Calcutta High Court
G.A.No.3872 Of 2015 vs Ghanshyam Sarda & Ors on 29 November, 2016
ORDER SHEET
IN THE HIGH COUT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
In the matter of:
G.A.No.3872 of 2015
With
APOT 585 of 2015
C.S.NO.269 of 2009
INSING REALTORS PVT. LTD. & ANR.
VS.
GHANSHYAM SARDA & ORS.
AND
G.A.No.76 of 2016
With
APOT 11 of 2016
C.S.NO.269 of 2009
BELIEVE BUILDERS PVT. LTD.
VS.
GHANSHYAM SARDA & ORS.
AND
G.A.No.1436 of 2016
With
APOT 585 of 2015
C.S.NO.269 of 2009
INSING REALTORS PVT. LTD. & ANR.
VS.
GHANSHYAM SARDA & ORS.
AND
G.A.No.1438 of 2016
With
APOT 11 of 2016
C.S.NO.269 of 2009
BELIEVE BUILDERS PVT. LTD.
VS.
GHANSHYAM SARDA & ORS.
AND
G.A.No.1448 of 2016
With
2
APOT 585 of 2015
C.S.NO.269 of 2009
INSING REALTORS PVT. LTD. & ANR.
VS.
GHANSHYAM SARDA & ORS.
AND
G.A.No.1449 of 2016
With
APOT 11 of 2016
C.S.NO.269 of 2009
BELIEVE BUILDERS PVT. LTD.
VS.
GHANSHYAM SARDA & ORS.
BEFORE:
The Hon'ble CHIEF JUSTICE GIRISH CHANDRA GUPTA
The Hon'ble JUSTICE ARINDAM SINHA
Date : 29th November, 2016.
Appearance :
Mr. Pradeep Ghosh, Sr. Adv. with
Mr. Chayan Gupta, Adv. and
Mr.Abhijit Sarkar, Adv.
Mr. S. S. Banerjee, Adv.
Mr.S.N.Mitra,Sr.Advocate
Mr.Aditya Kanodia,Advocate
Mr.S.Sarkar,Advocate
Mr.Aniruddha Agarwal,Advocate
Mrs.Manju Agarwal,Advocate
Mr. B. Menot, Advocate
Mr. Sirsanya Banerjee, Adv. with
Mr. Abhishek Halder, Adv.
Mr. P. K. Dutta, Sr. Adv. with
Mr. B.K. Jain, Adv. and Mr. A. Jain, Adv.
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The Court : There are two appeals being APOT No. 585 of 2015 and APOT
No.11 of 2016, arising out of an order dated 8th October, 2015 passed by the learned
Trial Court permitting the plaintiff to withdraw the suit on the ground that there were
certain formal defects and further permitting the plaintiff to file a fresh suit on the basis
of the selfsame cause of action. Rest of the matters are applications connected with
those two appeals.
Mr. Ghosh, learned senior advocate, appeared on behalf of the appellant in
APOT No.585 of 2015 and Mr. Banerjee, learned addvocate, appeared on behalf of the
appellant in APOT No.11 of 2016. There are also applications seeking dismissal of the
appeals on the ground that the appeals are not maintainable. All the matters have been
taken up together for the simple reason that the question for consideration is whether
the impugned order permitting the plaintiff to withdraw the suit with liberty to file a
fresh suit on the basis of the selfsame cause of action is bad and illegal.
Mr. Ghosh has relied upon a judgement of this Court in the case Rajendra
Lal Sur vs Atal Bihari Sur & Ors., reported in AIR 1917 Calcutta 633, wherein the Division
Bench was considering whether an order, passed under Order 23 Rule 1 of the Code of
Civil Procedure permitting the plaintiff to withdraw the suit with liberty to apply afresh
without notice to the defendant, was a legally sustainable order. The Division Bench
answered the question in the negative solely on the ground of violation of the principles
of natural justice. To be precise the Division Bench held as follows:
"It is an elementary rule of universal application and founded upon the
plainest principles of justice that a judicial order which may possibly affect or
prejudice any party cannot be made unless he has been afforded an opportunity to
be heard; this is merely an instance of the application of the maxim audi alteram
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partem. In the present case the defendants have incurred costs to resist the claim of
the plaintiffs. They have not had opportunity given to them by the Subordinate
Judge to contest the truth of the allegations made by the plaintiffs in their
application for withdrawal from the suit. If they had notice of the application, they
might well have appeared and contended, that although the plaintiffs might be
allowed to withdraw from the suit, they should not be permitted to harass the
defendants with a fresh suit on the same cause of action. They might also have
urged that even if an order were made in terms of the petition, the defendants
should be indemnified to the extent of the costs incurred by them. We are of opinion
that the Subordinate Judge should not have made an ex parte order of this
description and that he has acted with material irregularity in the exercise of his
jurisdiction."
The next judgement cited by Mr. Ghosh is a judgement of the Bombay High
Court in the case of The Asian Assurance Co. Ltd. vs. Madholal Sindhu & Ors., reported in
AIR (37) 1950 Bombay 378, where an identical question arose whether an order passed
under Order 23 Rule 1 permitting the plaintiff to withdraw a suit filed in representative
capacity with liberty to apply afresh without notice to the defendant was a legally
sustainable order. The reasons which weighed with the Division Bench were two-fold -
(a) that the order was passed without hearing the defendant; (b) that the representative
suit could not have been permitted to be withdrawn without advertisement seeking views
of the parties whom the plaintiff professed to represent.
We have not been impressed by the submissions advanced by Mr. Ghosh
for following reasons:
(a) Even assuming that the clients of Mr. Ghosh and Mr. Banerjee were
not notified specifically before the prayer for withdrawal of the suit was made, it is not in
dispute that the clients of both Mr. Ghosh and Mr. Banerjee had notice of an identical
appeal preferred by the defendant no.1 to the suit. As a matter of fact, three appeals
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were preferred challenging the self same order. It was a partition suit. All the parties to
the suit were also naturally the parties to all the three appeals. The appeal preferred by
the defendant no.1 was registered as APOT No.563 of 2015. Admittedly, the sworn
application under Section 5 of the Limitation Act praying for condonation of delay was
interpolated and on that basis an application for sanction under Section 340 of the Code
of Criminal Procedure was made by the plaintiff-respondent and another by the
defendant no.28. Those two applications were registered as GA No.1691 of 2016 and GA 2783 of 2016 respectively. The aforesaid APOT 563 of 2015 together with application for condonation of delay together with the applications for sanction for prosecution under Section 340 of the Code of Criminal Procedure were listed for hearing before us on 25th November, 2016. It is not in dispute that all the parties to the suit and all the appellants before us had due notice of the appeals and they also appeared on 25th November, 2016 when that appeal was taken up for hearing. Learned advocate for the appellant in that case submitted that he had instructions not to press the appeal. Since the learned advocates appearing for the appellants took a fair stand, the learned advocates appearing for the plaintiff and the defendant no.28 reciprocated with equal fairness by submitting that they also in that case would not press their respective applications for sanction for prosecution under Section 340 of the Code of Criminal Procedure. On that basis we passed the following order dated 25th November, 2016:
"Mr. Abhrajit Mitra, learned Senior Advocate appearing for the appellant submitted that he has instruction not to press the appeal being APOT 563 of 2015. The appeal is, as such, dismissed as not pressed. There is an application filed by Mr. S. N. Mitra's client. He also, therefore, very fairly submitted that he has also instruction to withdraw the application being G.A.No.1691 of 2016 which is also dismissed as not pressed.6
Mrs. Manju Agarwal also submitted that she has instruction not to press G.A. No. 2183 of 2016. As such, the said application is also dismissed as not pressed.
In view of the fact that the appeal has not been pressed, the applications filed for dismissal of the appeal naturally do not survive. Therefore, they are also dismissed.
Let all other connected appeals and applications appearing in the Monthly List be listed on 28th November, 2016.
Mr. S.N.Mitra's advocate-on-record shall give notice to the other sides."
Learned advocates for the appellants in APOT 585 of 2015 and APOT 11 of 2016 at that time did not raise any objection. The order to that extent has become final and the issue has also become res judicata.
(b) An order passed without hearing a party no longer entails the same consequence as it did a century ago. Even in the case of Rajendra Lal (supra) the Division Bench held that an "order which may possibly affect or prejudice any party" is bad, if it was passed without notice to him. The Apex Court in the case of Aligarh Muslim University vs. Mansoor, reported in 2000 (7) SCC 529, held that in dealing with such cases Court has to consider the prejudice suffered by the party who complains that he was not heard. Mr. Ghosh did not address us on that aspect of the matter nor did he spend a word as to the prejudice suffered by his client.
(c) The judgment passed in The Asian Assurance Co. [supra] has no applicability to the facts and circumstances of this case. It is well settled that the plaintiff in a representative suit is not dominus litis. He can file a suit in a representative character with the leave of Court after having made appropriate advertisement. He can 7 withdraw a suit with the leave of Court only after advertising his intention to do so. In that case that was not done and that was the reason why the Division Bench interfered.
For the aforesaid reasons, we find no substance in the appeals and are, therefore, dismissed. All connected application are disposed of without any further orders considering that the appeals themselves have been dismissed.
Parties shall, however, bear their own costs.
(GIRISH CHANDRA GUPTA, CJ.) (ARINDAM SINHA, J.) sm