Calcutta High Court (Appellete Side)
Kashed Ali Sardar & Ors vs Ms. Hamida Bibi & Ors on 30 January, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 1492 of 2011
Kashed Ali Sardar & ors.
Versus
Ms. Hamida Bibi & ors.
with
C.O. 2237 of 2011
Pankaj Bera & anr.
Versus
Shyamal Kumar Rana & ors.
For the petitioners in : Mr. Sanjoy Ghosh, Advocate
in C.O. 1492 of 2011
For the opposite parties : Mr. S.P, Roy Choudhury, Sr. Advocate
in C.O. 1492 of 2011 Mr. N.C. Mondal, Advocate
For the petitioners in : Mr. J.R. Chatterjee, Sr. Advocate
in C.O. 2237 of 2011 Mr. S.K. Dutta, Advocate
For the opposite parties : Mr. P.S. Bhattacharya, Advocate
in C.O. 1492 of 2011 Mr. Arunava Maiti, Advocate
Hearing concluded on : August 12, 2011
2
Judgment on : January 30, 2012
1.The common question involved in these revisional applications under Article 227 of the Constitution is whether the learned Judges of the trial Court were justified in allowing impleadment of new parties as additional defendants in the partition suits pending before them, upon allowing applications under Order I Rule 10(2), Code of Civil Procedure Code made in that behalf after preliminary decrees in the suits had been passed therein, which attained finality by reason of not being appealed against.
2. According to Mr. Ghosh, learned advocate for the petitioners in C.O. 1492 of 2011 [being the plaintiffs in a suit for partition being T.S. 75 of 1981, pending on the file of the learned Civil Judge (Senior Division), 10th Court, at Alipore], who suffered the impugned order dated March 5, 2011 allowing the prayer of the opposite parties 1 to 20 for their impleadment as additional defendants, the question is no longer res integra. He contended that based on the authority of the Supreme Court decision reported in AIR 1963 SC 992 : Venkata Reddi v. Pethi Reddi, the Orissa High Court in its decision reported in AIR 1966 Orissa 160 : Baman Chandra Acharya v. Balaram Acharya, and the Division Bench of the Kerala High Court in its decision reported in AIR 1978 Kerala 152 : Neela Kantha Pillai Ramachandran Nair v. Ayyappan Pillai Kumara Pillai, have ruled that after passing of preliminary decree in a partition suit, addition of parties cannot 3 be allowed if the preliminary decree is to be ripped open for an adjudication regarding its propriety and/or validity.
3. It would be convenient to note the conclusions reached by the learned Judges of the Orissa and the Kerala High Courts in the decisions referred to supra.
4. In Baman Chandra Acharya (supra), the learned Judge ruled in paragraphs 12 and 13 as follows:
"12. To sum up, even if other conditions under Or. 1, R. 10(2) are fulfilled, an application for addition of parties cannot be allowed after the preliminary decree is passed except in certain exceptional circumstances, such as, impletion of transferees subsequent to the preliminary decrees or death of parties whose rights were carved out in the preliminary decree. For instance, a preliminary decree declares that X, Y and Z have one-third share each in the disputed property, Z dies leaving behind some heirs who are entitled to his share with varying interests. Such heirs can he added at the final decree stage in place of Z and on their desire their varying interests may be carved out at the final decree stage. In these exceptions, the heirs of (sic) the preliminary decree declaring rights, title and interest of the parties in a particular manner are not affected.
13. Judged by the aforesaid tests, the application of the petitioner is liable to be rejected. A preliminary decree had already been passed. If the petitioners' rights are adjudicated upon at the final decree stage and they succeed, the right, title and interest of the different co- sharers, as determined in the preliminary decree, must necessarily be affected. The preliminary decree has become final and it cannot be touched in that process. The only remedy of the petitioners is to file a suit impleading the plaintiff and the defendants as parties therein. The decision in present litigation would not constitute res judicata against the petitioners."
5. The Bench in Neela Kantha (supra) ruled in paragraphs 4 and 5 as follows:
"4. After having given our anxious consideration to all aspects of the matter, we are of opinion that (in cases such as suits for redemption or partition) where the passing of a preliminary decree is contemplated, the power conferred under O. 1, R. 10, C. P. C. is to be regarded as circumscribed by the provisions contained in S. 2 (2) and S. 97 of the 4 Code. As pointed out by the Supreme Court in Venkata Reddi v. Pethi Reddi (AIR 1963 SC 992), S. 97, C. P. C. clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the court passing it. It will not, therefore, be reasonable to understand the provision in O. 1, R. 10, C. P. C. as empowering the impleadment of additional parties in a suit in circumstances which would necessitate the ripping open of the determination made in the preliminary decree already passed in the suit. However, one can very well conceive of several situations where an impleadment of an additional party may be asked for or may be considered by the court to be necessary for a proper and complete adjudication of the matters in controversy in such a suit and such impleadment would not involve the reopening of matters already finally settled by the preliminary decree. The correct legal position in our opinion is that while the passing of a preliminary decree in a suit for partition or redemption will not ipso facto operate as a total bar against the addition of any new parties to the action, the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment ; the addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the court at the time of the passing of the preliminary decree. As to whether or not the impleadment of a new party should be allowed on the aforesaid condition in the circumstances of a particular case will have to be considered by the court on the merits of each case as and when the said question arises. No party should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was passed without his being on the party array, particularly when there are pleas which the said party could have put forward in respect of the matters considered and settled by the preliminary decree.
5. We do not, therefore, find it possible to agree wholly with the principle laid down in either of the two sets of rulings cited before us, as, in our opinion, it would not be right either to completely rule out the addition of parties after the passing of a preliminary decree or to recognise an unrestricted power to allow the impleadment of additional parties even after the preliminary decree so as to rip open matters already decided and settled by the preliminary decree. As we have already indicated the correct view seems to us to be that the power of the court to implead additional parties at a stage subsequent to the passing of a preliminary decree in an action for partition or redemption must be limited to cases where such impleadment of 5 additional parties would not involve the ripping open of any of the matters already dealt with in the preliminary decree and the case can be proceeded with the additional parties on record on the basis of the determination already given in the preliminary decree."
6. A bare perusal of the aforesaid decisions would reveal that it is not the law that addition of party, after preliminary decree in a partition suit has been passed, can never be allowed. On the contrary, the rulings do seem to suggest that the Court may, having regard to exceptional facts and circumstances, allow addition of a party even after preliminary decree has been passed. However, the learned Judges appear to be ad idem that if addition of a party would necessitate ripping open the determination made in the preliminary decree already passed in the suit, in such a situation addition cannot be allowed. The learned Judges arrived at such conclusion considering Section 97 of the Code.
7. Although not cited by the parties, the decision of a learned Judge of this Court reported in 1997 (4) ICC 311 (Cal) : Bijaya Acharya (Smt.) v. Radhika Bala Mondal (Smt.) & ors. came to my notice as a result of my research on the subject while I was preparing the judgment on C.O. 1492 of 2011. It held a view, consistent with Mr. Ghosh's argument that addition of party in a suit for partition after preliminary decree has been passed is not permissible except in specific circumstances. In the process of the reasoning leading to the ultimate conclusion, the learned Judge considered the decision of the Supreme Court reported in AIR 1967 SC 1470 :
Phoolchand & anr. v. Gopal Lal. More of the said two decisions, later.6
8. Having regard to the decision in Bijaya Acharya (Smt.) (supra), I recalled the order reserving judgment and extended opportunity to Mr. Roy Choudhury, learned senior advocate for the opposite parties 1 to 20 (the added defendants) to argue why I should not follow the same.
9. By the time Mr. Roy Choudhury could complete his argument, C.O. 2237 of 2011 came up for consideration before me, involving similar point. The defendants 1 to 6 in T.S. 146 of 2001, pending on the file of the learned Civil Judge (Senior Division), 1st Court at Contai felt aggrieved by the order dated June 28, 2011 whereby an application dated May 24, 2011 filed by the plaintiffs/opposite parties 1 to 5 under Order 1 Rule 10(2) of the Code was allowed and thereby defendants 7, 8 and 9 were directed to be added as parties to the suit notwithstanding that preliminary decree in the suit had been passed. C.O. 2237 of 2011 is directed against the said order dated June 28, 2011.
10. Mr. Roy Choudhury contended that whether or not addition of a party in a partition suit can be allowed after the preliminary decree has been passed would depend on the facts of each case and the Court must judiciously decide whether the preliminary decree ought to be reopened or not having regard to the circumstances before it.
11. Strong reliance was placed by him on the decision in Phoolchand (supra).
He contended that the said decision is an authority for the proposition that there could be more than one preliminary decree and that if an event transpires after the preliminary decree is passed, which necessitates a 7 change in shares, it should be the duty of the Court to do so. Much emphasis was laid by him on the observation to the effect that "(so) far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so....". According to him, consideration of adding a party in a partition suit, even after passing of preliminary decree therein, would not be confined only to death of a party or transfer of shares from lawful owners but would extend to any circumstance transpiring after such preliminary decree that would necessitate passing of a second preliminary decree, even by adding parties if required. He referred to 'fraud' as vitiating the most solemn of transactions and, according to him, if a party seeking addition in a partition suit is able to demonstrate that the preliminary decree that has been passed is vitiated by fraud, there is no reason as to why the addition may not be allowed merely because there is an unchallenged preliminary decree inter-se between the parties to the suit.
12. It was also contended by him that Section 97 of the Code would be applicable only to parties to the suit and a non-party, having an independent right and a direct interest in the subject matter of the suit, could be added as a defendant if he does satisfy the Court that he had no knowledge of the institution of the suit as well as the preliminary decree earlier. This is so because the Court in terms of Order 1 Rule 10(2) of the Code is entitled, at any stage of the proceedings, to add parties not only on 8 the application of the plaintiff or the party seeking to be added but also suo motu and such power is not affected by any other provision of the Code.
13. He, accordingly, prayed that the order impugned in C.O. 1492 of 2011 ought to be upheld and the revisional application rejected.
14. Mr. Chatterjee, learned senior advocate for the petitioners in C.O. 2237 of 2011 did not advance elaborate submissions. He contended that the order impugned is in the teeth of the decision in Bijaya Acharya (Smt.) (supra) and, therefore, merits to be set aside.
15. Appearing on behalf of the plaintiffs/opposite parties 1 to 5, Mr. Bhattacharya, learned advocate contended that the learned Judge did not commit any error of jurisdiction in allowing the prayer for addition of parties since the defendants 1 and 2 in the suit, after the preliminary decree had been passed, had transferred a portion of the property under their occupation to the added defendants on lease for 55 years and for passing an effective final decree, their presence would be required. He thus prayed for dismissal of the revisional application.
16. For understanding the context in which the observations were made by the Supreme Court on which Mr. Roy Choudhury heavily relied, as extracted supra, it would be worthwhile to read the entire paragraph of the decision in Phoolchand (supra) wherein it occurs. Paragraph 7, being the relevant paragraph, reads thus:
"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary 9 decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and 10 was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can he amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant."
17. In Bijaya Acharya (Smt.) (supra), the learned Judge was faced with an argument, similar to the one advanced by Mr. Roy Choudhury, raised by Mr. S. B. Bakshi, learned senior advocate appearing on behalf of the revisionist, who was aggrieved by rejection of the application for addition of party by the learned trial judge. His argument was also based on the ruling in Phoolchand (supra). Upon due consideration of the contentions that were raised, it was held as follows:
"2.****The Supreme Court has made also a pertinent observation that even if it transpires after the preliminary decree which necessitates change of shares, the Court can and should do it to take into account the cumulative effect of oscillation of shares with changing circumstances resulting in change of numbers of the co-sharers flowing from natural phenomena like death. Even if a transfer takes place, it can result in fresh computation of shares but it cannot arrogate into the domain of determination of shares of the respective parties. Mr. Bakshi with his usual expertise has laid emphasis on the expression 'cicumstances' justifying the passing of second preliminary decree and, according to Mr. Bakshi, the catena as referred to in the relevant paragraph of the judgment is illustrative in nature and not exhaustive. This Court has given anxious consideration to the well-thought submissions of Mr. Bakshi and it is of opinion that circumstances justifying the passing of a preliminary decree circumscribed by the Supreme Court are due to death, transfer and/or some such analogous events of like nature for which the Court has to ponder over the connotation 'ejusdem generis'. The circumstances justifying the passing of the second preliminary decree as illustrated by the Supreme Court are exhaustive subject to extension of event of like nature and of similar type and not of some such event or circumstances which are qualitatively different. Therefore, this Court is 11 constrained to reject the submissions of Mr. Bakshi after recording its appreciation of the merit of presentation of the said submissions. This Court is also made to ponder over the other aspect that if by way of a petition for addition of parties a party is allowed to reopen a preliminary decree, then the said party may be inhibited in the same suit to render proper evidence to have the decree reopened. The remedy which the petitioner may have is by way of a full-fledged suit for declaration that the preliminary decree is not binding on them and/or it is vitiated by fraud but the issues emanating therefrom cannot constitute the same issues which are likely to be discerned as isues of fact and issues of law after dissection of the provisions of Order 14 Rule 1 C.P.C. This Court does not appreciate the laborious effort to reach the main thoroughfare for obtaining relief by way of a bid to enter into a bye-lane which ultimately turn out to be a futile effort.***"
18. The learned Judge while deciding Bijaya Acharya (Smt.) (supra) has read and interpreted the decision in Phoolchand (supra). The learned Judge's understanding of the law declared by the Supreme Court is this : an event transpiring after the preliminary decree has been passed in a partition suit or circumstances justifying reopening of a preliminary decree would not extend to any case not akin to death or transfer or like events, to be read ejusdem generis, and that the illustration given is an exhaustive enumeration of the circumstances justifying reopening of a preliminary decree.
19. The different High Courts, referred to above, appear to be ad idem on the point in issue. This has been the law for more than the last four decades. I do not see any reason to take a view different from the one taken. If at all certain parties have instituted a collusive suit to obtain a decree for partition of lands that do not belong to them or over which they can claim no valid and legal right, title and interest, it would be open to the aggrieved 12 opposite parties 1 to 20 in C.O. 1492 of 2011 to initiate steps in accordance with law to have the final decree declared null and void on all grounds that may be available to them in law, as and when the same is sought to be enforced. Their addition as defendants at this stage of the suit, as rightly contended by Mr. Ghosh, is likely to result in ripping open the preliminary decree, which ought not to be encouraged.
20. Reserving the liberty of the opposite parties 1 to 20 to take such other legal steps that they may be advised to have the effect of the final decree that might be passed in Title Suit No. 75 of 1981 nullified, C.O. 1492 of 2011 stands allowed by setting aside the order impugned.
21. Insofar as C.O. 2237 of 2011 is concerned, there appears to have been a transfer by lease resulting in increase in the number of share-holders after the preliminary decree was passed. Having regard to the authorities noticed above, the order impugned must be upheld. C.O. 2237 of 2011 stands dismissed accordingly.
22. There shall be no order for costs.
23. Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of C.O. 2237 of 2011. Urgent photostat certified copy of this judgment and order shall be made available to the applicant at an early date.
(DIPANKAR DATTA, J.)