Calcutta High Court
Shree Shree Iswar Shiv Thakur & Ors vs Amar Nath Daw & Anr on 22 May, 1997
Equivalent citations: (1998)1CALLT58(HC)
Author: Umesh Chandra Banerjee
Bench: Umesh Chandra Banerjee
JUDGMENT S. Narayan, J.
1. This is an appeal arising out of an order dated July 22, 1993 passed by a Single Bench of this court in O.S. Suit No. 135 of 1992, whereby an originating summons was dismissed upon a preliminary point without answering any of the questions raised therein.
2. The impugned order is a short one and, therefore, for convenience's sake, the relevant extract of the said order needs be first set out as follows:-
"Even if it is determined that the defendant No. 1 has no right to occupy the said premised, upon a true construction of the deeds in question yet in the exercise of the jurisdiction of giving answer to questions raised in an originating summons, this court would lack that power to pass a decree of eviction, which only can ultimately be completed redressal of the grievance of the plaintiffs in this O.S. Suit. A piecemeal determination of rights of alleged shebalts, trustees or secretaries in general should not be gone into, if it is found that such a determination would still leave open the further question of the grant of the consequent relief of actual eviction from the premises alleged to be unauthorised ly occupied."
3. As to the questions sought to be answered by the trial court it is to be found that the sole target was to establish on record that the defendant No. 1 came in possession of the disputed premises No. 8,9 and 11, Dlnu Rakshit Lane, being the Debutter Estate under trust as a Shabaits during his pala commencing on August 2, 1990 and that the subsequent claim of the defendant No. 1 over the same as a monthly tenant in collusion with and connivance of the defendant No.2 (the then Secretary) of the Trust Board was Invalid and unlawful. With this end in view, the questions as set out in the summons may be enumerated as given below :--
(a) is Secretary or any individual Trustee entitled to or is empowered to deal with the properties of the Amritalal Daw Debuttar Estate or any portion thereof ?
(b) Has any Shebait right to remain in possession and/or occupation of any portion of the said premises Nos. 8, 9 and 11 Dinu Rakshlt Lane, Calcutta after the expiry of his pala and/or turn of worship of the plaintiff deities ?
(c) is the claim of the defendant No. 1, as monthly tenant in respect of the portion of the premises Nos. 8, 9 and 11, Dinu Rakshtt Lane, Calcutta, lawful or valid ?
(d) Have the defendants or either of them conducted themselves in a manner unbecoming of their position as Shebalts and/or Trustees of the said Trust Estate of Amrit Lal Daw Debuttar Estate?
(e) Are the defendants or either of them liable to be removed from the office of the trustee and/or Shebalts of the said Trust Estate?
4. The trial court, in exercise of its discretion, outright dismissed the above summons on the preliminary point that a piecemeal determination of the issues was thoroughly undesirable. Needless is to reiterate that the process of the originating summons is definitely a discretionary procedure as laid in Chapter XIII of the Original Side Rules of this court. That being so, we would hasten to observe that an appellate court ought not to Interfere in the matter unless there was a jurisdictional want of the trial court or the discretion exercised was perverse so as to endanger cause of justice. The jurlsdlctlonal want was, however, not a point in controversy here. All that was material was whether the discretion has been properly availed of by the trial court.
5. In order to appreciate the discretion exercised by the trial court in the matter, it would be necessary to advert to the contextual facts in the nut shell.
6. One Amrit Lal Daw made and published his last will in the year 1900 and, thereafter, he died leaving behind his widow and five sons. The will was probated on July 18, 1901. A Deed of Trust was executed by the widow and the sons of Amrit Lal Daw in April, 1910 for better management of the Estate created by the Will and all the five sons were appointed as Trustees. Subsequently, in the year 1921, Prandhore Daw, the 3rd son of Amrit Lal Daw, Instituted a suit being Suit No. 2963 of 1921 in this court for setting aside the Deed of Trust and for construction of the Will and also for partition of the Estate under the Will. A consent decree was passed in the suit, whereby some properties were set apart for Seva Puja of deities and a sole Arbitrator was appointed. An award was published by the Arbitrator in the year 1925. Thereupon. In the year 1943, a Deed of Family Arrangement was made between the heirs of Amrit Lal Daw, whereby the properties scheduled therein were vested unto a Board of Trustees, consisting one male member from the branch of each five sons of Amrit Lal Daw with one of them appointed as Secretary of the Board, with power to let out properties and to realise rent. In early 1989, the then Secretary i.e. the defendant No.2 of the present O.S. Suit No. 135 of 1989 in said to have let out the disputed premises to the defendant No. 1 as a monthly tenant and gave vacant possession thereof to him. The defendant No. 1 was residing therein and also started a business in the name and style of "MANGALAM" to hire out the disputed premises for marriage and other ceremonies. Thereupon a suit being T.S. No. 337 of 1990 was Instituted by some of the Trustees to evict the defendant No.1 from the disputed premises and also there was a separate proceeding Initiated for originating summons, as already referred to above.
7. On a perusal of the above mentioned contextual facts one's impression in mind would hang over on two most pertinent questions.
(i) Whether the answers to the questions raised in the summons would achieve the finality of the dispute between the parties and the plaintiffs would be able to get the relief actually needed and sought for;
(iii) Whether the series of events taking place as to the management and control of the Debuttar Estate need thorough Investigation to properly construe the deeds executed in course of time.
8. In our considered opinion, where as the answer to first question was in negative, the answer to the second was in affirmative. We would, therefore, most certainly approve the line of thinking, as duly taken by the trial court. Even assuming that the originating summons are determined in favour of the plaintiffs, there will be no end of the matter or the dispute actually existing between the parties. The plaintiffs actually wanted a declaration to Invalidate the claim of the defendant No.l and, thereupon, to seek an ejectment of the said defendant from the disputed premises. Hence, even after the disposal of the summons in favour of the plaintiffs there would be yet another step to be taken by them to get the defendant No.l evicted from the premises and that can be have had only by a decree of eviction. And, in fact, a title suit bearing T.S. No. 337 of 1990 of the City Civil Court Calcutta has already been Instituted by some of the trustees against the defendant No. 1 seeking Inter alia his eviction from the disputed premises and also for Injunction from letting out the disputed premises for marriage or other ceremonies. There was an Interim injunction passed in the said suit which was subsequently vacated on February 15, 1993. Here, posing for a moment, a pertinent question arises whether there could be two different forums tapped separately for one and the same cause of action, that is, for eviction of defendant No.1 from the disputed premises. Most certainly, no procedure of law would permit this. It would not be out of place to mention here that this bench while passing an order of stay with regard to the Impugned order, also directed on September 1, 1993 that the hearing of the aforesaid suit pending before the City Civil Court at Calcutta with respect to the self-same subject matter would not be prevented by the stay order.
9. Thus, it is obvious on the record that the parties have joined Issued with regard to the eviction from the disputed premises in a regular suit pending before the City Civil Court at Calcutta and, there, the validity of the deed of trust is very much under dispute. Furthermore, from the chequered history of the management of the Debuttar Estate as already noticed above, it has been made abundantly clear that the controversy has to be determined not only Independently construing the deed of trust rather the matter has to be gone into , while appreciating all the deeds, be it either deed of trust or the deed of family settlement or even the decree passed at one or the other stage in earlier suits. A court of law would certainly be required to go into all those deeds and the decree so as to arrive at a conclusion that which one out of those would be deemed to be superseded of which one of those would actually govern the management of the Debuttar Estate.
10. The peculiar facts and the circumstance of the case also arise an intricate and mixed question of facts and law which could be determined only in a regular suit and such regular suit was already pending. In that view of the matter, the trial court appears to have rightly taken an abundant precaution not to entertain the originating summons so as to determine some of the Issues raised herein and to leave some other points in Issue to be determined in some separate proceedings to go in any other court of law. Whereas the originating summons sought to determine the Issues between the parties only on construing one or the other clause of the Deed of Trust, the factual score of the matter on the whole would require to construe also the Deed of Family Settlement as also the effect of the Award, published in the earlier suit along with the Deed of Trust. In any view of the matter the dispute between the parties could be resolved only through the process of the pending regular suit before the City Civil Court. Calcutta and we would most certainly abstain ourself from expressing any opinion on the merit of the facts and the interpretation of law Involved.
In the premises this appeal has no merit and, accordingly, it is dismissed. There shall be no order as to costs.
U.C. Banerjee, J.
11. I agree
12. Appeal dismissed