Calcutta High Court (Appellete Side)
Mihir Kumar Talukdar vs Pradip Kumar Sengupta & Ors on 28 February, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present: The Hon'ble Justice Dipankar Datta
C.O. No. 4052 of 2010
Mihir Kumar Talukdar
Versus
Pradip Kumar Sengupta & ors.
For the Petitioner : Mr. Joydeep Kar
Mr. B. Bhattacharyya
For the respondent no.1 : Mr. Usha Nath Banerjee
Ms. K. Bhattacharyya For the respondent nos.2 : Mr. Ratnanko Banerjee and 3 Ms. D. Bhattacharyya Heard on : January 25 and 28, 2011 Judgment on : February 28, 2011
1. The petitioner and the opposite party no.1 are co-plaintiffs in Title Suit No.54 of 2005, pending on the file of the learned Civil Judge (Senior Division), 2nd Court, South 24 Parganas at Alipore, wherein opposite party nos. 2 and 3 are defendants 1 and 2.
2. It is a suit for declaration and permanent injunction. The co-plaintiffs had been employed under the opposite party no.2 for more than three 2 decades. While in service, they had purchased substantial shares of the opposite party no.2. However, feeling aggrieved by and dissatisfied with the attempt of the opposite party no.2 to compel them to surrender their shares, the suit had been instituted.
3. Since the nature of relief claimed in the suit would have a bearing on the outcome of this revisional application, the prayers are set out hereinbelow :
"a) Declaration that Articles 11 and 14 of the Articles of Association of the defendant No.1 and 2 respectively are illegal, unsustainable and wrongful;
b) Declaration that the plaintiffs are entitled to retain and possess their respective shareholding of Equity shares of the defendant No.2 forever as owners of those shares and that the defendants are forbidden in law to compel the plaintiffs to surrender such share holdings on any ground including the ground of termination of service, if any;
c) Declaration that the plaintiffs are entitled to and the defendants are duty bound to pay all dividends, benefits and entitlements attached in the equity shares belonging to the plaintiffs;
d) Permanent injunction restraining the defendants and each one of them and/or their respective managements from treating the equity shares belonging to the plaintiffs surrendered and from transferring and/or alienating the said shares to any other person or persons in any manner whatsoever and/or from striking out the names of the plaintiffs from the Register of Member of the defendant No.2;
e) Receiver;
f) Costs;
g) And/or to pass such other or further order or orders to which the plaintiffs are entitled to and as to the Ld. Court may seem fit and proper; "
4. The co-plaintiffs had the occasion to carry an order dated March 31, 2008 passed by the learned Trial Judge in appeal (Misc. Appeal No.278 of 2008) before the learned Additional District Judge, 12th Court, South 24 Parganas, at Alipore. The defendants too, feeling aggrieved by a 3 portion of the said order, preferred an appeal (Misc. Appeal No.196 of 2008). The appeals are pending before the learned Additional District Judge, 12th Court, South 24 Parganas at Alipore.
5. The petitioner due to personal inconveniences did not wish to proceed further with the plaintiffs' appeal and, accordingly, filed an application under Section 151 of the Code of Civil Procedure (hereafter the Code) for expunging his name from the records of such appeal. By order no. 16 dated 16.1.2010, the learned Additional District Judge allowed the prayer of the petitioner and directed that his name be expunged.
6. During pendency of the appeals, the inter-se differences between the petitioner and the opposite party nos. 2 and 3 were amicably settled, out of Court, and the petitioner did not wish to proceed with the suit. Accordingly, he filed an application under Order 1 Rule 10 of the Code before the learned Trial Judge for deletion of his name from the array of plaintiffs of T.S. No. 54 of 2005.
7. The learned Trial Judge considered the said application on March 15, 2010 and passed the following order:
"Both parties file hazira.
Today is fixed for hearing of application under O.1 Rule 10(2) of the C.P.C. filed by the plaintiff No.2 Mihir Kumar Talukdar on 10.3.10. Since original record was forwarded to the Court of ld. Addl. Dist. & Sessions Judge, 12th Court, Alipore in connection with Misc. Appeal No.196/08 and the same has not yet been received back by this court, it is not possible to dispose of the instant application. Let the application under O.1 R 19(2) C.P.C. be heard on r eceipt of Original record. To date."4
8. Failing to obtain an order on such application, the petitioner filed a similar application under Order 1 Rule 10(2) of the Code before the learned Additional District Judge on April 16, 2010 in connection with the pending appeal of the opposite parties 2 and 3.
9. The application was contested by the opposite party no.1 being plaintiff no.1. He alleged that the application had been collusively filed and for perpetrating a fraud on the Court to nullify his claim. Referring to Order 23 Rule 1(5) of the Code, the opposite party no.1 contended that without his consent, the petitioner could not abandon his claim or part thereof or withdraw from the suit. Furthermore, the appeal having been preferred against an interlocutory order of injunction dated March 31, 2008, its scope was limited and, consequently, there was no scope in the appeal for deletion of the name of the petitioner (plaintiff no.2) from the cause title of T.S. 54 of 2005 pending before the learned Trial Judge.
10. The application was heard on contest and stood rejected by order no.85 dated September 17, 2010. The order reads as follows:
"Both side are present. The hearing is over a petition filed U/or. 1 rule 10(2) of C.P.C. by respondent No.2 praying for deleting his name from the suit on the ground principally that in misc. Appeal no.278 of 2008 pending in this court and arising out of common suit being Title Suit No.54/05 where the present petitioner is arranged as appellant no.2, his name has been deleted by order dt. 16.1.2010. The appellant by filing a petition has supported the prayer of respondent No.2 but the respondent No.1 has resisted the prayer u/or 1. R. 10(2) C.P.C. by filing written objection.
Both the appeals are preferred out of a common order passed by ld. Trial court granding status quo over the possession of shares of the plaintiffs, herein the respondent till disposal of the suit. Now, consulting the order dt. 16.1.10 in Misc. Appeal No.278/08 it is found that the prayer of the present respondent no.2 (there the 5 appellant no.2) has been allowed u/or.1 rule 10(c) in connection with the appeal by deleting his name from the Memo of appeal in term of his specific prayer to that effect. But in the instant appeal the respondent has prayed for delating his name from the plaint, which cannot be done during the pendency of hearing of the appeal. Accordingly the petn. u/or 1 rule (2) of C.P.C. dated 16.4.10 filed by the respondent No.2 is rejected on contest.
To date."
11. The petitioner calls in question this order in this application under Article 227 of the Constitution.
12. Appearing in support of the application, Mr. Joydeep Kar, learned advocate contended that the objection raised by the opposite party no.1 by referring to Order 23 Rule 1(5) of the Code is frivolous. According to him, the said provision requires reading in a reasonable manner and keeping in mind the purpose it seeks to achieve. It is only in those cases where there are several plaintiffs and withdrawal of one plaintiff from the suit would have an adverse effect on the right to relief claimed by the other plaintiffs that Order 23 Rule 1(5) would come into play, and not otherwise. Deletion of the name of one plaintiff when right to relief claimed by the other plaintiff(s) survives is not governed by the said provision.
13. Referring to the facts of the case, it was submitted that the petitioner and the opposite party no.2 had arrived at a settlement in respect of the shares of the former without any vestige of affectation of the right to relief claimed by the opposite party no.1. Since the right of the opposite party no.1 would not be infringed in any manner if the prayer of the petitioner had been allowed, the learned appellate Court committed 6 gross error of jurisdiction in rejecting the petition filed by the petitioner. It was further submitted, in view of Section 107 of the Code, that the learned appellate Court could exercise all the powers that could be exercised by the trial Court in respect of a suit instituted before it.
14. In support of his submissions, Mr. Kar placed reliance on the decisions reported in AIR 1927 Bombay 244 (Nilappagouda Goudappagouda & ors. v. Basangouda Sangangowda & ors.), AIR 1943 Calcutta 427 (Baidyanath Nandi & ors. v. Shyama Sundar Nandi & ors), and (2009) 6 SCC 194 (Sneh Gupta v. Devi Sarup).
15. He, accordingly, prayed for an order to set aside the order under challenge and for further order directing deletion of the name of the petitioner from the array of the plaintiffs of T.S. No.54 of 2005.
16. Per contra, learned advocate for the opposite party no.1 Mr. Usha Nath Banerjee contended that having regard to the terms of Order 1 Rule 10(2) of the Code, the application filed by the petitioner before the appellate Court was not maintainable.
17. Next, it was submitted that the name of the petitioner having been deleted from the array of appellants of Misc. Appeal No. 278 of 2008 he could not have applied for striking off his name once again.
18. Referring to Order 23 Rule 1(5) of the Code, he submitted that the provisions are plain and clear and in view thereof the Court had no jurisdiction to permit the petitioner to withdraw from the suit without the consent of the opposite party no.1.
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19. In support of the aforesaid contention, reliance was placed by Mr. Banerjee on the decisions reported in AIR 1956 Madras 15 (Thayammal v. Rangaswami Reddy & ors.), AIR 1988 Kerala 28 (K.I. Mohanan v. Smt. Jeejabai), AIR 1968 SC 111 (Hulas Rai Baij Nath v. Firm K.B. Bass and Co.) and Manu/GH/0302/2004 (a decision of the Gauhati High Court dated March 23, 2004 in Asma Khatoon & anr. vs. Md. Mahmad Ali & ors.).
20. Countering the submission of Mr. Kar, Mr. Banerjee submitted that Section 107 of the Code would not be applicable in the present case since the appellate Court was only dealing with an interim application under Order 39 Rules 1 and 2 of the Code.
21. While concluding, Mr. Banerjee in his usual fairness (in reply to a query of Court) submitted that at best the petitioner could be transposed as a defendant in the suit.
22. He accordingly prayed for disposal of the application keeping in view these submissions made by him.
23. I have heard the parties at length.
24. Since the parties have advanced elaborate submissions on the scope, ambit and applicability of Order 23 Rule 1(5) of the Code, I propose to consider such issue first.
25. Order 23 Rule 1(5), read literally, leaves no iota of doubt that a plaintiff without the consent of the co-plaintiff(s) cannot be permitted by the Court to abandon his claim in the suit/withdraw from the suit. 8
26. Of all the cited decisions on the point as to whether consent of the co-
plaintiff would be imperative for permitting the applicant/plaintiff from abandoning his right to continue with the action, or withdrawing from the suit without reserving his right to institute a fresh suit, only one decision [Baidyanath (supra)] is binding on me as a precedent while the others are of persuasive value only.
27. In Baidyanath (supra), a Division Bench of this Court was considering whether Order 23 Rule 1(4) of the Code, as it then stood, prevented some of the plaintiffs in the suit to withdraw themselves from the suit without the consent of the rest and further as to whether apart from Rule 1(4), the Court was competent, in the interest of justice, to refuse one of several plaintiffs to withdraw or impose other restriction on him if such course is prejudicial to the interest of the other plaintiffs. Order 23 Rule 1 (4), as it then stood, read as follows :
"Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
28. The suit was instituted by a large number of persons, purportedly shebaits of a certain deity. The first prayer was for a declaration that the first plaintiff had been duly elected as one of the managing shebaits of the deity in place of the first defendant who had been validly removed by the majority of the shebaits in accordance with the provisions of the deed of endowment. The second and the alternative prayer was for removal of the first defendant as one of the managing shebaits by the 9 Court, if he had not been validly removed by his co-shebaits already, on grounds of misappropriation and breach of trust. Some of the plaintiffs, after institution of the suit, realised that protracted litigation was sure to ruin the debottar estate. While the application of the tenth plaintiff was allowed without opposition from the other plaintiffs, applications of certain other plaintiffs were rejected by the trial Court for want of consent from the rest of the plaintiffs and they were not allowed to withdraw from the suit.
29. After a detailed survey of the law on the subject and on consideration of several judicial pronouncements in connection therewith, Hon'ble B.K. Mukherjee, J. (as His Lordship then was) speaking for the Bench had the occasion to observe as follows :
"*** In my opinion, the conclusion can properly be drawn that when one of several plaintiffs desire to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co-plaintiff is not necessary and sub-r. (4) of R.1 of O.23, Civil P.C., has no application to such cases."
30. However, I do not wish to rest my decision by treading the easy path of following the decision in Baidyanath (supra). Order 23 Rule 1 has been amended and it would be proper to give a decision considering the provisions thereof as it now stands. Based on my understanding of the scheme of Order 23, I am loath to read Rule 1(5) literally and would proceed to embark on an interpretative exercise to ascertain as to whether Rule 1(5) really means what it says or not.
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31. Abandoning a suit being a voluntary action of the plaintiff, ordinarily a Court does not refuse the prayer for abandonment if one does not wish to continue with the suit and relinquish his claim once and for all. The object of Rule 1 and its sub-rules embodied in Order 23 is clear : the plaintiff should not be allowed opportunity to commence trial afresh unless there be sufficient grounds therefor and the defendant is not unduly prejudiced. It is always open to the Court to examine, while permitting a party to abandon his suit or withdraw therefrom, as to whether he has derived any material advantage by virtue of any interim order that was passed thereby placing the defendant in a disadvantageous position.
32. However, a decision on the issue of applicability of Order 23 Rule 1(5) would necessitate a close examination of the bundle of facts pleaded in the plaint giving rise to the plaintiffs' actionable claim and the relief that they seek therein. The provisions contained in Order 1 Rule 1 of the Code providing for situations where several persons may join in a suit as plaintiffs also require due consideration. The determining factor would be, whether the right to sue is vested jointly in all the plaintiffs or not. In such a case, where right to sue is vested jointly, a Court would be denuded of jurisdiction to permit withdrawal/abandonment by one plaintiff without the consent of the co-plaintiff. On the contrary, in the event the reliefs claimed are severable in the sense that abandonment of relief claimed by one plaintiff would not affect in any manner the right of 11 the other plaintiff to relief on establishment of the plaint case, there is no reason as to why the plaintiff seeking to abandon his claim in the suit, or withdraw from the suit without asking for permission of the Court to file a fresh suit, should be made to continue lending his name in the proceedings as plaintiff or as a transposed defendant only because the co-plaintiff does not consent to such abandonment of the claim or withdrawal from the suit without any justification therefor. Rule 1(5), having regard to the scheme of the other sub-rules of Order 23, would call for purposive construction if the situation of a particular case so demands.
33. At this juncture, I may remind myself of the purposive approach adopted by Lord Denning in the decision in Seaford Court Estates Ltd. v. Asher reported in (1949) 2 All ER 155, which reads as follows :
"The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature.... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would 12 have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
(underlining for emphasis by me)
34. I, therefore, hold that if one of several plaintiffs having an independent right to relief and which is severable from the right claimed by the other plaintiff(s) seeks to abandon his claim in the suit once and for all without reservation and such abandonment does not affect the right to relief of the co-plaintiff(s), his/their consent would not be a sine qua non and the learned Court may, in its discretion, grant the prayer made before it on such terms as it considers just and proper supported with reason. Such an interpretation is intended to 'iron out the creases' and not alteration of the material of which the Code is woven.
35. Turning attention to the case on hand, if the opposite party no.1 and the petitioner held the shares of the opposite party no.2 in their joint names and the opposite party no.2 compelled them to surrender the same, there would be only one cause of action and withdrawal of the petitioner from the suit could be detrimental to the interest of the opposite party no.1. In such a case, the Court would be justified in refusing permission to withdraw/abandon without the consent of the co-plaintiff. However, it appears from the plaint that the shares forming subject matter of the suit are in the individual names of the two plaintiffs and that the plaintiffs having independent but identical right 13 to sue had joined in one suit because that was permissible in terms of Order 1 Rule 1.
36. The effect of granting permission to the petitioner to withdraw from the suit would be that the parties i.e. the opposite parties herein would be left in much the same position they had occupied on the date the suit had been instituted. Carriage of proceedings would then solely rest on the opposite party no.1 and the settlement arrived at between the petitioner and the opposite party no.2 would have no bearing insofar as question of right of the opposite party no.1 to relief is concerned.
37. Despite the above observations, I am not inclined to interfere with the order under challenge. The petitioner had applied under Order 1 Rule 10(2) of the Code. The said provision empowers the Court to strike off the name of any party improperly joined, inter alia, as plaintiff. The petitioner himself having instituted the suit along with the opposite party no.1, it is not a case where he has been improperly joined. Order 1 Rule 10 (2) would, therefore, have no application here. Rejection of the petitioner's application by the order under challenge is unexceptionable. It is upheld.
38. However, in the interest of justice, I make it clear that nothing in this order shall preclude the petitioner to approach the trial Court with a proper application for abandoning his claim in the suit. If such an application is filed and the appellate Court is made aware of the same, it shall release the records of T.S. No. 54 of 2005 and the same shall be 14 transmitted to the trial Court without any delay whereupon the trial Court shall proceed to consider the petitioner's prayer in accordance with law and dispose of the same as early as possible, but not later than a month from the date of receipt of the records from the learned appellate Court. Since the High Court in exercise of power under Article 227 is not supposed to influence the trial Court to pass an order in a particular direction, respecting the trial Court's independence I make it absolutely clear that the trial Court may take into consideration any other circumstance, not covered by this judgment, which in its opinion could grant legitimacy to the objection of the opposite party no.1 that the petitioner's prayer ought not to be granted in exercise of its discretionary powers.
39. The application stands disposed of, without order for costs.
40. Urgent photostat certified copy of the judgment and order, if applied for, be given to the parties at an early date.
(DIPANKAR DATTA, J.)