Calcutta High Court (Appellete Side)
For The vs Sk. Sfaiuddin Ahmed & Ors on 25 August, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
F.M.A. 447 of 2016
with
CAN 4020 of 2016
with
CAN 7336 of 2017
With
F.M.A. 3765 of 2016
with
CAN 2396 of 2017
with
CAN 11725 of 2015
For the Appellant : Mr. Saktinath Mukherjee,
in F.M.A. 447 of 2016 Mr. Asit Baran Raut,
& Respondent No. 7 in Mr. Asit Kumar Chowdhury,
F.M.A. 3765 of 2016. Mr. J. Banerjee,
Mr. Tuhin Subhra Raut.
For the Appellants : Mr. Aniruddha Chatterjee,
in F.M.A. 3765 of 2016 Mr. Surya Prasad Chattopadhyay.
& Respondent Nos. 6 &
7 in F.M.A. 447 of 2016.
For the Plaintiffs/ : Mr. Tapan Kumar Tewari,
Respondent Nos. 1 to Mr. Kumar Jyoti Tewari,
5 in both the Appeals. Mr. Tarun Jyoti Tewari,
Mr. Abhisek Saha.
For the Added : Mr. Anit Kumar Rakshit,
Respondent Nos. 11 Mr. Sailendra Sekhar Bayerd.
to 15 in F.M.A. 447 of
2016 & Added Respon-
dent Nos. 8 to 12 in
F.M.A. 3765 of 2016.
Heard On : 19.07.2017, 12.07.2017, 09.08.2017 &
24.08.2017
Judgement On : 25th August, 2017.
Jyotirmay Bhattacharya, J.
Re: CAN 7336 of 2017 In FMA 447 of 2016 This application has been taken out by the appellant for recording the death of Rita Seal alias Nirmala Seal, the respondent no.1 and also for recording that her legal heirs are already on record as respondent nos. 3 and 4 viz., Shukla Bhar and Jharna Sanyal respectively.
Since the legal representatives of the said respondent no.1 viz., Rita Seal alias Nirmala Seal are already on record, formal application for substitution is not needed. Accordingly, the prayer for recording the death of the respondent no.1 viz., Rita Seal alias Nirmala Seal is allowed.
The concerned department is directed to note the death of the respondent no.1 viz., Rita Seal alias Nirmala Seal with a further note that her heirs are already on record as respondent nos. 3 and 4.
The application for making note of death being CAN 7336 of 2017 is, thus, disposed of.
Re: CAN 2396 of 2017 In FMA 3765 of 2016 One of the defendants viz., Reba Dey died leaving behind her husband Tapan Dey and only son Anjan Dey. They are all major and sui juris. The legal representatives of the said Reba Dey are already on record as they have been brought by way of substitution earlier in the place of the respondent no.6.
Since the added respondents viz. Mita Roy, and four others have already been added as proforma respondents in the appeal on an application filed by them no future order need be passed for adding those added defendants as respondents in this appeal. One of the added respondents viz. Gouri Das died during the pendency of this appeal and her heir namely Rathindranath Das is already on record. As such, the concerned department is directed to note the death of Gouri Das with a further note that her son is already on record.
The application being CAN 2396 of 2017 is, thus, disposed of. F.M.A No.446 of 2016
& F.M.A No.3765 of 2016 These two First Miscellaneous Appeals are directed against a common judgment and order passed by the learned Trial Court. One of such First Miscellaneous Appeals is directed against an order being no. 44 dated 24th September, 2015 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta, in Title Suit No. 1211 of 2013 at the instance of the defendant no. 4/appellant.
The respondent nos. 6 & 7, namely, Smt. Sikha Das and Silpa Paul, as appellants filed another First Miscellaneous Appeal being F.M.A.T. 1355 of 2015 challenging the very same order of the learned Trial Judge which is impugned in the other appeal as mentioned above.
Both the appeals were admitted. Since both the appeals are directed against a common impugned order, we, on the request of the learned Counsel appearing for the parties, have decided to dispose of both the aforesaid appeals analogously by dispensing with the requirement of filing paper books in this appeal as the documents which are necessary for disposal of these appeals are made available to us by the learned counsel appearing for the appellant in F.M.A.T. 1355 of 2015; and copies thereof have also been given to the learned Counsel of the other parties.
By the impugned order, the plaintiffs' application for temporary injunction was allowed by the learned Trial Judge on contest. Ad-interim order of injunction which was passed in said suit vide order no. 3 dated 19th September, 2013 was made absolute. By the impugned order, the parties were directed to maintain status quo over the suit property regarding nature, character and possession as on 19th September, 2013 till the disposal of the suit. Such interim order was passed in a suit for partition filed by the plaintiffs/respondents against Smt. Sikha Das & three others, namely, Smt. Silpa Paul, Smt. Reba Dey and Sri Asish Roy. While the application for temporary injunction filed by the plaintiffs was pending before the learned Trial Court, two applications were filed by the applicants praying for their addition as defendants in the said suit claiming themselves as co-sharers in the suit property either by way of purchase or by way of inheritance from the erstwhile owners thereof.
Since the injunction application was awaiting consideration before the learned Trial Judge for a along time, an application under Article 227 of the Constitution of India was filed by the defendant no. 4, namely, Sri Asish Roy, praying for issuance of direction upon the learned Trial Judge for expeditious disposal of the plaintiffs' application for temporary injunction. While disposing of the said application being C.O. 1698 of 2015, a learned Single Judge of this Court by order dated 26th June, 2015 directed the learned Trial Judge to hear out and decide the pending application for temporary injunction as expeditiously as possible and preferably within a period of thirty days from the date of communication of the said order or soon thereafter as possible, without granting any unnecessary adjournment to either of the parties. It was further directed that hearing of the other applications in the suit may be deferred by the learned Trial Court, if necessary, in the mean time.
In view of such direction passed by this Court in the aforesaid Civil Revision Application, the learned Trial Judge took up the plaintiffs' application for temporary injunction for hearing by deferring the hearing of the applications for addition of parties filed by some stranger intervenors/applicants.
The learned Trial Judge ultimately held that the plaintiffs have succeeded in making out a strong prima facie case and the balance of convenience and inconvenience is in favour of the plaintiffs for grant of injunction. Accordingly, the plaintiffs' application for temporary injunction was allowed. Ad interim order of injunction which was passed by the learned Trial Judge was made absolute, by the impugned order.
The legality and the propriety of the said order is under challenge in both these aforesaid appeals at the instance of the appellants as mentioned above.
Let us now consider the merit of the instant appeal in the facts of the instant case.
Mr. Mukhrjee, learned senior counsel, appearing for the appellant in F.M.A. 447 of 2016 contends that the said impugned order is erroneous primarily for the reason that when the plaintiffs' pleading in the plaint shows that some of the admitted co-sharers have not been joined as party in the partition suit, the suit itself is not maintainable and as such, no interim order could have been passed in such a suit. Mr. Mukherjee has also drawn our attention to the order- sheet of the said suit to bring to our notice that while passing the impugned order of injunction, the Court was aware about the pendency of the application for addition of party filed by the stranger applicants.
We find from the order-sheet that pendency of these applications for addition of parties was recorded by the learned Trial Judge in the handwritten portion of the order-sheet written immediately after the impugned order was recorded.
Mr. Mukherjee has also drawn our attention to the order passed by the learned Trial Judge whereby those applications for addition of parties were subsequently allowed and thereby those applicants were added as defendants in the said suit. By drawing our attention to the order passed on the said applications for addition of parties, Mr. Mukherjee has brought to our notice that even the plaintiffs/respondents did not even oppose the applicants' prayer for their addition as defendants in the said suit He, thus, argued that when admittedly some of the co-owners were left out in the partition suit on the date when the application for temporary injunction was taken up for hearing, the learned Trial Court, according to him, ought not to have passed any order of temporary injunction in such a suit which, as it was framed as on the date when the injunction application was taken up for consideration, was not maintainable.
Mr. Mukherjee, further, argued by referring to the pleadings made out in the paragraph 8 of the plaint that at least one of the co-sharers, namely, Sharmila Das, wife of Sujoy, was not impleaded as a party in the partition suit. He, thus, submits by referring to a judgment of this Hon'ble Court in the case of Sk. Riyasat Ali - versus- Sk. Sfaiuddin Ahmed & Ors., reported in 2016(2) ICC Calcutta 1, that no such interim order of injunction should have been passed in a suit for partition where admittedly some co-sharers are not made party in the suit.
Mr. Mukherjee thus invites this Court to interfere with the impugned order. Mr. Rakshit, learned advocate, appearing for the added defendants submits that prior to the filing of the instant partition suit, the present plaintiffs filed another suit being Title Suit No. 427 of 2012 seeking declaration of their shares in the suit property and for injunction for restraining his clients, namely, Renuka Das & Seven others from transferring and/or dealing with and/or parting with possession of the suit property which is identically same with the suit property mentioned in the plaint of the instant suit. By drawing our attention to the objection filed by Mr. Rakshit's clients in connection with the injunction proceeding before the learned Trial Court, he pointed out that in the earlier suit, the plaintiffs themselves admitted his clients as their co-sharers and as such his clients should have been impleaded as defendants in the present partition suit, filed by the plaintiffs/respondents.
Mr. Rakshit, thus, submits that when the admitted co-sharers were not before the learned Trial Court on the date when the injunction application was taken up for consideration by the learned Trial Judge, the learned Trial Judge ought not to have passed an order of injunction in the said suit. He, thus, also prayed for setting aside the impugned order.
Mr. Tewari, learned Advocate appearing for the plaintiff/respondent refuted such submission of the learned Counsel critcising the judgment of the learned Trial Court, by drawing our attention to the reply filed by his client in connection with the present injunction proceeding before the learned Trial Court to demonstrate that his client never filed the earlier suit being Title Suit No.427 of 2012. He seriously argued that the earlier suit was not filed by his client.
He thus, contends that when the said suit was not field by his client, the statements made in the plaint of the said suit are not binding upon his clients.
He tried to impress upon us that his client never admitted Sharmila Bhadra, Mita Roy, Santa Das, Rathindranath Das, Gouri and Indrani as their co-sharers. Mr. Tewari thus submits that since they are not the co-sharer of the plaintiff they were not added as defendants in the said suit.
It is also brought to our notice by Mr. Tewari, learned advocate that some of such persons, viz., Sharmila Bhadra, Mita Roy, Santa Das, Ratindhranath Das and Indrani were added as defendant in the present suit, on the application filed by them seeking their addition before the learned Trial Judge. He pointed out that Sharmila Bhadra and Santa Das are the successors from the branch of Jugol Kishore Das and Indrani is the successor from the branch of Bhupendranath Das. Both Jugol and Bhupendra were the brothers of Dhirendranath.
The plaintiffs are claiming title in the suit property through Dhirendranath. As per pleading made out in the plaints, by virtue of partition amongst the six brothers of Dhirendranath, Dhirendranath got the suit property exclusively and as such the other brothers of Dhirendranath cannot be a co-sharer in respect of the suit property.
Mr. Tewari, learned advocate thus submits that when the plaintiffs do not admit them as co-sharers, the suit for partition is very well maintainable even in the absence of the successors of the brother of Dhirendranath and as such the injunction order passed by the learned Trial Judge does not call for any interference for not joining them as parties in the suit on the date when the application for injunction was taken up for hearing and similarly the successors of the other brother of Dhirendranath cannot be the plaintiff's co-sharer in the suit property.
He, thus, supported the impugned order and prayed for dismissal of both the appeals.
Let us now consider the merit of the instant appeal in the facts of the present case. Interim order of injunction is always passed in aid of the suit. Thus, if it is found that suit itself is not maintainable, then the Court cannot pass any interim order injunction in such a suit. This is the reason for which the Court, while considering the application for temporary injunction, is also required to consider even prima facie the maintainability of the suit at the time of considering the plaintiffs' application for temporary injunction. Keeping in mind the aforesaid principle, let us now consider as to whether the suit as framed by the plaintiff is maintainable or not. Even without entering into the disputed question of fact as to whether Mr. Rakshit's clients are co-sharers of the suit property, let us first of all consider the pleading as made out by the plaintiff in the suit itself to find out as to whether the suit as framed is maintainable or not. It is rightly pointed out by Mr. Mukherjee, learned Senior counsel appearing for the appellants in one of such appeals that the plaintiffs themselves have admitted in para 8 of the plaint that one Sharmila Das wife of Sujoy Das is a co- sharer in the suit property.
Though Mr. Tewari tried to impress upon us that Sharmila Das never inherited any share in the suit property as she married for the second time after divorcing Sujoy, but we do not get any reflection of such submission in paragraphs 8 of the plaint. The dissolution of the marriage of Sharmila with Sujoy is not mentioned in the plaint. On the contrary it is categorically stated in the plaint that Sujoy who was the son of Rathindranath Das died issuless leaving his wife Sharmila Das who subsequently left the house after marrying for the second time after the death of her husband Sujoy. Reading the said pleading of the plaintiff we have no hesitation to hold that on the date when succession opened on the death of Sujoy, Sharmila being the widow of Sujoy inherited the interest of Sujoy in the suit property. Her subsequent marriage cannot disinherit her from the estate of Sujoy which she acquired by way of succession on the death of her husband viz. Sujoy. As such we are of the view that Sharmila Das still remains a co-sharer in the suit property and she having not been joined in the suit as defendant therein, the suit for partition is not maintainable as this Court has already held in the case of Sk. Riyasat Ali Vs. Sk. Safiuddin Ahamed & Ors. reported in 2016(2)ICC Cal 1 that when one of the admitted co-sharers transferred a portion of his share in the suit property, the purchaser automatically became co-sharers by virtue of purchase and as such in the absence of those co-sharers, the suit for partition cannot be held to be maintainable. It was further held therein that while dealing with a miscellaneous appeal even such defect in the suit cannot be rectified by the Appeal Court by adding those left out co-sharers as parties in the First Miscellaneous Appeal without them being added as parties in the suit. It is well-settled that the Appeal Court while dealing with a Miscellaneous appeal does not function as a regular Court of appeal taking up First Appeal matters. In view of the provision contained in Section 107 of the Civil Procedure Code the regular Appeal Court taking up first appeal matters retains all the jurisdictions of the Trial Court and as such the Appeal Court while dealing with the regular First Appeal can, no doubt, add any left out necessary party in the suit in exercise of its jurisdiction under Order 1 Rule 10(2) of Civil Procedure Code but such jurisdiction cannot be exercised by this Court while dealing with a miscellaneous appeal arising out of the interlocutory order passed in the suit.
Though Mr. Mukherjee tried to impress upon us that even the other two co-sharers viz., Sefali and Sundari being the heir of Ushangini having not been joined as defendants in the said suit, the suit for partition is also not maintainable but we cannot come to this conclusion at the stage without causing further investigation into such disputed question of fact. Though it is pleaded in the plaint that Ushangini died but who inherited the share of Ushangini is not mentioned in the plaint. The plaintiff has also not stated in the plaint as to who inherited the share of Sefali on her death. Even the written objection filed by the defendants is also silent as to the devolution of the interest of Sefali and Ushangini upon their heirs. As such at this stage without any further investigation we cannot come to the conclusion that for non-joinder of the heirs of Sefali and Ushangini the suit is not maintainable.
On perusal of the plaint we find that whatever interest Dhiren had in the suit property, that stood devolved upon his sons by virtue of the Will published by Dhirendranath which was subsequently probated and upon the death of two of the sons of Dhirendranath who died intestate bachelor, their living brothers and sisters inherited the suit property and at least one of the admitted co-sharers viz. Sharmila Das has not been joined as party in the partition suit.
We thus, conclude that the suit for partition, as it is framed, is not maintainable for non-joinder of at least one of the co-sharers viz., Sharmila Das and as such the learned Trial Judge in our considered view was not justified in passing any interim order of injunction in such a suit which as per the plaint pleadings is not maintainable due to non-joinder of necessary parties. In a suit for partition, the right of the parties cannot be dealt with by the Court even at the interlocutory stage in the absence of a co-sharer. We, thus, set aside the impugned order. Both the appears are, thus, allowed.
Before parting with we like to mention here that the appeal Court while dealing with a miscellaneous appeal cannot dismiss any suit by deciding any issue finally. As such we cannot even dismiss the suit at this stage on the ground of non-joinder of necessary party, particularly when such defect in the plaint is curable and any party can rectify such defect in the suit during the pendency of the suit. It is thus made clear that in the event such defects, as pointed out by us, are cured by the plaintiff by impleading all the co-sharers in the suit, the plaintiffs may renew their prayer for injunction in the suit and in the event such an application is filed by the plaintiff in the said suit, the learned Trial Judge will be free to decide plaintiffs' such application for injunction in his own wisdom and according to the law without being influenced by any of the observations made hereinabove.
Both the appeals are, thus, disposed of.
Since both the appeals are disposed of, in the manner as aforesaid, no further order need be passed on the stay application filed in connection with the appeal being FMA 3765 of 2016. The said application being CAN 11725 of 2015 is thus deemed to be disposed of.
Re: CAN 4020 of 2016 In view of the conclusion arrived at by this Court in this appeal, we do not feel any necessity to consider the appellant's application under Order 41 Rule 27 of the Code of Civil Procedure with this rider that in the event any occasion arises, upon initiation of a further injunction proceeding after the defect in the suit, is cured, the appellant may disclose those facts in his objection that may be filed by the appellant in connection with the said injunction proceeding and they may rely upon the same in course of hearing of the said proceeding.
The application being CAN 4020 of 2016 is, thus, disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.)