondent brought the suit against the defendants, who are his brothers and sisters, for partition of the plaint schedule properties, inter alia, stating that their mother had died and that on the death of the father, Khayam Hussain, the immovable properties acquired by him became 'Matruka Properties' and are hence, liable for partition as per Muslim Shariat applicable to the parties. The 5th defendant is resisting the suit by filing a written statement. Some of the other defendants were also resisting the suit. While the suit is pending, the plaintiff personally filed a memo dated 23.04.2015 before the trial Court stating to the effect that the subject matter of the suit was settled outside the Court and as such the plaintiff does not wish to continue the suit against the defendants and, therefore, the suit may be dismissed as not pressed. The counsel for the plaintiff also signed the said memo. The plaintiff filed the said memo before the trial Court along with a petition to advance the suit. The trial Court advanced the suit from 13.08.2015 to 24.04.2015 and dismissed the suit on that day, as not pressed, after taking into consideration the contents of the said memo. Aggrieved thereof, the 5th defendant filed two applications viz., IA. Nos. The plaintiff filed the said memo before the trial Court along with a petition to advance the suit. The trial Court advanced the suit from 13.08.2015 to 24.04.2015 and dismissed the suit on that day, as not pressed, after taking into consideration the contents of the said memo. Aggrieved thereof, the 5th defendant filed two applications viz., IA. Nos. 1690 and 1691 of 2015 requesting to restore the suit by setting aside the order dated 24.04.2015 passed in the suit and to permit her to transpose as 2nd plaintiff in the above suit and prosecute the suit. Even without inviting counters, if any, from the plaintiff and other defendants, the trial Court dismissed both the petitions by the common order which is impugned in these revisions. Hence the 5th defendant is before this Court." 5. The case and submissions of the 5th defendant, in brief, are as follows: "The plaintiff's suit for partition, which is being resisted by this defendant by filing a written statement, was dismissed by the trial Court as not pressed after taking into consideration the contents of the memo filed by the plaintiff requesting to dismiss the suit as not pressed on the alleged ground that the subject matter of the suit is settled out of Court. When a notice was served on the counsel for the 5th defendant on the said memo for withdrawal of the suit, her learned counsel made an endorsement 'received copy subject to filing objection and transpose petition on behalf of defendant No. 5'. Similarly, in the application filed for advancing the suit, which is filed along with the memo, the counsel for the 5th defendant endorsed 'received copy subject to filing counter and intimation of date of hearing'. The plaintiff as well as the other defendants failed to bring to the notice of the Court the said facts and the plaintiff had hurriedly withdrawn the suit depriving this defendant's rights. The plaintiff did so in collusion with the other defendants. The order permitting the plaintiff to withdraw the suit is not in accordance with law and therefore the said order is liable to be set aside and the suit is to be restored to file. In the detailed written statement filed by this defendant, the true facts are stated. The plaintiff did so in collusion with the other defendants. The order permitting the plaintiff to withdraw the suit is not in accordance with law and therefore the said order is liable to be set aside and the suit is to be restored to file. In the detailed written statement filed by this defendant, the true facts are stated. However, in collusion with the other defendants and with a mala fide intention, ulterior motives and to deprive the lawful rights of this defendant, the plaintiff withdrew the suit knowing fully well the rights of the parties as per Mohammedan law in the suit for partition. The 1st defendant in the suit also filed a suit for partition and separate possession only in respect of the property owned and possessed by the 5th defendant i.e., the 'D' schedule property and therefore the 5th defendant filed in the said suit, a petition in IA No. 1053 of 2013 under Section 10 read with Section 151 of the Code requesting to stay the said latter suit-OS. No. 511 of 2013." 6. Learned counsel for the 5th defendant would further contend as follows; "In a suit for partition, every party is a plaintiff. Therefore, the 5th defendant is also a plaintiff. The plaintiff had clandestinely and in collusion with the other defendants had withdrawn the suit. Despite the fact that the counsel for the 5th defendant made endorsements on the memo and the application for advancing the suit to the effect that the 5th defendant intends to file her objections and take steps for her transposition as a plaintiff, neither an opportunity was given to file objections to the memo filed by the plaintiff for withdrawal of the suit nor was an opportunity given to file counter in the application to advance the suit. Ignoring such endorsements, behind the back of the 5th defendant, the suit was advanced and the suit was dismissed as not pressed as per the request made in the memo of the plaintiff. Thus, principles of natural justice and law are violated. Valuable rights, which the law conferred on the 5th defendant and her right to have her transposed as a plaintiff and prosecute the suit were defeated. Thus, principles of natural justice and law are violated. Valuable rights, which the law conferred on the 5th defendant and her right to have her transposed as a plaintiff and prosecute the suit were defeated. Therefore, the orders of the trial court are illegal and unsustainable." 6.1 In support of his submissions he had placed reliance on the following decisions: (1) Ramji Gupta and another v. Gopi Krishan Agrawal (D) and others, AIR 2013 SC 3099 ; (2) Sneh Gupta v. Devi Sarup and others, (2009) 6 SCC 194 ; (3) Manohar Singh v. Sardar Bai, AIR 1987 Raj 177 ; and (4) Gowramma v. Nanjappa, AIR 2002 Karnataka 76. 6.2 Though the contesting respondents-defendants have not filed any counters resisting the applications of the 5th defendant filed before the trial Court, Sri N. Subba Rao, their learned counsel, would submit as under: "The two applications of the 5th defendant are not maintainable. The 5th defendant if she is aggrieved of orders of dismissal of the suit as not pressed/withdrawn, she ought to have filed an application for review but not an application under Section 151 of the Code for restoration of the suit. Further, she ought not to have filed two applications simultaneously; one for restoration of the suit and the other for transposition. She ought to have first filed her application for review. She ought to have filed the next application for transposition as plaintiff only after restoration of the suit on favourable consideration of her first application seeking for review. The applications filed by the 5th defendant, after the disposal of the suit, for restoration of the suit and her transposition as plaintiff are not maintainable. Therefore, the trial Court is justified in passing the impugned common order and in dismissing both the applications of the 5th defendant." 7. I have noted the submissions and I have given earnest consideration to the facts and the submissions. The suit is admittedly filed by the plaintiff for partition. The relationship of the parties is not in dispute. According to the plaintiff, the dispute is amicably settled with the defendants and, therefore, she had filed a memo, along with an application to advance the suit, voluntarily to withdraw the suit. Acting on that memo, the trial Court dismissed the suit as withdrawn/not pressed. The relationship of the parties is not in dispute. According to the plaintiff, the dispute is amicably settled with the defendants and, therefore, she had filed a memo, along with an application to advance the suit, voluntarily to withdraw the suit. Acting on that memo, the trial Court dismissed the suit as withdrawn/not pressed. Admittedly, though notices on the said memo and application to advance the suit are served on the 5th defendant and her learned counsel endorsed 'received copy subject to filing objection and transpose petition on behalf of defendant No. 5' and 'received copy subject to filing counter and intimation of date of hearing', no opportunity of hearing was given to the 5th defendant before the suit was dismissed as withdrawn at the request of the plaintiff. It is not also recorded that the counsel for the parties present had consented for recording the memo of the plaintiff and dismissing the suit as withdrawn. The legal proposition that in a suit for partition, every defendant is a plaintiff is not in dispute. Admittedly, the plaintiff did not file, into Court, with her memo a copy of the compromise petition, if any, entered into between the parties. She did not state the terms of the compromise in her memo filed for withdrawal of the suit. In the normal course of events, where a suit is withdrawn or abandoned by a plaintiff under Rule 1 of Order XXIII and the defendant applies under Rule 10 of Order I, the Court shall consider such application having due regard to the question whether the defendant who made the application for transposition has a substantial question to be decided as against any of the other defendants. In this regard, it is necessary to refer to Order XXIII Rule 1 and Rule 1A, which read as under: "1. Withdrawal of suit or abandonment of part of claim-- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 1A. 1A. When transposition of defendants as plaintiffs may be permitted-- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants." 8. The positions of the plaintiff and defendant are interchangeable in a suit for partition. In a suit for partition, as rightly contended, when once the suit is dismissed for default, the right of the defendant to apply for transposition certainly comes to an end. But, the factual matrix of the case on hand is different. In a suit for partition, where even every defendant is a plaintiff, where a suit is sought to be withdrawn or abandoned by the plaintiff, in the well considered view of this Court, the defendant/s must be given an opportunity of being heard before the suit is permitted to be withdrawn or abandoned by the plaintiff so that the defendants, who are interested, can avail the opportunity of filing an application for transposition as a plaintiff and for continuing and prosecuting the suit against the other defendants. Though the learned counsel appearing for the contesting respondents contended that the plaintiff has withdrawn the suit only because of the compromise that was entered into between the parties, the compromise is not reported to the Court. Even a copy of the compromise is not filed before the Court below. Unless a compromise is recorded in accordance with the procedure established by law and the suit is disposed of/decreed in terms of the compromise, the compromise entered into outside the Court will not acquire legal sanctity. Further, a compromise even if reported to the Court, unless it is proved to the satisfaction of the Court that the suit has been adjusted by any lawful agreement or terms in writing and signed by the parties, the Court will not record a compromise and pass a decree in accordance therewith. Further, a compromise even if reported to the Court, unless it is proved to the satisfaction of the Court that the suit has been adjusted by any lawful agreement or terms in writing and signed by the parties, the Court will not record a compromise and pass a decree in accordance therewith. Even in a case where one of the parties to the compromise denies the adjustment or compromise after having signed the memorandum of compromise, the party, who is interested in recording the compromise and obtaining a decree in accordance therewith has to approach the Court and make a request to decide the fact as to whether a compromise was arrived at or not between the parties. Unless a compromise is recorded and the suit is disposed of in terms of the compromise or in a given case where a compromise disputed is produced before the Court and such dispute is decided by the Court and the compromise is accepted and recorded by the Court, the compromise entered into outside the Court by the parties to a suit will not acquire legal sanctity. Therefore, in the well considered view of this Court, unless the compromise is reported to the Court and a request is made to the Court under Order 23 Rule 3 for recording compromise and passing a decree in terms therewith, the plaintiff cannot be heard to say that there is a compromise as the compromise, which is recognizable by the Court in a pending suit must always be made in open Court and the order also must be made under Order XXIII Rule 1 and in conformity with the principles in the provisions of the law enshrined in the Code. 9. 9. When the plaintiff filed a memo for permission to withdraw her suit for partition, had the Court given an opportunity to the 5th defendant as sought for to file objections and make an application for transposition as a plaintiff in the suit in terms of Rule 1A of Order XXIII, the 5th defendant in the suit could have applied for being transposed as a plaintiff in terms of Order I Rule 10 of the Code of Civil Procedure and in that event the Court would have been bound to pass an order having due regard to the question as to whether she had a substantial question to be decided as against any of the other defendants. [See Sneh Gupta case (2009) 6 SCC 194 (supra)]. Therefore, the order permitting the withdrawal of the suit on a memo filed by the plaintiff without giving an opportunity to the 5th defendant despite the endorsement made by her learned counsel and without providing an opportunity of hearing to her which caused prejudice to the rights of the 5th defendant and resulted in injustice is unsustainable and is liable to be set aside as the 5th defendant intends to transpose herself as a plaintiff and prosecute the suit. The first contention that two applications ought not to have been filed simultaneously is misconceived as there is no legal bar for filing two applications at one time. Further, the trial Court is having the power and liberty to take up and decide the two applications one after the other, if such course is warranted under law or if it desired so to do. The next contention that an application under Section 151 is not maintainable and that an application for review ought to have been filed is untenable as the Court can correct its mistake on its own accord by applying the correct provision of law or suo motu as the law is well settled that no party shall be made to suffer for the mistake of the Court, which resulted in grave injustice. In the case on hand for the failure of the trial Court in following the law and observing principles of natural justice gross failure of justice and grave injustice have occasioned. 10. It is apposite to note that the present revision is filed under Article 227 of the Constitution of India. In the case on hand for the failure of the trial Court in following the law and observing principles of natural justice gross failure of justice and grave injustice have occasioned. 10. It is apposite to note that the present revision is filed under Article 227 of the Constitution of India. Any order of the Court below, which is passed ignoring the mandate of law and in violation of the principles of natural justice, is liable to be set aside while exercising the jurisdiction under Article 227 of the constitution of India. Keeping in view the said fact that this revision petition is filed under the said Article of the Constitution of India, whereunder this Court is having supervisory jurisdiction, it is necessary to refer to the relevant precedential guidance in Surya Dev Rai v. Ram Chander Rai and others AIR 2003 SC 3044 which is as follows: "(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) .... (3) .... (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the at, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the at, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." When that error is manifest and apparent on the face of the proceedings, this Court is obligated to issue a writ of certiorari exercising the supervisory jurisdiction in a case of this nature. 11. Further, the 5th defendant in the partition suit, who is having the same status as that of a plaintiff, has an unqualified right to have her transposed as plaintiff on the plaintiff intending not to prosecute and withdraw the suit. Since such a right vested in the 5th defendant under facts and in law, the trial Court ought not to have permitted the suit for partition to be withdrawn more particularly even without notice and opportunity of hearing to the defendants. 12. Viewed thus, this Court finds that the order of dismissal of the suit as withdrawn on the memo of the plaintiff is liable to be set aside. In the case on hand, the 5th defendant is not compelling the plaintiff to prosecute the suit, but, the 5th defendant's request is only to set aside the order of dismissal as withdrawn and to permit her to apply to be transposed as a plaintiff under Rule 10 of Order 1 of the Code. 13. In the result, the Civil Revision Petitions are allowed and the common orders impugned in these revisions are set aside and as corollary, the order dated 24.04.2015 dismissing the suit as withdrawn is set aside and the suit OS. 13. In the result, the Civil Revision Petitions are allowed and the common orders impugned in these revisions are set aside and as corollary, the order dated 24.04.2015 dismissing the suit as withdrawn is set aside and the suit OS. No. 746 of 2012 on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad, is restored to file and the application of the 5th defendant for transposition as plaintiff is remitted to the said Court for hearing and disposal in strict accordance with principles established by law after giving an opportunity to the plaintiff and other defendants to the suit to file their counters, if any. There shall be no order as to costs. Miscellaneous petitions, if any, pending in these revisions shall stand closed.