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Tripura High Court · body

2016 DIGILAW 93 (TRI)

Sadhana Saha v. Pranati Shingha Bist

2016-03-31

S.TALAPATRA

body2016
ORDER : This is an application under Order 1 Rule 10(2) read with Section 108 of the CPC for addition of the applicants as the appellant No. 1(d) and 1(e) as the legal heirs of Raiharan Saha as their names were not incorporated in the memorandum of appeal for inadvertence and dislocation of records. 2. The suit being Title Suit No. 67 of 1971 instituted by Capt. Quar Bahadur Shingh where one Rai Haran Saha was the principal defendant No.1, and that suit was allowed by the judgment and decree dated 29.05.1992. The defendant No.1 along with other defendants filed an appeal under Section 96 read with Order XLI Rule 11 of the CPC against the said judgment and decree dated 29.05.1992. During pendency of the said appeal being Title Appeal No. 31 of 1992 in the court of the District Judge, West Tripura, the legal heirs of Raiharan Saha apprised the court that he passed away and by the order dated 07.07.1999, his legal heirs namely Jyotsna Rani Saha(wife), Shri Anil Saha(son), Shri Nikhil Saha(son), Shri Ajit Saha(son) and Shri Abhijit Saha(son) were substituted as the appellants No. 6, 7, 8,9 and 10 respectively. 3. Mr. P. Chakraborty, learned counsel appearing for the applicants has now submitted that after death of Raiharan Saha, brother of the petitioner was impleaded in the said title appeal as the substituted appellant and the appeal was dismissed and one Sunil Chandra Saha preferred RSA No. 80 of 2007. By the order dated 02.02.2010 passed in CM Application No.41 of 2009 on death of said Sunil Chandra Saha, Smti Chinu Rani Saha(wife), Sri Subhasis Saha(son) and Smti Sonali Poddar(daughter) were substituted. Mr. P. Chakraborty, learned counsel has further submitted that after death of Raiharan Saha the applicants' names were not added or substituted in the appeal as well as in the Second Appeal. Unless their names are added in the cause title of RSA No.80 of 2007, they might lose their propriety right over the suit land. In this circumstances, this application for their addition has been preferred. 4. Unless their names are added in the cause title of RSA No.80 of 2007, they might lose their propriety right over the suit land. In this circumstances, this application for their addition has been preferred. 4. From the original respondents No. 2 and 3 one objection has been filed to resist such prayer for addition contending that the said application under Order I Rule 10(2) of the CPC is not maintainable as the RSA 80 of 2007 has been finally disposed of and there is no proceeding pending in the eye of law. Order I Rule 10(2) of the CPC provides that where a suit has been instituted the court may add at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as the plaintiff or the defendant or whose presence before the Court may be necessary in order to enable the court to effectually and completely to adjudicate upon and settle all the questions involved in the suit. When there is no such proceeding pending in the court, the court does not have any power to add someone. Hence this petition is not at all maintainable. 5. Mr. Bhattacharji, learned counsel appearing for those respondents has further submitted that Section 10(2) of the CPC does not have any manner of application in the circumstances. That apart Mr Bhattacharji, learned counsel has seriously criticised for this attempt to take ride on the court process. He has further pointed out that one Kshetra Mohan Saha was also the defendant in the suit, but legal heirs of Kshetra Mohan Saha had not been added in the Second Appeal as well. After scrutinising the records what has surfaced is most surprising. Sunil Chandra Saha was substituted in place of Raiharan Saha by the order dated 07.07.1999 as passed in Title Appeal No. 31 of 1992. It has also surfaced that on 07.07.1999 one application was filed by Sunil Chandra Saha, Smti. Sadhana Rani Saha and Sabitri Rani Saha contending that by executing a deed of will, Raiharan Saha bequeathed the suit property to those petitioners. It has also surfaced that on 07.07.1999 one application was filed by Sunil Chandra Saha, Smti. Sadhana Rani Saha and Sabitri Rani Saha contending that by executing a deed of will, Raiharan Saha bequeathed the suit property to those petitioners. On the same date, in the appeal the said petition was allowed. The order dated 07.07.1999 as extracted reads as under: “7.7.1999 Ld. Lawyer of the appellant by filing a petn. Submits that sole appellant Raiharan Saha died on 16.6.99 and prays for addition of the widow, sons and daughters of the deceased. Copy of the petn. has been supplied to the respdt. Respdt. side is absent. Heard. Considered. Prayer is allowed. Add the widow and sons and daughters of the deceased. To 10.9.1999 for hearing.” 6. In pursuance of that order, in the memorandum of appeal the names of those persons as stated above who were added as the appellants No. 6, 7, 8, 9 and 10 were added as the proforma respondents, not as the appellants. No exception was taken against the said order. Strangely, Sunil Chandra Saha was not shown even as party in the Title Appeal No. 31 of 1992. He alongwith others claimed his right by virtue of the will dated 09.09.1994 over the suit property and subsequently he filed the Second Appeal being RSA 80 of 2007, even the respondents did not point out that serious irregularity at the time of making their submission. The second appeal was decided on the substantial question of law as formulated, alongwith other second appeals, emerged from the same common judgment and decree. In view of the order dated 07.07.1999, there was irregularity, but Sunil Chandra Saha had substantive right to file the said second appeal as the testamentary successor. Now by filing this application these applicants have sought their addition in the proceeding when they were not incorporated as the party in the first appellate proceeding. 7. Confronted with the circumstances as indicated, Mr. Chakraborty, learned counsel appearing for the applicants has strenuously argued that as non-joinder might substantially diminish or take away the property right of the applicants, there would be prejudice to none, if they are added in the second appeal. 7. Confronted with the circumstances as indicated, Mr. Chakraborty, learned counsel appearing for the applicants has strenuously argued that as non-joinder might substantially diminish or take away the property right of the applicants, there would be prejudice to none, if they are added in the second appeal. To buttress his contention, he has relied on a decision of the apex court in State of Punjab vs. Darshan Singh reported in AIR 2003 SC 4179 where the apex court has observed as under: “Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the Tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and another : 1999 (3) SCC 500 and Jayalakshmi Coelho v. Oswald Joseph Coelho : 2001 (4) SCC 181 .” [Emphasis supplied] 8. Having regard to the submission and the records, this court is of the view that what has been observed in State of Punjab vs. Darshan Singh is that powers of the court under Section 152 of the CPC cannot be equated with the power of review nor can be said to be akin to review nor can it be said to clothe the Court concerned with power of revoking the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections as contemplated are for correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. It has also been further observed that the omission sought to be corrected if touches the merit of the case is beyond the scope of Section 152 as it is looked into for the first time, for which the proper remedy for the aggrieved party if at all is to file the review application, subject to limitations relevant for such review. It has been cautioned by the apex court that no court can, under the cover of the said Section, modify the terms of its original judgment, decree or order. 9. The provision of Section 152 of the CPC is structured on the maxim “actus curiae neminem gravabit” i.e an act of the court shall prejudice none. The said maxim is founded on justice and good conscience and it affords a safe and certain guide for the administration of the law. The same principle is not to be flexibly applied. 9. The provision of Section 152 of the CPC is structured on the maxim “actus curiae neminem gravabit” i.e an act of the court shall prejudice none. The said maxim is founded on justice and good conscience and it affords a safe and certain guide for the administration of the law. The same principle is not to be flexibly applied. It is only for the cases where unintentional omission or mistake has taken place and such mistake or omission is attributable to the court which may say something or omit to say something which intends to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. It has been categorically observed in State of Punjab vs. Darshan Singh as under: “The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.” [Emphasis supplied] 10. While appreciating the act of the parties this court is not oblivious of the principle of representation of the interest of persons, not impleaded by name in a judicial proceeding. A karta of a Joint Hindu Family has always been recognised as a representative of the other members for the Joint Hindu property, and so, he is treated as trustee. The explanation below Section 11 of the CPC holds the fulcrum of justice by providing as under: “Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right claimed in common for them-selves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons litigating.” [Emphasis supplied] 11. If the interest of the persons seeking impleadment as the legal or testamentary heirs of Raiharan Saha, since deceased, has been take care of in a bona fide manner, even though there was irregular representation by Sunil Chandra Saha since deceased, no prejudice can be caused by the judgment dated 27.05.2015 as delivered in RSA 80 of 2007. But this court cannot decide whether Sunil Saha or others as claimed, have been named in the will as the beneficiary of Raiharan Saha in respect of the suit land. That aspect did never fall for consideration. But this court cannot decide whether Sunil Saha or others as claimed, have been named in the will as the beneficiary of Raiharan Saha in respect of the suit land. That aspect did never fall for consideration. This court is constrained to observe that State of Punjab vs. Darshan Singh reported in AIR 2003 SC 4179 is not relevant in the context at all. Moreover, Mr. Bhattacharjee, learned counsel appearing for the respondents No. 2 and 3 in RSA 80 of 2007 has correctly projected that unless a proceeding is existent, this court is not seized of power to allow this application for impleadment. However, it is observed that by the judgment dated 27.05.2015 delivered in RSA No. 80 of 2007 alongwith the batch of other Second Appeals, the suit filed by the plaintiffs has been dismissed by giving certain observation as to the proprietory right in respect of the suit land. That right has been decided in respect of the original plaintiffs and the defendants. As such the legal heirs of the defendants are entitled to get benefit, if that might emanate from the said judgment and decree dated 27.05.2015. 12. In the result, this application for impleadment is dismissed. There shall be no order as to costs. Records be returned.