Calcutta High Court (Appellete Side)
For The vs Mrinal Kanti Dingal And Others) on 4 August, 2011
Author: Soumen Sen
Bench: Soumen Sen
-:1:- 02 04.08.11
C.O. 826 of 2009 rrc Mr. Radhasyam Maiti .......For the petitioners Mr. Sourav Sahai .......For the Opposite Party This revisional application is arising out of an Order No. 173 dted 10th September, 2008 passed by the Learned Civil Judge (Sr. Division), Diamond Harbour, South 24-Parganas in T.S. No. 7 of 1997 (Mrinal Kanti Saha Vs. Mrinal Kanti Dingal and Others).
The principle grievance of the petitioners in this application is that Learned Single Judge has wrongly exercised its discretion in directing the analogous hearing of the three suits namely, T.S. No. 7 of 1997, T.S. No. 138 of 2006 and 139 of 2006.
The Suit No. 7 of 1997 was instituted by Mrinal Kanti Saha and two others against Mrinal Kanti Dingal and several others claiming partition. The plaintiffs in that suit had based their title on the basis of gift made in -:2:- their favour by their mother Renubala Saha.
It was the case of the plaintiffs that Dingals were the adjacent plot-holders and they were trying to distribute the possession of the plaintiffs in respect of the suit property. Accordingly, apart from the claim for partition, prayer for injunction was also made.
Subsequently, it appears that in the said proceeding Dingal group filed a written statement claiming their right over the suit plot. The defendant no. 4 namely, Bibhuti Bhusan Parui in the said proceeding, claimed that his predecessor-in-interest acquired right, title and interest in respect of 6 cents of suit property.
In T.S. No. 138 of 2006 original No. T.S. No. 211 of 1982 filed before the 3rd Munsif Court, Diamond Harbour, the defendant no. 4 namely, Bibhuti Bhusan Parui claimed confirmation of possession, title and permanent injunction against Mrinal Kanti Dingal over 6 cents of land out of 12 cents of suit land.
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Mrinal Kanti Dingal in his written statement claimed title in the same vain as stated in the written statement filed in respect of T.S. No. 7 of 1997.
Molina Bala Parui in T.S. 139 of 2006, which was filed before the 3rd Munsif Court, Diamond Harbour, as plaintiff claimed right, title and permanent injunction over 3 cents of suit land out of 12 cents of suit plot against Saha group alleging that she has sold 9 cents of suit land to Mrinal Kanti Dingal and her Sale Deed to Renupada Saha, the predecessor-in-interest of the plaintiffs in T.S. 7 of 1997 related to non-suit plot, when read with reference to boundary described in the said Deed.
On the basis of the aforesaid facts, Learned Court below held as follows: -
"So, it appears that the main point whether the plaintiffs of T.S. No. 7/97 have any title or share of the suit land, centres round the determination of the question whether the sale -:4:- by Malina Bala with reference to the sujit plots mentioned in the deeds of one side with wrong boundary and the other dispute whether the lands sold with boundary but with wrong plot numbers, decision of which after considering the facts, circumstances and evidences of all three cases will determine the fate of all the three cases.
So, in my considered view to avoid multiplicity of proceedings and to shorten the time of litigation suits No. 138/06 and 139/06 be tried analogously with T.S. No. 7/97."
Learned Counsel appearing on behalf of the opposite Party No. 2 has drawn my attention to Order 17 dated 24th June, 2002 passed by the Learned District Judge, South 24-Parganas (South) at Alipore in Misc. Case No. 64 of 2001 in which Learned District Judge has allowed the consolidation of suit, namely, T.S. No. 211 of 1982 and T.S. No. 258 of 1994 which was since being re- numbered as T.S. No. 138 of 2006 and T.S. No. 139 of 2006. The said order was challenged before this Court. -:5:- But this Court refused to entertain the said application and the order of Learned District Judge was upheld.
It cannot be said on the basis of the three plaints that there is no common thread uniting all the three suits. In fact each one has a difficult story to tell as to their rights in respect the suit property.
The Learned Counsel appearing on behalf of the petitioners has relied upon a decision reported in 2010 (2) C.L.J. (Cal) 688 (The Royal Government of Bhutan Vs. Trot Shoe Co. Pvt. Ltd.) for the proposition that under the present facts and circumstances, analogous trial of the suits could have been directed.
It was found on the fact stated by His Lordship that joint trial would create injustice to the plaintiffs/petitioners and on that basis, the order of the Learned Trial Judge was set aside.
The suit land in all the three suits, is the same -:6:- and parties are litigating over the said suit property, may be claiming different rights over the same.
It would be beneficial for all the parties in case, a joint trial takes place which would resolve all future complications if separate trials are held and put an end to the controversy once and for all.
In view of that, the decision reported in 2010 (2) C.L.J. (Cal) 688 (supra) does not assist the petitioner in any manner whatsoever.
The T.S. No. 7 of 1997 is the 3rd suit by the present applicant in which they have not made Molina Bala Parui a party. It has been contended that decision in Molina Bala Parui suit would not have any bearing on the other suit. But that all the parties are asserting their right in one way as the other at least prima facie over the suit property cannot be disputed and for the purpose of putting an end to all such contentions analogous trial would be beneficial for the parties. However such -:7:- observations are purely tentative and it is always open for the Trial Judge to order separate trial if it appears at any stage that it would embarrass or delay the trial. However, at this stage on the basis of the material on record it cannot be said that the order directing the joint trial was not justified.
Learned Counsel appearing for the petitioners expressed apprehension that since T.S. No. 9 of 1997 has been tagged with T.S. No. 138 of 2006 and T.S. No. 139 of 2006, the hearing of T.S. No. 7 of 1997 may be delayed. In fact, the order under challenge was passed on 10th September, 2008 and it appears that due to pendency of this revisional application, no further steps should be taken before the Court below.
It is needless to mention that since other two suits were filed as early as in 1982 and 1994, Learned Civil Judge (Sr. Division), Diamond Harbour, South 24- Parganas should make all endeavour to dispose of the said three suits as early as possible preferably within a -:8:- period of 1½ years from the date of communication of this order.
Learned Trial Judge should proceed with the matter without granting any unnecessary adjournment to either of the parties and direction of the Learned Trial Judge with regard to the conduct of the suit ready for hearing, should be taken as peremptory and no extension should be granted to any such directions that may be passed in relation to the said suit.
The aforesaid direction is passed on the basis of the joint prayers made by Learned Counsels representing the parties before me.
The revisional application stands disposed of on the above terms.
Vokalatnama filed by the opposite parties be kept on record.
Let urgent photostat copy of this order, if applied for, be given to the parties on the usual undertakings. -:9:-
( SOUMEN SEN, J. )