Calcutta High Court (Appellete Side)
Smt. Lakshmi Rani @ Lakshmibala Mondal & ... vs Smt. Kamala Bala @ Amalabala Mondal & Ors on 16 May, 2008
IN THE HIGH COURT AT CALCUTTA
CIVIL APELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
S.A. No. 770 of 1983
Smt. Lakshmi Rani @ Lakshmibala Mondal & Anr.
Vs.
Smt. Kamala Bala @ Amalabala Mondal & Ors.
For the Appellants: Mr. P. B. Sahoo,
Mr. Sudhakar Biswas.
For the Respondents: Mr. Sourav Sen.
Judgment on: 16.05.2008 S. P. Talukdar:. The present respondents, as plaintiffs, filed a suit for partition and injunction before the learned 7th Court of Subordinate Judge at Alipore being Title Suit No. 72 of 1973. The facts of the said case are in brief as follows: -
The suit property comprised of 22.40 acres of land in Mouza Gandua, Srichanda, Kalupria, Bhatugachi in Mograhat P.S. and Mouza Durbarat in Falta P.S. in the District of 24-Parganas (South) and it originally belonged to Hemanta Kr. Mondal. With his death, his four sons namely Pulin, Nagen, Rishikesh and Nikunja stepped into his shoes and thus, became owners of 4 annas share in the suit property. With the death of Pulin, his two sons namely Kanai and Chandi being defendant Nos. 6 & 7 got possession of the said 4 annas share of their father. Nikunja died in 1375 B.S. leaving the plaintiffs and the defendant Nos. 1 to 5 as his heirs. Nikunja first got married to Durgabala who gave birth to one son named Paresh and three daughters being defendant Nos. 1, 2 and 3. Nikunja got his son Paresh married to defendant No.4 and she delivered a male child being defendant No.5. After the death of Durgabala in 1364 B.S., Nikunja married plaintiff No.1 in 1365 B.S. and started living with her as husband and wife. Because of such marriage, Paresh got extremely disturbed and was apprehensive about Nikunju's motive. He anxiously thought that his father could give everything to his second wife. This however did not prevent him from staying with his father, Nikunja and his second wife. With wife of Nikunja, getting pregnant, anxiety of Paresh was further intensified. To avoid controversy, Nikunja executed three Kobalas dated 11th May, 1962, 14th May, 1962 and 15th May, 1962 in favour of Paresh and got the same registered. The composition of the family changed with Nikunja's wife giving birth to a child. The defendant No.4 being the wife of Paresh started creating problems in the family. Paresh committed suicide and plaintiff No.1 along with her children left for her father's place. Nikunja filed a suit being Title Suit No.30 of 1967 against the defendant Nos.4 and 5 praying for declaration that the Kobalas as referred to earlier were benami transactions. The said suit was contested by defendant Nos. 4 & 5 by filing written statement. After the death of Nikunja, his wife, plaintiff No.1 got herself substituted. She discovered that there are certain false statements in the plaint. She filed an application for amendment but the same was rejected. The suit was thereafter not proceeded with as it was thought that a suit for partition would be the appropriate relief. It was claimed that on the death of Nikunja, his property devolved upon plaintiff Nos.1, 2 and 3 as well as defendant Nos. 1 to 5 in equal shares. After dismissal of the first suit the defendant No.4 sold some lands covered by the Kobala as referred to earlier for herself as well as natural guardian of defendant No.5 to defendant Nos.9 to 13. For that, defendants No.9 to 13 were also made parties in the subsequently filed partition suit. After the death of Nagen, his heirs were substituted and the persons who allegedly purchased were made defendants No. 14 to 16.
The said suit was contested by filing a written statement by defendant No.3. It was denied that plaintiff was the wife of Nikunja. She was described, as a "kept" and plaintiff Nos. 2 & 3 were illegitimate sons of Nikunja. It was specifically alleged that plaintiff No.1 was a maidservant who used to look after the children of Nikunja but as a result of illicit relationship, plaintiff Nos.2 & 3 were born. Such illicit relationship could not be accepted by the local people, thereby compelling Nikunja to sell his property to Paresh in 1369 B.S. and thereafter, he purchased land in 1370 B.S. at Bhubankhali and constructed a hut thereon. Nikunja started living there with plaintiff No.1.
Defendant No.4 contested the case by filing a separate written statement wherein identical stand was taken.
It was further claimed that plaintiff No.1 was married to one Basanta Mondal of Fatepur village in 1952 and there she lived with her husband for two years before deserting him and joining Nikunja's family. The marriage between Basanta and plaintiff No.1 subsisted till the death of Basanta. It was further claimed that Paresh used to possess the land covered by the deeds of Kobala executed by Nikunja. It was thus specifically claimed by the contesting defendants that plaintiffs did not belong to the family of Nikunja and as such, could not have had any right in respect of any property left behind by Nikunja. Learned Trial Court by the judgment dated 5th August, 1980 decreed the suit in part in the preliminary form. Plaintiffs' 3/28th interest in the suit property was declared. The parties were given two months time for vacating amicable partition. This judgment dated 5th August, 1980 passed by the learned Trial Court was challenged by filing an appeal being Title Appeal No.901 of 1980. Learned Appellate Court by its judgment dated 10th of July, 1982 dismissed the same.
The present appeal was admitted by learned Division Bench of this Court by order dated 1.10.1986 whereby it was decided that this would be heard on grounds No. 2 and 4 as taken in the Memorandum of Appeal.
The said grounds are as follows: -
(i) Whether the suit and the appeal arising out of it are barred by Order 9 Rule 9 (1) of the Code of Civil Procedure?
(ii) Whether the Learned Courts below failed to consider that the respondent No.1 tried to make an amendment with regard to the plaint in the previous suit by her husband, Nikunja Behari Mondal and having failed to do the same she had not proceeded with the said suit and had taken recourse to the filing of the present suit which was therefore not maintainable being barred by the principles of actual and constructive res judicata as also by Order 9 Rule 9 (1) of the Code of Civil Procedure?
Mr. Sahoo, on behalf of the appellants, submitted that the present appeal demands adjudication relating to the status of the alleged second wife and whether any property at all devolved upon her. While referring to the backdrop of the controversy, Mr. Sahoo gave a genealogy of the family composition, which is as follows: -
HEMANTA MONDAL PULIN NAGEN HRISHIKESH NIKUNJA KANAI CHANDICHARAN DURGABALA KAMALABALA @ AMALABALA DEBI PRASAD KHUKURANI PARESH GEETA RANI PHULTUSKI SAIBYA On 18th February, 1967, Paresh died leaving behind his wife Lakshmi Rani @ Lasmibala and daughter, Suchitra, being defendant Nos. 4 & 5 respectively.
Soon thereafter i.e., on 21st March, 1967 Nikunja filed a suit against Lakshmi Rani praying for declaration that the three kobalas executed by him were benami transactions and in the said suit being Title Suit No.30 of 1967 he sought for injunction in respect of the lands covered under the said three deeds. In it, an order of injunction was passed restraining the plaintiff from interfering with the possession of Lakshmi Rani. An appeal was preferred. With the death of Nikunja on 2nd July, 1968, an application for substitution was filed by Kamalabala @ Amalabala, Debi Prasad and Khukurani claiming to be the legal representatives of Nikunja Behari Mondal. The said application dated 12th August, 1968 was allowed by Order dated 17th September, 1968 with the observations that the claim of heirship could be challenged during the trial. Kamalabala filed an application for amendment under Order 6 Rule 17 of Code of Civil Procedure on 18th November, 1990 praying for incorporating that she was the wife of Nikunja. The said petition was dismissed by order dated 14th February, 1971 and it was observed that she was described as "kept" as well as "maidservant" in the plaint filed by Nikunja. Application was filed praying for withdrawal of the suit with leave to sue afresh. It was dismissed by order dated 11th April, 1973. Subsequently, the suit was dismissed for default by order dated 15.5.1973.
Kamalabala then filed a suit being Title Suit No.72 of 1973 praying for declaration and partition. It was decreed in part by the Appellate Court and the appeal preferred against the said judgment was dismissed. This brought the appellant to this court.
Mr. Sahoo submitted that the cause of action in the two suits may be considered the same, if in substance they are identical. Reference was made to the decision in the case of Mohammad Khalil Khan & Ors. vs.Mahbub Ali Mian & Ors., reported in AIR (36) 1949 privy Council 78 wherein it was observed that cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.
Relying upon the decision in the case of Suraj Rattan Thirani & Ors. vs. Azamabad Tea Co. ltd & ors., reported in AIR 1965 Supreme Court 295, it was contended that in considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical".
In this context it may relevant to rely upon the decision in the case of Om Prakash Srivastava vs. Union of India & Anrs., reported in (2006) 6 SCC 207. In paragraph 17 of the said judgment, the Apex Court quoted from paragraph 61 of the decision in the case Mohammad Khalil Khan (Supra). Deriving inspiration from the same, it was contended that the correct test in cases falling under Order 2 Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Ref: Read V. Brown [1888] 22 QBD 128). If the evidence to support the two claims is different, then the cases of action are also different. The causes of action in the two suits may be considered to be the same if in substance they are identical. (Ref: Brunsden V. Humphrey [1884] 14 QBD 141).
Relying upon the decision in the case of Mohammed Seraj vs. Adibar Rahaman Sheikh & Ors., reported in AIR 1968 Calcutta 550, Learned Single Bench of this court, J. Mukherji, B., held as follows:-
"............suits may come and go, withdrawn with or without liberty to sue afresh, dismissed or decreed, - no matter which,- but statements made therein, - no matter where, in pleadings, petitions, affidavits, or evidence - remain for ever, and for all purposes too allowed by law, such as to be proceeded with as admissions, when they are found to be such, so long as they are not rebutted ..........or to be confronted with. Otherwise the court, no less the party interested, will be deprived of very valuable evidence, nothing to say of a premium being but on reckless allegations with no apprehension of the makers thereof coming to grief in future for such glibness".
Mr. Sen, appearing as learned Counsel for the respondents, in response to this, submitted that the dismissal of the suit for non-prosecution or for non- appearance of the plaintiff is not a decree as specified by Section 2(2) of the C.P.Code. He referred to the decision in the case Firdous Omer (dead) LRS. & Ors. vs. Bankim Chandra Daw (dead) By Lrs., reported in (2006) 6 SCC 569. The contention raised by Mr. Sahoo as referred to earlier does not seem to have been a matter for consideration in this case. Reference was also made to the decision in this case of Budhulal Kasturchand vs. Chhotelal & Ors., reported in 1977 Madhya Pradesh, while submitting that an order dismissing a suit for default in payment of costs is appealable as a decree. The word 'default' in Section 2 (2) of the Code of Civil Procedure refers only to non-appearance of parties as specifically referred to in Order 9 and in Order 17, Rule 2 C.P.Code. It does not include any other default. This decision also does not seem to be of any relevance in the facts and circumstances of the present case. Mr. Sen further referred to the decision in the case Kandapazha Nadal & Ors. vs. Chitraganiammal & Ors., reported in (SC,Suppl.) 2007 (2) CHN, wherein it was held that if the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under Section 2 (2) of the Code. Mr. Sen on behalf of the respondents was perfectly right in submitting that no words should be considered redundant or surplus in interpreting provisions of a statute or a rule. In this context, he referred to the decision in the case Dinesh Chandra Sangma vs. State of Assam & Ors., reported in AIR 1978 Supreme Court 17. It was submitted that rules of procedure are not by themselves an end but the means to achieve ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of the rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction must be preferred to that which is rigid and negatives the cause of justice. (Ref: Owners & Parties interested in M.V. "Vali Pero" v. Fernandeo Lopex, AIR 1989 Supreme Court 2206). Mr. Sen further submitted that one of the essential conditions of res judicata is that there must be a formal adjudication between the parties after full hearing. The matter must be finally decided between the parties. He refers to the decision in the case Kewal Singh vs. Lajwanti., reported in AIR 1980 Supreme Court 161 in this context. He further submitted that a matter may be said to have been heard and finally decided when the decision in the former suit was on merits. (Ref: Sheodan Singh vs. Daryao Kunwar reported in AIR 1966 SC 1332). Mr. Sen laid emphasis on the expression "heard and finally decided" while referring to the decision in the case of Shivashankar Prasad Sah & Anrs. vs. Baikunth Nath Singh & Ors., reported in AIR 1969 Supreme Court 971. According to him, the dispute raised in the present case having not been decided in the earlier suit, question of throwing the plaintiffs out of court under the provision under Order 9 Rule 9 (1) of the C.P.Code can hardly arise. He further submitted that the earlier suit which was filed by the husband of Kamalabala Mondal ultimately resulted in dismissal for default and there had been no adjudication of the disputes raised therein. He thus contended that the plea of applicability of the principles of res judicata cannot be raised in such circumstances.
In course of submission, Mr. Sahoo submitted that appellant filed an application under Order 41 Rule 27 of the C.P.Code before the First Appellate Court. It was contended that Kamalabala was rather the wife of one Basanta Mondal. He mentioned that statement as to the relationship in the pleadings in the prior suit in absence of any material to show collusion is certainly admissible in subsequent litigation. In such backdrop, he referred to the decision in the case of Jan Mohammad & Ors. vs. Karam Chand & Ors., reported in AIR (34) 1947 Privy Council 99. The decision in the case of Ghazanfar Ali Khan vs. Musammat Kaniz Fatima & Anrs. reported in XXXVII Indian Appeals page 105 was referred to while submitting that there cannot be any presumption of marriage merely on the ground of long cohabitation. It was further submitted that evidence on record as well as pleading rather indicates that there was no acknowledgement of Kamalabala as wife of Nikunja. It was then submitted that parties are bound by the pleading and legal representatives are similarly bound by the pleading made by their predecessor in earlier case. (Ref:- Venkatappa @ Moode (D) by LRs. vs. M. Abdul Jabbar & Ors. reported in 2006 (2) CHN (SC)105).
Mr. Sen while responding to the challenge submitted that reference to the order passed in the earlier suit in response to the application for amendment cannot have much bearing as while considering an application for amendment, the court should not go into the correctness or falsity of the case. It should not record a finding on the merit of the amendment and the merits of the amendment sought to be incorporated are not to be adjudged at the stage of allowing the prayer for amendment. He drew inspiration in this regard from the decision in the case of Rajesh Kumar Aggarwal & Ors vs. Modi & Ors., reported in Air 2006 Supreme Court 1647. It was then categorically claimed that in no case of a decision under Order 22 Rule 5 of the C.P.Code would operate as res judicata between the same parties or their successor-in-interests or the privies, in a subsequent proceeding even when the said parties had been provided an opportunity to contest the issue and lead the evidence thereon. (Ref: - Mohinder Kaur & Anr. vs. Piara Singh., reported in AIR 1981 Punjab & Haryana 130.
It was submitted that appellants are not justified in trying to resist their proceeding with the suit merely because the earlier suit was dismissed for default. If the pleadings do not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial. Any amount of evidence in that regard, however excellent the same may be, is futile. It cannot be disputed that evidence beyond the pleadings cannot be accepted. It was categorically submitted that the First Appellate Court is the final court of fact and raising disputes on facts thereafter is a futile exercise.
The decision in the case of Mukha Singh & Ors. vs. Ramchariter Singh & Ors., reported in AIR 1956 Patna 143 was extensively referred to by learned Counsel for the respondents while submitting that the facts and circumstances of the present case would not justify the view that the subsequently filed suit was barred under Order 9 Rule 9 (1) of the C.P.Code. According to him, in the factual backdrop of the present case, it would not be correct to say that the suit under reference is in substance a title suit in the garb of a partition suit.
It is true that Order 9 Rule 9 of C.P.Code lays down the disability in respect of the dismissal for default. Section 2 Clause (2) of the Code defining a decree states that the word 'decree' shall not include any order of dismissal for default. The dismissal for default cannot have the effect of res judicata. Order 9 Rule 9 of the Code lays down the disability that the suit shall not be brought upon the same cause of action. Much of the controversy raised in the present case rests on the scope and ambit of the expression 'cause of action'.
" 'Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action". (Ref.: -Halsbury's Laws of England, 4th Edn.).
One great criterion when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit is whether the same evidence will maintain both actions.
In view of 1976 Amendment of the Code of Civil Procedure, second appeal would be admissible only if a question of law, where the question relates to substance, procedure or evidence, has been wrongly decided, and then if the question is substantial. In this case, two questions of law, as referred to earlier, were formulated. In such view it is now essential to ascertain whether the cause of action in the two suits is the same. Earlier suit was one for declaration and it related to three deeds of kobala which as claimed by the plaintiff/Nikunja, were sham transaction. With the death of the plaintiff, the present respondents were substituted keeping the issue of legality of Kamala's marriage with Nikunja open. One amendment application was filed by Kamalabala in order to incorporate the claim that she was legally married wife of Nikunja but it was not allowed. Subsequently, the said suit was dismissed for default. In fact, nothing was decided thereon - neither the claim relating to the suit property, nor the claim of marriage.
This prompted the learned Court to hold that the subsequent suit was not barred by the principles of res judicata. This was affirmed by the learned First Appellate Court. Attention of the court was invited to the pleadings in the earlier suit where Nikunja described Kamalabala as his concubine or mistress. The effect of such statement in the pleading had been analyzed by both the learned Courts. Both the learned Courts having accepted the evidence in support of the claim that Kamalabala was married wife of Nikunja, I do not think there is any scope for dealing with the said factual aspect any further. As discussed earlier, 'cause of action' has not been defined in the Code. But it has been otherwise incorporated to mean the entire bundle of facts which the plaintiff has to prove in order to establish his right and the relief he claims. In reply to the media upon which he asks the court to proceed in order to grant the relief prayed for in the plaint. In order to establish the claim that the deeds of kobala executed by plaintiff/Nikunja in favour of his son, Paresh, were banami or sham transaction, his exact relationship with Kamalabala was only of limited importance. Evidence required to be adduced for success in the said suit cannot thus be said to be the same as required to be placed in the subsequent suit for partition. The scope of the title suit is patently different from the scope of the suit for partition. As such, I find it difficult to accept the contention that the suit under consideration is by any stretch of imagination barred under Order 9 Rule 9 (1) of the Code of Civil Procedure or by the principle of actual or constructive res judicata.
Mr. Sahoo in course of submission dealt with Order 41 Rule 27 of the Code as well as relevant provisions of law regarding inheritance. He submitted that as illegitimate children, Kamalabala's children could not have had any claim in respect of father's inherited property. But in view of the discussion made earlier, this court does not find any scope nor justification for dealing with the dispute relating to relationship of Kamalabala and Nikunja - more so, in view of concurrent findings of fact. It was quite rightly mentioned that admission in plaint cannot be conclusive and a party can very well show it as not true. (Ref:
Basant Singh vs. Janki Singh & Ors., reported in AIR 1967 Supreme Court
341.) Considering all these aspects I find it difficult, if not impossible, to appreciate the grievances as ventilated by learned Senior Counsel Mr.Sahoo on behalf of the appellants. The two substantial questions formulated for adjudication are dealt with as above. Accordingly, the present appeal being Second Appeal No.770 of 1983 fails and be dismissed on contest.
Stamp paid correct.
There is no order as to costs.
The judgment and order passed by the learned Trial Court and affirmed by the impugned judgment dated 10th July, 1982 passed by the learned First Appellate Court thus, stand affirmed. Parties are given two months time for amicable partition of the property in the manner and according to the shares as declared in the judgment dated 10th July, 1982.
Xerox certified copy of the order be supplied to the parties, if applied for, as expeditiously as possible.
(S. P. Talukdar, J.)