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2017 DIGILAW 1122 (ORI)

NABA KUMAR SHAW v. SISIR KUMAR PAL

2017-10-09

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. - This Civil Miscellaneous Petition involves the impugned order dated 11.4.2017 passed by the learned Civil Judge, (Senior Division), First Court, Cuttack vide Annexure-3 involving Civil Suit No. 324 of 2016, an outcome involving consideration of a petition under Order 12, Rule 6 of the Code of Civil Procedure filed by the defendant. 2. Short background involves in the case is that the opposite party as plaintiff filed suit seeking partition of the suit schedule land with a case that the plaintiff as well as the defendant acquired the suit land jointly through a common sale deed and after purchase both of them have mutated their names before the Revenue Authority following which mutation record-of-right of Khata No. 861 was prepared in their names involving an area of Ac. 0.092 decimals. Plaintiff further pleaded that after purchase of the land, the plaintiff constructed his pucca residential house on its western side and residing therein whereas the defendant is in possession on the eastern side stated to have been lying vacant. Plaintiff has also a case that there is a common passage left on the southern portion of the suit land which runs in east-west direction having six feet in breadth. It is only when dissension arose among the parties, the plaintiff was constrained to seek partition on mutual understanding but on refusal by the defendant, the plaintiff came up with the suit. The defendant after appearance on admission of the fact that both the plaintiff and defendant have equal share over the suit land while remaining silent on the possession and construction part, pleaded in the plaint at the same time presented his written statement followed by a petition under Order 12, Rule 6 of the Code of Civil Procedure. The defendant after appearance on admission of the fact that both the plaintiff and defendant have equal share over the suit land while remaining silent on the possession and construction part, pleaded in the plaint at the same time presented his written statement followed by a petition under Order 12, Rule 6 of the Code of Civil Procedure. In the first round of litigation when the application under Order 12, Rule 6 of the Code of Civil Procedure at the instance of the defendant stood rejected by order dated 20.9.2016 by the trial court, the petitioner-defendant preferred C.R.P.No. 29 of 2016 before this Court and on adjudication of the C.R.P. No. 29 of 2016 this Court directed as follows: "From the reading of the prayer made in the plaint and the admission of the defendant in paragraph No.3 of the written statement, this Court finds, the admission of the defendant remains unambiguous and there was no difficulty in allowing the application under Order- 12 Rule 6 of the C.P.C. Under the circumstances, this Court finds the findings of the trial court in the impugned order rejecting the application under Order 12, Rule 6 of C.P.C. is not sustainable in the eye of law and consequently while interfering in the impugned order, this Court sets aside the same and remits the matter back to the Civil Judge (Sr. Division), 1st Court, Cuttack for re-adjudication of the application under Order 12, Rule 6 of the C.P.C. afresh." 3. On remand of the matter by this Court, the petition under Order 12, Rule 6 of the code of Civil Procedure was taken up afresh and disposed of vide the impugned order thereby disposing the suit with a preliminary decree against the defendant but without cost further declaring the plaintiff and defendant have got ? share over the suit schedule property. The parties were also directed to effect partition amicably amongst them within a period of two months hence, failing which they or either of them may approach the court to get their lands separately allotted to them in accordance with the defined shares. Being aggrieved by the above order, defendant preferred this Civil Miscellaneous Petition. 4. The parties were also directed to effect partition amicably amongst them within a period of two months hence, failing which they or either of them may approach the court to get their lands separately allotted to them in accordance with the defined shares. Being aggrieved by the above order, defendant preferred this Civil Miscellaneous Petition. 4. In assailing the impugned order challenging the particular portion of the impugned order directing while effecting partition, the Commissioner was directed to give respect to the possession of the parties to the suit land, Sri B. Baug, learned counsel appearing for the petitioner contended that while passing such decree, the trial court should have taken into consideration that possession of one party over the suit land ensures to the benefit of other cosharer/joint purchaser and the trial court has also further to deal with the stand of the defendant that by the time of purchase of the disputed land, there existed a double storied building and there has been clandestine suppression of this aspect by the plaintiff in the plaint. It is also contended that in the event the trial court's direction is accepted, there may not be partition of the whole property equally amongst the parties. It is under the above circumstances, Sri Baug, learned counsel contended that while decreeing the suit, the trial court should not have given any a attachment on the possession of the party over the suit land. Taking recourse to restrictions under Section 96(3) of the Code of Civil Procedure, Sri Baug further contended that there being no scope for appeal against the impugned decree, the petitioner is constrained to take resort to Article 227 of the Constitution of India involving the above Civil Miscellaneous Petition. 5. To its opposition, Sri A.B. Lenka, learned counsel appearing for the plaintiff-opposite party at the threshold challenged the maintainability of the Civil Miscellaneous Petition being an application under Article 227 of the Constitution of India under the pretext of availability of a clear statutory appeal remedy against the impugned order. 5. To its opposition, Sri A.B. Lenka, learned counsel appearing for the plaintiff-opposite party at the threshold challenged the maintainability of the Civil Miscellaneous Petition being an application under Article 227 of the Constitution of India under the pretext of availability of a clear statutory appeal remedy against the impugned order. Referring to the provisions under Order 12, Rule 6 of the Code of Civil Procedure, Sri Lenka, learned counsel further contended that for the nature of the petition and for involvement of a decree, no Civil Miscellaneous petition under Article 227 of the Constitution of India is maintainable and thus, prayed for rejection of the Civil Miscellaneous Petition on the ground of maintainability. Considering the involvement of a challenge to the maintainability of the Civil Miscellaneous Petition, this Court, therefore, proceeds to decide the maintainability aspect at the first instance. Provision under Order 12, Rule 6 of the Code of Civil Procedure reads as follows: 6. Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. Provision under Section 96 (3) of the Code of Civil Procedure dealing with appeals from original decree restricts appeal from a decree passed by the court with the consent of parties. Now a bare reading of the provision under Order 12, Rule 6 of the Code of Civil Procedure, it appears the word "at any stage" used in the aforesaid rule points out either on the application of any party or on its own motion and without waiting for determination of any other question between the parties, a court can give such judgment as it may think fit having regard to the admission of facts. Further, since the judgment under this provision is followed by a decree bearing the date on which the judgment is pronounced, the judgment involving an application under Order 12, Rule 6 of the Code of Civil Procedure amounts to decree. The words "decree" and "judgment" have been well defined under Sections 2 (2) and 2 (9) of the Code of Civil Procedure. Looking to the nature of the provision under Order 12, Rule 6 of the Code of Civil Procedure and the decree being dependant on the context of the petition under Order 12, Rule 6 of the Code of Civil Procedure, though there is no objection to such decree by the plaintiff yet, such decree under no circumstance can be held to be a compromise decree so as to be excluded from the purview of appeal following the provisions at Section 96 (3) of the Code of Civil Procedure. It be made here clear that Section 96(3) only excludes the compromise decree from the purview of appeal. 6. For the observations made hereinabove, particularly, holding that the judgment and decree involving an application under Order 12, Rule 6 of the Code of Civil Procedure cannot be treated as a compromise decree, this Court observes the petitioner has a clear remedy of appeal for adjudication of the point raised herein and such adjudication is not available to be considered by this Court in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. In deciding a case as to if a petition under Article 227 of the Constitution of India is maintainable for availability of statutory appeal remedy, the Hon'ble Apex Court in the case of Miss Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, AIR 1976 SC 2446 , in paragraph-6 of the said judgment held as follows: "6.It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Article 227 of the Constitution and Vaidya J., entertained the Special Civil Application and granted relief to the respondent casting to the winds the well-settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Article 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realized that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. That apart, it is interesting to note that the order passed by the learned Judge was not an interlocutory order but a final order disposing of the special civil application and by that order the learned Judge did not set aside the decree passed by the City Civil Court, but merely directed stay of its execution pending the disposal of the Small Cause Court suit. It defies one's comprehension as to how such an order could be made by the learned Judge. It is also difficult to see how the learned Judge could give a direction that the decision of the City Civil Court on the issue whether the respondent was a paying guest would not bind the parties in the adjudication of the Small Cause Court suit. It is also difficult to see how the learned Judge could give a direction that the decision of the City Civil Court on the issue whether the respondent was a paying guest would not bind the parties in the adjudication of the Small Cause Court suit. The question whether the parties in the Small Cause Court suit would be bound by the decision of the City Civil Court would be a question which would arise for determination in the Small Cause Court suit and the Small Cause Court would have to determine it in deciding the suit before it. If the decision of the Small Cause Court is erroneous, the aggrieved party would have a right to file an appeal against it and the appellate court would then consider this question and adjudicate upon it. But we fail to understand how the learned Judge could, without any decision having been given by the Small Cause Court and such decision having been brought up before him in appeal or revision, enter upon a consideration of this question and pronounce upon it. The order passed by the learned Judge was clearly erroneous and it must be quashed and set aside and the Special Civil Application must be dismissed. We may make it clear that whenever the Small Cause Court hears the suit it will not take into account any observations made by the learned Judge in the impugned judgment in regard to the question whether the decision of the Civil Court is binding or not and it will proceed to decide the suit before it in the light of what it considers to be the correct legal position." 7. For the observations made by this Court herein above and for the finding that there appears a clear statutory appeal remedy available to the petitioner, no order involving Order 12, Rule 6 of the code of Civil Procedure can be agitated by way of an application under Article 227 of the Constitution of India. 8. Accordingly, this Court while holding that the present Civil Miscellaneous Petition is wholly not maintainable, but, considering that the petitioner has a statutory appeal remedy, for the petitioner's moving this Court under bonafide impression, this Court directs the petitioner to take resort to the remedy of statutory appeal agitating the issue raised in this Civil Miscellaneous petition. 9. 8. Accordingly, this Court while holding that the present Civil Miscellaneous Petition is wholly not maintainable, but, considering that the petitioner has a statutory appeal remedy, for the petitioner's moving this Court under bonafide impression, this Court directs the petitioner to take resort to the remedy of statutory appeal agitating the issue raised in this Civil Miscellaneous petition. 9. In the result, the Civil Miscellaneous Petition stands dismissed, but, however, with the permission to the petitioner to approach the appellate forum as against the impugned order and if any such appeal is filed within two weeks hence, the same shall be disposed of in accordance with law. No order as to cost. Final Result : Dismissed