Tripura High Court
Unknown vs Sri Ranjit Kumar Sarkar on 5 December, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
RSA 60 of 2013
1(a) Smti. Kalpana Paul Sarkar
W/o Lt. Hiralal Sarkar
4/8 Lal Tila, Lal Tila Doulbari,
Doulbari, South Tripura, PIN-799145
1(b) Smti Champa Sarkar
W/o Sri Diparjit Baidya
129, Maniknagar Dajiling Tilla,
Gram-Sabroom-799145, Town/Vill-Sabroom,
Distirct-South Tripura-799145.
1(c) Kumari Dolan Sarkar
D/o Lt. Hiralal Sarkar
Resident of 91, Madhya Dualbari
Town/Vill-Doulabari, P.O. & P.S. Sabroom
Sub-Division-Sabroom
District-South Tripura, PIN-799145
2. Sri Ratan Sarkar
S/o Late Nibaran Sarkar
3. Sri Sachindra Sarkar
S/o Late Nibaran Sarkar
4. Sri Narayan Sarkar
S/o Late Nibaran Sarkar
All are residents of Vill-Doulbari, P.S. Sabroom,
Sub-Division-Sabroom, District-South Tripura.
.............Appellants
Vs
1. Sri Ranjit Kumar Sarkar
S/o Late Adhir Ranjan Sarkar
2. Sri Samarjit Sarkar
S/o Late Adhir Ranjan Sarkar
3. Sri Indrajit Sarkar
S/o Late Adhir Ranjan Sarkar
All are resident of Vill-Doulbari,
P.S. Sabroom, Sub-Division-Sabroom,
District-South Tripura.
4. Smt. Sebika Sarkar (Das)
W/o Sri Ranjit Das
Resident of Vill-Vivekanandapally,
P.S. Sabroom, District-South Tripura.
............... Respondents
RSA 60 of 2013 Page 1 of 12
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. SM Chakraborty, Sr. Advocate
Ms B Chakraborty, Advocate
For the respondents : Mr. D Chakraborty, Sr. Advocate
Mr. H Laskar, Advocate
Date of hearing & delivery
of judgment &order : 05.12.2017
Whether fit for reporting : Yes
JUDGMENT AND ORDER (ORAL)
Heard Mr. SM Chakraborty, learned senior counsel assisted by Ms B Chakraborty, learned counsel appearing for the appellants as well as Mr. D Chakraborty, learned senior counsel assisted by Mr. H Laskar, learned counsel appearing for the respondents.
2. At the outset, Mr. Chakraborty, learned senior counsel appearing for the appellant has submitted that both the trial court as well as the first appellate court has without properly addressing the matter relating to substitution of one of the plaintiffs, namely, Sudhir Ranjan Sarkar proceeded with the trial and finally caused serious prejudice to the legal heirs of Adhir Ranjan Sarkar, the sole plaintiff, who instituted the suit for declaration of title and permanent injunction in respect of the suit land as described in the schedule appended to the plaint.
3. The original plaintiff claimed that he was the proprietor of the suit property. Initially the suit was decreed in favour of the plaintiff but when the present appellants [the defendants] filed an appeal under Section 96 of the CPC against the said judgment the first appellate court interfered with the judgment and decree and set aside the same. But without passing any order on merit the matter was remanded for fresh trial. Against the said judgment of remand the plaintiff came to this Court by filing an appeal RSA 60 of 2013 Page 2 of 12 under Section 100 CPC, but the high court declined to interfere and affirmed the judgment of the first appellate court.
4. The trial court, i.e. the Court of the Civil Judge, Sr. Div. Sabroom, South Tripura on fresh trial decreed the suit in pursuance to the judgment dated 19.10.2012 delivered in the said suit being Title Suit No. 01 of 2011. Being aggrieved, the present appellants, who were the defendants in the suit, filed a first appeal under Section 96 CPC in the Court of the District Judge, South Tripura, Udaipur as it then was against the judgment and decree dated 19.10.2012.
5. After hearing, the first appellate court dismissed the said appeal being Title Appeal No. 13 of 2012 by the judgment dated 07.08.2013. The said judgment has been challenged in this appeal filed under Section 100 of the CPC by the defendant-appellants.
6. At the time of admission, the following substantial question of law was framed by the order dated 10.03.2014:
"Whether the judgment and decree passed by the trial court and the appellate court suffers from perversity?"
The appellant was given leave to raise any other substantial question of law at the time of hearing of the appeal.
7. Mr. SM Chakraborty, learned senior counsel appearing for the appellant has brought to the notice of this Court that one application was filed by the legal heirs of the sole-plaintiff namely, Adhir Ranjan Sarkar on 24.07.2012 for setting aside the abatement and substitution of the legal heirs alongwith a separate application for condoning the delay that had occurred in filing the said application.
RSA 60 of 2013 Page 3 of 12
8. The said application was allowed by the trial court by its order dated 29.08.2012. For purpose of reference the entire order dated 29.08.2012 from the LC Records is extracted:
"29.08.2012 Both the parties are represented by their respective Ld. engaged counsel.
Today was fixed for order on the petition of the plaintiff U/O XXII Rule (3) CPC praying for substitution of the legal representative of the deceased plaintiff Adhir Ranjan Sarkar together with petition U/O XXII Rule (2) CPC praying for setting aside abatement of the suit and also a petition U/S 5 of the Limitation Act for condonation of delay.
Against the petition of the plaintiff the defendant filed written objection.
I have also heard Ld. counsel appearing for both the parties on the petition.
Also perused the case record.
Ld. counsel for the defendant did not raise any objection at the time of hearing on the petition filed by the plaintiff.
It is seen that the sole plaintiff Adhir Ranjan Sarkar died leaving behind (1)Smt. Sailabala Sarkar, (Wife), (2)Rajit Sarkar, (3)Samarjit Sarkar, (4)Indrajit Sarkar, (5)Biswajit Sarkar all are sons and (6)Smt. Prativa Sarkar (Bhowmik), (7)Smt. Pratika Sarkar, (8)Smt. Lipika Sakar and (9)Smt. Sebika Sarkar, all are daughters as legal heirs. It is also seen that among the legal heirs named above Biswajit Sarkar has also expired and there is nothing on record to find out whether Biswajit Sarkar left behind him any legal heirs.
On perusal of the case record it is seen that on 21.09.2010 an order was passed substituting the aforesaid legal heirs of the sole deceased plaintiff Adhir Ranjan Sarkar. It is also seen that the legal heirs of deceased plaintiff namely Prativa Sarkar (Bhowmik), Pratika Sarkar and Lipika Sarkar relinquished their interest over the suit property in favour of Ranjit Sarkar, one of the legal heirs of deceased original plaintiff, and legal heirs namely Saila Bala Sarkar, Samarjit Sarkar, Indrajit Sarkar, Biswajit Sarkar and Sebika Sarkar by executing registered Power of Attorney authorized said Ranjit Sarkar to act and prosecute the case on their behalf. But in the order dated 21.09.2010 legal heirs Ranjit Sarkar was only substituted in place of the original deceased plaintiff Adhir Ranjan Sarkar but in the plaint the said substitution was not reflected.
So, it is abundantly clear that the legal heirs of the deceased plaintiff Adhir Ranjan Sarkar has already been substituted vide order dated 21.09.2010.
From the above scenario of the case I am of the considered opinion that no further substitution of the legal heirs of deceased plaintiff Adhir Ranjan Sarkar is required afresh. It is also seen that in course of proceeding of the case thereafter Sailabala Sarkar, W/O deceased plaintiff Adhir Ranjan Sarkar also expired leaving behind other legal heirs as left by Adhir Ranjan Sarkar.
Under the circumstances I invoke my jurisdiction U/S 151 of CPC treating all the petitions filed by the plaintiff as that of U/S 151 CPC and order that the name of the legalheirs of deceased plaintiff Adhir Ranjan Sarkar namely (1) Ranjit Sarkar, (2) Samarjit Sarkar, (3)Indrajit Sarkar and (4) Smt. Sebika Sarkar be recorded in place of the original deceased plaintiff Adhir Ranjan Sarkar.RSA 60 of 2013 Page 4 of 12
Sheristadar is accordingly directed to incorporate the names of the aforesaid legal heirs of Adhir Ranjan Sarkar, deceased plaintiff in theplaint.
Thus, all the petitions are disposed of accordingly. Fix 07.09.2012 for argument."
9. It is apparent from the said order that reference has been made to one order dated 21.09.2010 by which one Ranjit Sarkar was substituted in place of the original deceased plaintiff in terms of the registered deed of relinquishment (Nadabi Patra) and on the basis of registered deed of power of attorney. Since a reference has been made in the order dated 29.08.2012 to the said order dated 21.09.2010, the said order is extracted hereunder:
"21.09.2010 Today is fixed for substitution order for the Lt. plaintiff namely Adhir Sarkar who died on 21-06-2003 leaving behind of the 9(nine) survivors where notices were sent.
Today Ld. Advocate for the plaintiff Mr. Radhika Ranjan Basak has submitted Vokalatnama along with time petition for hearing on the issue described in the notice.
Today Mr. Ranjit Sarkar has appeared along with general power-attorney (IV-176) dt.18-12-2004, death certificate of Biswajit Sarkar, death certificate of Adhir Ranjan Sarkar, survival certificate of Lt. Adhir Sarkar, along with 02 nadabi patra i.e. registered "nadabi patra" vide No.1-800 dt.18.12.2004, another registered "nadabi patra" vide No.1- 607, dt. 30.09.2004.
Mr. Ranjit Sarkar now deemed to be plaintiff of this case in palce of Lt. Adhir Sarkar as per general power of attorney. Other legal representatives have given the power to this man to appear before the Court and to represent them in any Court of law.
So, the name of the plaintiff is to be substituted by Ranjit Sarkar in place of Adhir Ranjan Sarkar as per order 22 Rule 1.3.10A of the Code of Civil Procedure.
Both the plaintiff Ranjit Sarkar and the defendant Hiralal Sarkar have been asked to produce documents, oral or documentary, in respect of discussion on the order of issue still undecided which is:
"Whether the defendants namely Hiralal Sarkar and others have been possessing the suitland adversely since 1975 A.D. after ousting plaintiff Adhir Sarkar therefrom?"
Seen the process server report of the notices upon the LRs of Lt. Adhir Sarkar which were perfectly served.
Time is prayed by both the sides for hearing on the issue.
Heard and considered. Time is allowed.
Fix 05-10-2010 for further hearing and order."
10. Mr. Chakraborty, learned senior counsel appearing for the appellant has raised that both the orders dated 21.09.2010 and 29.08.20125 are unsustainable in law. The order dated 21.09.2010 is grossly illegal as there RSA 60 of 2013 Page 5 of 12 is no order for substitution of the legal heirs of the sole plaintiff, Adhir Ranjan Sarkar. One Ranjit Sarkar, who is one of the legal heirs (son) of Adhir Ranjan Sarkar has been substituted by virtue of the deed of relinquishment and Nadabi Patra and those deeds of power of attorney. While passing the order dated 29.08.2012 the trial court did not consider the inordinate delay in filing of the application for setting aside the abatement and the petition for substitution of the legal heirs.
11. Mr. Chakraborty, learned senior counsel appearing for the appellant has further submitted that there is no order for setting aside the abatement as caused by efflux of time in case of the plaintiff who died. As such, the entire proceeding is vitiated and hence the judgment and decree cannot survive the scrutiny of law.
12. Mr. D Chakraborty, learned senior counsel appearing for the respondents has referred to another order dated 08.09.2010 which reads as under:
"08.09.2010 Record is put up today as yesterday was Bharat bandh and Court was closed.
No step from the plaintiff side.
Ld. Advocate for the defendant Mr. G.C. Majumder is present along with HAzira of one of the defendant namely Narayan Ch. Sarkar.
Ld. Counsel for the defendant has verbally submitted that plaintiff Adhir Ranjan Sarkar had died recently. So he prayed for substitution of the legal represntativbes of the deceased plaintiff namely Adhir Sarkar. Process server's report also states death of Adhir Sarkar.
Heard and considered. Time is allowed for substitution of Late Adhir Sarkar by LRs.
Fix 21/09/2010 for substitution order."
13. According to Mr. Chakraborty, wrongly or rightly there was knowledge that the substitution was made on 21.09.2010 on the basis of the steps taken by one Ranjit Sarkar and as such there cannot be any abatement.
RSA 60 of 2013 Page 6 of 12
14. Having appreciated the submission of the learned counsel for the parties, this Court finds that so far the order dated 08.09.2010 is concerned, the counsel for the defendant had no business to come forward for substitution. Moreover, from a bare reading of the said order it appears that the application for substitution was made orally. Later on, such application was made for substitution by the defendant and for that purpose some accommodation was sought by the counsel for the defendant. Time was granted and accordingly the matter was posted on 21.09.2010.
15. It transpires from the records that on 13.09.2010, an application was filed under Order XXII Rule1A of the CPC disclosing the name of the legal heirs of the sole plaintiff. According to the said application the following persons are legal heirs of the deceased plaintiff:
i. Smt. Sailabala Sarkar (wife)
ii. Sri Ranjit Sarkar(son)
iii. Sri Samarjit Sarkar(son)
iv. Sri Indirajit Sarkar(son)
v. Sri Biswajit Sarkar(son)
vi. Smt. Prativa Sarkar (daughter)
vii. Smt. Pitika Sarkar(daughter)
viii. Smt. Lipika Sarkar(daughter)
ix. Smt. Sebika Sarkar(daughter)
16. Notice was issued on 13.09.2010 on the legal heirs of the sole plaintiff. On 21.09.2010, Ranjit Sarkar, one of the sons of the deceased plaintiff, appeared along with general power of attorney dated 18.12.2004, death certificate of Biswajit Sarkar, death certificate of Adhir Ranjan Sarkar, RSA 60 of 2013 Page 7 of 12 survival certificate of late Adhir Ranjan Sarkar along with Nadabi Patra dated 18.12.2004 and 30.09.2004.
17. The Court as it appears from order dated 21.09.2010 has observed that Sri Ranjit Sarkar is deemed to be the plaintiff of the case in place of Adhir Sarkar since deceased by virtue of the general power of attorney and accordingly, the name of Ranjit Sarkar was substituted and the case was directed to proceed.
18. Mr. Chakraborty, learned senior counsel appearing for the respondent has further referred to another order dated 09.08.2012. On that day, said Ranjit Sarkar submitted three separate petition under Order XXII Rule 3 of the CPC for making them party in the suit as legal representatives of the deceased plaintiff, under Order XXII Rule 9(2) CPC for setting aside the abatement of the suit as against the original plaintiff and an application under Section 5 of the Limitation Act read with sub-rule 3 of rule 9 of Order XXII of CPC for condonation of delay of 553 days in filing the application for setting aside the abatement under Section 22A Rule 9(2) of the CPC. As reflected in the order dated 24.07.2012, objections were filed against those applications. Thereafter, by order dated 29.08.2012 the following legal heirs of Adhir Ranjan Sarkar, the deceased plaintiff were substituted by the trial court, in place of the original plaintiff, Adhir Ranjan Sarkar purportedly in exercise of power under Section 151 CPC.
i. Ranjit Sarkar
ii. Samarjit Sarkar
iii. Indrajit Sarkar
iv. Smt. Sebika Sarkar
19. Mr. Chakraborty, learned senior counsel appearing for the respondents has submitted that for substantial ends of justice, the trial court RSA 60 of 2013 Page 8 of 12 had exercised its power under Section 151 CPC by way of curing the procedural defects and for substitution of the legal heirs of the original plaintiff who died on 21.06.2003.
20. Having regard particularly to the order dated 21.09.2010 and 08.09.2010, this court has been flabbergasted how such procedure could be invented by the trial court. First of all, applications were filed by one of the legal heirs namely, Ranjit Sarkar as is reflected in the order dated 24.07.2012 for (i) substitution of the legal representatives of the deceased plaintiff; (ii) for setting aside the abatement of the suit against the deceased plaintiff; and
(iii) for condonation of delay that occurred for not taking any steps within three months from the date of death, i.e. 21.06.2003. Apparently a huge delay had occurred when the applications were filed on 24.07.2012 and by the order dated 29.08.2012 neither the delay has been condoned nor on such condonation, abatement has been set aside for restoring the suit and substitution of the legal heirs of the original plaintiff was done. Moreover, there was no initiative when those applications were made on 24.07.2012 to review the order which was passed on 21.09.2010 only substituting one of the legal heirs namely, Ranjit Sarkar. When Ranjit Sarkar was already on record, a fresh petition had been filed by the legal heirs of the sole plaintiff, since deceased, for their substitution and for other purposes. It further emerges from the records that Ranjit Sarkar was also one of the petitioners who sought substitution in the matter.
21. The order dated 21.09.2010 even if has been passed wrongly or in contravention of the procedure as laid down in the CPC or is illegal for not bringing on record all the legal heirs of the sole plaintiff who died, unless is recalled by way of review or by interference by the superior court, the court does not have any jurisdiction either to make further substitution or to pass RSA 60 of 2013 Page 9 of 12 any other order of modification or expansion. Now the defendant- appellants have raised this issue quite seriously and they are entitled to raise such issue even in an appeal under Section 100 of the CPC. Section 105 of the CPC clearly provides that where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
22. The appellate court has the duty to look into those aspects. But when the substantial question of law was proposed, in this regard no substantial question of law was regretfully proposed. However, since leave was granted to the appellant to raise any other question this Court has taken up this question - whether the abated suit had restored by an order following the process of law or the suit be deemed as abated even now?
23. The question is very simple and the reply is available in the records. No order setting aside the abatement of the suit for death of the sole plaintiff on 21.06.2003 is available in the record. Moreover, the way the order dated 21.09.2010 has been passed the said process is unsustainable in law. When it is a question of substitution of the legal heirs, they are to be brought on record. By the power of attorney someone can represent the LRs in the proceeding but for having the power of attorney someone cannot claim that he has become the sole legal heir of the plaintiff. Moreover, the deed of relinquishment is an instrument for expressing relinquishment. Unless it is proved that by following the process of law the relinquishment was effected no cognizance of transfer can be recorded by a civil court inasmuch as by itself a deed of relinquishment cannot become an instrument of transfer. As such the said order dated 21.09.2010 is wholly illegal for the reasons, viz (i) there was no order setting aside the abatement; (ii) the legal heirs were not brought on record except Ranjit Sarkar; (iii) there was no RSA 60 of 2013 Page 10 of 12 order in respect of the condonation of delay; and (iv) there was not even a prayer for setting aside the abatement of the suit.
24. Further, when this Court has appreciated the order dated 29.08.2012, the skeleton of material irregularity sprang out. It is really surprising how a civil court can exercise its inherent power under Section 151 CPC when a definite procedure has been laid down in the CPC. For purpose of substitution a definite procedure has been laid down under Order XXII CPC and the legal heirs had made such application following that procedure. Even an application for setting aside abatement along with another application for condonation of delay had been heard. The trial court ignoring all such applications had passed the order in exercise of the inherent jurisdiction but those applications were not disposed of, by passing an appropriate order.
25. Having observed thus, this Court is of the view that the exercise of inherent power by the trial court for passing the order dated 29.08.2012 is grossly without jurisdiction and is liable to be interfered with and accordingly the same is set aside. As consequence thereof, the judgment and decree dated 19.10.2012 delivered in Title Suit 01 of 1991 and the judgment and decree dated 07.08.2013 delivered in title Appeal 30 of 2012 are set aside.
26. For substantial ends of justice, this Court is of further view that the matter shall be remanded, even though at the cost of the parties. Unless the fatal defects are cured by this Court, there shall be denial of justice by generating multiplicity in litigation.
27. Since both the orders dated 21.09.2010 and 29.08.2012 have been set aside, the legal heirs of the plaintiff will not find any difficulty to file a fresh application for (i) setting aside the abatement couched with the application for condonation of delay; and (ii) for substitution of the legal RSA 60 of 2013 Page 11 of 12 heirs following the procedure as laid down under Order 22 of the CPC. The delay as occurred after 21.09.2010 till the filing of those petitions as indicated may be considered by the trial court leniently as it is obvious that the legal heirs of the plaintiff were not properly counseled to follow the proper procedure.
28. In terms of the above directions, this appeal stands allowed. Draw the decree accordingly. Send down the LCRs thereafter.
29. Before parting with the records, the civil court is directed to complete the proceedings of the suit as expeditiously as possible. Requisite notice shall be issued to the parties within a month from the day when the records will be received by the trial court.
JUDGE lodh RSA 60 of 2013 Page 12 of 12