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2017 DIGILAW 1168 (GAU)

Amitabha Ghosh v. Kasturi Lahiri

2017-08-25

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. N Dhar, learned counsel for the petitioners. Also heard Mr. MK Choudhury, learned senior counsel assisted by Mr. A Barkataki, learned counsel for the respondent. 2. In this revision petition, order dated 14.06.2017 passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati in Misc. (J) Case No. 830/2016 arising out of Title Suit No. 368/2016 is challenged. N Dhar, learned counsel for the petitioners. Also heard Mr. MK Choudhury, learned senior counsel assisted by Mr. A Barkataki, learned counsel for the respondent. 2. In this revision petition, order dated 14.06.2017 passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati in Misc. (J) Case No. 830/2016 arising out of Title Suit No. 368/2016 is challenged. The sole plaintiff/ respondent filed the Title Suit No. 368/2016 against the defendants/ petitioners for the following reliefs:- (1) Declaring and determining the rights, title and interest of the plaintiff and the defendants No. 1, 2 and 3 in respect of the share of each of the plaintiff and the defendants of the Schedule-A to D properties in to four equal shares by metes and bounds; (2) Partition of the Schedule-A to D properties by metes and bounds as provided under Section 54 and Order XX Rule 18 of the Code of Civil Procedure, 1908 and give separate and specific possession to the plaintiff of her share both in the land and houses standing thereon and the businesses; (3) Declare that the Schedule – A property is a part of the composite property exclusively owned by Late Benoy Kumar Ghosh and that the mutation thereof in favour of the defendants No. 1 and 2 is non est, not valid and not binding and needs to be subject to ¼th partition between the contesting parties; (4) Declare that the reconstitution of the partnership firm, R.L. Ghosh and Sons property is non est, not valid and not binding and needs to be the subject to ¼th partition between the contesting parties; (5) Declare that the unregistered partnership businesses are in fact proprietary concerns been reconstituted merely for taxation purposes and accordingly permit partition of the entire 100% of the said businesses amongst the deceased father’s legal heirs;(6) Declare that the Probate dated 27.05.1994 in favour of the defendant No. 1 will have no affect or bearing on the right of the plaintiff over the Schedule – C property; (7) Pass a decree of rendition of accounts with direction to the defendant No. 1 to produce and submit in the Court the accounts, corresponding tax returns and details of money so collected and retained by the defendant No. 1 by way of income, profit or otherwise from the income of the plaint schedule properties and share of profit out of the Partnership Firms and for realisation of the amount of money as might be determined upon rendition of accounts in favour of the plaintiff; (8) Pass a decree for appointment of a receiver of the plaint schedule properties; (9) Pass a decree for appointment of an expert person with sufficient accounting knowledge, such as a Chartered Accountant to inspect the accounts and use his knowledge and expertise to determine the details of money collected and retained by defendant No. 1 and undertake the formal valuation of the businesses; (10) Grant a permanent injunction to restrain the defendant No. 1 from alienating the plaint schedule properties and to restrain from changing the nature and character of the plaint schedule properties in any manner whatsoever before partition, as the suit properties are not yet partitioned; (11) Permanent injunction restraining the defendants from operating and managing or reconstituting the purported unregistered partnership businesses; (12) Temporary injunction in terms of the prayer for permanent injunction; (13) Mesne Profit of Rs. 37,31,359/- (Rupees Thirty seven lakhs, thirty one thousand three hundred and fifty nine) only from the date of demise of Late Benoy Kumar Ghosh till July 2016; (14) Grant future Mesne Profit at the same rate as claimed above during the pendency of the suit; (15) Grant of preliminary decree for partition and mesne profits; (16) Appoint Local Commissioner (s) for suggesting the ways and means of valuing the plaint schedule properties and effecting partition between the parties; (17) Pass a final decree for partition and separate possession of the plaint schedule properties; (18) Appointment of Receiver; (19) Award costs of the suit to the plaintiff; (20) Pass any other proper and further order(s) which this Hon’ble Court deems fit in the circumstances of the present case in the interest of justice and equity. The parties to the suit are the family members of the predecessor-in-interest, Late Benoy Kumar Ghosh. The suit property includes various properties situated within the district of Kamrup (M), Darrang and Kolkata. 3. The defendants/ petitioners entered appearance and filed their written statement raising various pleas including lack of jurisdiction of the trial court, misjoinder of causes of action in addition to the objection with respect to the point of limitation. The suit property includes properties of partnership firms etc. The present petitioners filed an application under Order XIV Rule 1 and 2 of the Code of Civil Procedure with the following reliefs:- “Under the facts and circumstances stated above your honour may graciously be pleased to frame a preliminary issue relating to the maintainability of the above suit before this Hon’ble Court and so also the jurisdiction of this Hon’ble court to try the above suit filed by the plaintiff/ opposite party before this Hon’ble court and to deal with the above suit in accordance with the decision in that preliminary issue in accordance with law and/or pass such other or further orders as your honour may deem fit and proper under the facts and circumstances of the case in the interest of justice. AND Pending determination of the preliminary issue in the above suit by this Hon’ble court, further proceeding of the above suit before this Hon’ble court may kindly be stayed. And for this act of 4. The contents in the said application were mainly with respect to lack of territorial jurisdiction of the trial court and multifarious-ness of causes of action. AND Pending determination of the preliminary issue in the above suit by this Hon’ble court, further proceeding of the above suit before this Hon’ble court may kindly be stayed. And for this act of 4. The contents in the said application were mainly with respect to lack of territorial jurisdiction of the trial court and multifarious-ness of causes of action. The plaintiff/ respondent filed the written objection raising that the prayer of the defendants/ petitioners cannot be entertained inasmuch as the same does not contain pure question of law rather, the same contains both law and facts and as such, the same cannot be decided by framing a preliminary issue. The learned trial court vide the impugned order dated 14.06.2017 disposed of the said application which was registered as Misc. (J) Case No. 830/2016. While disposing of the said application, the learned court below came to the finding that the suit of the plaintiff/ respondent is for partition, declaration of shares and injunction. It was also observed that the main contention of the defendants/ petitioners is on the point of territorial jurisdiction as the Schedule B, C and D properties are situated beyond the jurisdiction of the trial court. The trial court in order to decide the contention of the defendants/ petitioners took shelter of the provisions of Section 16 and 17 of the CPC and came to a finding that suit for partition in respect of immovable properties situate within the jurisdiction of the different courts can be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated. The learned trial court also taking shelter under Section 17 of the CPC came to the finding that where immovable property situated within the jurisdiction of different Courts, a suit can be instituted in any Court within the local limits of whose jurisdiction any one’s property is situated. With respect to the properties of partnership firms and the property covered by Probate certificate dated 27.05.1994, the court below came to the finding that these matters are issues of facts and as such, the court below decided to hear the objection raised after taking evidence. With respect to the properties of partnership firms and the property covered by Probate certificate dated 27.05.1994, the court below came to the finding that these matters are issues of facts and as such, the court below decided to hear the objection raised after taking evidence. The court finally held that the defendants/ petitioners failed to show with respect to the ouster of the jurisdiction of the said court below by any statute and the ultimate finding of the court below is that the suit or any part thereof cannot be disposed of as a pure question of law. The said order is challenged in this revision application. 5. Mr. Dhar submits that as apparent from the plaint, there are 20 (twenty) numbers of reliefs sought for by the plaintiff/ respondent and pointing to the schedules of the properties mentioned in the plaint, Mr. Dhar submits that all the properties are not within the territorial jurisdiction of the trial court. Rather, the same are scattered under the jurisdiction of various courts within the district of Darrang, Kamrup (M) and in the State of West Bengal. It is submitted that as the plaintiff has sought for relief of permanent injunction, in such a situation, the trial court has no jurisdiction for granting the relief of permanent injunction inasmuch as the suit properties are not situated within the territorial jurisdiction of the court below. Further it is submitted that the plaintiff/ respondent has sought for a declaration that the order of probate dated 27.05.1994 in favour of the present petitioner No. 1 shall have no affect or bearing over the right of the plaintiff over the Schedule C property. The Schedule C property is situated in the Darrang district under the court of District Judge, Darrang and the trial court cannot nullify or give a declaration against the order of probate passed by the court of District Judge at Darrang inasmuch as the said court is a higher court than the trial court and the trial court has got no jurisdiction to annul the order passed by the District Judge, Darrang. It is also submitted that the plaintiff/ respondent had included some of the properties which are under the partnership firms and as submitted by Mr. Dhar, the said firms are not registered as required under the law. It is also submitted that the plaintiff/ respondent had included some of the properties which are under the partnership firms and as submitted by Mr. Dhar, the said firms are not registered as required under the law. Accordingly, under Section 69 of the Indian Partnership Act, 1932, the said relief is not entitled to by the plaintiff/ respondent so far the properties of the partnership firm/ firms are concerned. Mr. Dhar further submits that the court ought to have considered the point of multifarious-ness of the causes of action in the suit which is a composite one. Referring to the provisions under Order II Rules 3, 4 and 6 of the CPC, it is submitted that on a plain reading of the plaint it is apparent that the facts leading to accrual of the cause of action to the various reliefs sought for are different and the same are in respect of the acts and deeds of the defendants/ petitioners with regard to the property situated beyond the territorial jurisdiction of the court below. As the accrual of causes of action for filing the suit, so far the plaintiff/ respondent is concerned, in places other than the territorial jurisdiction of the learned court below, a duty was cast upon the court below to order separate trials by invoking the jurisdiction under Order II Rule 6 of the CPC. Finally it is submitted that the court below never discussed the issues so raised before it and rejected the petition in limine. The court below failed to apply its jurisdiction within the ambit and scope of the Order XIV Rule 2 of the CPC for framing a preliminary issue. Thus, Mr. Dhar submits that the impugned order is liable to be set aside. 6. Mr. Choudhury, learned senior counsel, submits that there is no wrong in applying the jurisdiction of the court below. The points raised in the petition are issues of facts and not even a single point, so raised, falls within the category of pure question of law. Citing some of the instances like bar under Section 69 of the Partnership Act, 1932, declaration with regard to the order of the probate, joinder of various causes of action etc. are all issues of facts. Evidence is to be led and then only the court below could give a finding on the basis of the evidence and the pleadings. Citing some of the instances like bar under Section 69 of the Partnership Act, 1932, declaration with regard to the order of the probate, joinder of various causes of action etc. are all issues of facts. Evidence is to be led and then only the court below could give a finding on the basis of the evidence and the pleadings. It is for the court to grant a relief, if the same is found competent for the court below in all respect including the territorial jurisdiction of the said court below. Regarding non issue of order, directing the plaintiff/ respondent to go for separate trial with respect to separate properties, the same is within the discretion of the trial court. If the court below finds that it has no jurisdiction in granting the relief, it is up to the said court below. The court below had heard the argument of both the parties wherein the points of multifarious-ness of causes of action was raised and the court finds that the same is a competent one to try the issues and accordingly, no such order was passed to that effect. The court cannot be compelled to exercise the jurisdiction under Order II Rule 6 of the CPC. Thus, Mr. Choudhury submits that the impugned order requires no interference by this court. 7. Considered the submissions of both the learned counsels. Perused the applications and objections of the parties to this petition and also perused the impugned order. Order XIV of the CPC prescribes settlement of issues and determination of suit on issues of law or on issues agreed upon. Order XIV Rule 1 of the CPC stipulates that issues are of two kinds, namely, issues of fact and issues of law. The said provision also stipulates that before framing of issues, the Court ought to consider the contents of both the plaint and the written statement. Order XIV Rule 2(1) of the CPC gives the option to the court below to decide a suit on a preliminary issue which shall, subject to the provisions under sub-rule (2) or pronounce judgment on all issues. Order XIV Rule 2(1) of the CPC gives the option to the court below to decide a suit on a preliminary issue which shall, subject to the provisions under sub-rule (2) or pronounce judgment on all issues. The sub-rule (2) of Order XIV Rule 2 of the CPC prescribes that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. 8. A plain reading of the petition under Order XIV Rule 1 and 2 of the CPC filed by the petitioners, refers to the discussions referred hereinabove and the prayer portion shows to frame a preliminary issue regarding the maintainability of the above suit and with respect to the jurisdiction of the court. The court below mainly discussed the provisions in regard to the jurisdiction as prescribed under Sections 16 and 17 of the CPC. The court came to the conclusion that there are no issue relating to the question of law which can be taken up as a preliminary issue within the ambit and scope of Order XIV Rule 2(2) of the CPC. Mr. Dhar submits that the court failed to give its finding with regard to the multifarious-ness of causes of action inasmuch as the reliefs sought for by the plaintiff/ respondent, goes to show that the suit is a composite one and right to sue had accrued on various causes of action. The court ought to have given its finding on the said point in issue raised before the court. It is submitted by Mr. Dhar that the court ought to have entered into the said issue by going through the plaint. This submission cannot be accepted by this court inasmuch as the prayer sought for by the petitioners was for invoking the jurisdiction under XIV Rule 2(2) of the CPC. 9. It is submitted by Mr. Dhar that the court ought to have entered into the said issue by going through the plaint. This submission cannot be accepted by this court inasmuch as the prayer sought for by the petitioners was for invoking the jurisdiction under XIV Rule 2(2) of the CPC. 9. As already referred hereinabove that the court has a duty to frame the issues after reading the plaint and the written statement, the court has considered the pleadings of the parties and accordingly came to its finding that the matters involved in the said application are issues of facts. In the opinion of this court the finding arrived at by the court below in an application seeking for framing a preliminary issue has rightly rejected the said prayer after coming to the conclusion that the issues raised before the court are issues of facts. Regarding the multifarious-ness of the causes of action and rejection of a plaint for that ground, the petitioners can file any other application for rejection of the plaint as prescribed under VII Rule 11 of the CPC and for return of the plaint as prescribed under VII Rule 10 of the CPC. The said applications can be filed at any stage of the suit. However, for a decision on the issue of mis-joinder of causes of action, the same cannot be termed to be a pure question of law inasmuch it requires evidence to decide the issues. Accordingly, this revision petition is dismissed. However, the petitioners are at liberty to file any other petition either for rejection of the plaint or for return of the plaint, if so advised. 10. Stay order, if any, passed earlier shall stand vacated.