Calcutta High Court
Sri Deba Prosad Mazumdar vs Sri Man Mohan Mazumdar And Ors. on 11 April, 1997
Equivalent citations: (1997)2CALLT114(HC)
JUDGMENT Nirendra Krishna Mitra, J.
1. The respondent No. 1 as plaintiff filed a Title Suit in the City Civil Court, Calcutta against the appellant and the respondent No. 2 making the respondent No. 3 as a pro-forma defendant Inter alia, for a declaration that the decree passed in the ejectment Suit No. 514 of 1987 by the learned judge, XIth Bench, City Civil Court, Calcutta was void, inoperative and not binding upon the respondent No.l as also upon the respondent Nos. 2 and 3, for further declaration that the respondent No. 1 and the other respondents were joint tenants in respect of the suit premises, and for permanent injunction. The said suit was numbered as Title Suit No. 700 of 1988 of the court of the learned judge. III Bench, City Civil Court, Calcutta. It was alleged inter alia, in the plaint that one Shyama Das Chatterjee, since deceased, was the owner of premises No. 125, Keshab Chandra Sen Street, Calcutta and a tenancy was held in respect of the same premises in the name of the plaintiffs elder brother Nalini Kanta Majumdar jointly with his friend Purunjit Biswas. The plaintiff with his family came to Calcutta in or about the year 1946 and started living with his elder brother in the suit premises and though the rent was being paid by the plaintiffs mother, who lived in the suit premises along with her three sons namely, the plaintiff, the defendant No.l and also the proforma defendant but the rent receipts were continued to be issued in the name of Nalini Kanta Majumdar as he was the eldest brother. After the death of the plaintiffs mother in the year 1962, all the brothers used to contribute towards the rent, though the rent receipts were being issued by the landlord in the name of Nalini Kanta Mazumdar alone. In or about the year 1986, the defendant No. 2 who is the appellant before this court, purchased the suit premises by a registered deed of conveyance in a clandestine manner and behind the back of the plaintiff and the proforma defendant and in collusion with his father the defendant No.l, filed Ejectment Suit No. 514 of 1987 before the learned judge, Xlth Bench, City Civil Court, Calcutta and obtained an ex-parte decree on 9th February, 1986 by practising fraud upon the court. The said decree was put into execution and a false report was submitted by manipulation and/or collusion with the court bailiff that Nalini Kanta Mazumdar appeared to have given a mock resistance just to facilitate the prayer for police help. Though the plaintiff was a joint tenant of the suit premises, no notice of the suit was served upon the plaintiff. In the said Title Suit No. 700 of 1988, the plaintiff-respondent No.l also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure Inter alia, praying for temporary injunction against the defendant No. 2 appellant restraining him from proceeding further with the Ejectment Execution Case No. 9 of 1989 pending in the court of the learned judge, XI Bench, City Civil Court, Calcutta till the disposal of the suit. The said application was objected to by the defendant No. 2-appellant as well as by the respondent No. 2, Inter alia, denying the plaintiffs allegations regarding the Joint tenancy. The learned judge, IIIrd Bench, City Civil Court, Calcutta, however, by his Order No. 27 dated 28th February, 1989 allowed the plaintiff respondent No. l's said application for temporary injunction holding Inter alia, that the plaintiff had got a prima facie case to go to trial. The said order is the subject matter of challenge in the present appeal by the defendant No. 1 appellant.
2. Mr. Bidyut Banerjee, learned counsel appearing on behalf of the defendant No. 1 -appellant challenges the impugned order inter alia, on the ground the respondent No.l instead of filing a suit, should have filed an application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure in the execution proceeding pending at the time of institution of his suit, as it is well settled that even a third party who is not a party to the suit or to the decree passed in the suit, can file an application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure as the provisions of Order XXI Rule 101 of the Code of Civil Procedure states Inter alia, that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and as per the provisions of Order XXI Rule 103 of the Code, where any application has been adjudicated upon under Rule 98 or Rule 100 of the said Order XXI, the Order made thereon shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree. In support of his contentions Mr. Banerjee refers to two Supreme Court decisions one in the case of Bhanwar Lal v. Satyanarain and Anr. and the other in the case of Babu Lal v. Raj Kumar and Ors., .
3. Mr. Kasinath De, learned advocate appearing on behalf of the respondent No. 3, however, contends inter alia, that neither in the case of Bhanwar Lal v. Satyanarain and Anr. (supra) nor in the case of Babu Lal v. Raj Kumar and Ors. (supra), Supreme Court has observed that a third party to a suit in which a decree has been passed, cannot be filed a suit for a declaration that the decree is not binding upon him and he is bound to file application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure wherein only, he can challenge such decree. Mr. De further contends that if it is held as per the Judgments of the Supreme Court as referred to above, that an independant suit filed by a third party challenging the decree claiming an independing right of possession in the disputed property is barred, then the provisions of Order XXI Rule 104 of the Code would become nugatory and in support of his contention, he refers to the decision of the Supreme Court in the case of Krishena Kumar v. Union of India and Ors. .
4. The Supreme Court of India in its decision in Bhanwar Lal v. Satyanarain (supra) has held in clear terms that a third party to a suit or a decree also can file objection under Section 47 of the Code of Civil Procedure or an application under Order XXI of Rule 97 of the Code for filing of such application and/or objection by a third party, his dispossession from the suit premises is not a condition precedent. The apex court of India in its subsequent decision in Babulal v. Raj Kumar (supra) has not only reiterated its earlier view but has also gone one step further observing inter alia, as follows in paragraph '6' of its said decision;
"6. The controversy is no longer res Integra. This court in Bhanwar Lal v. Satyanarain considered the controversy and had held that even an application filed under Order 21 Rule 35(3) or one filed under Section 47 would be treated as an application under Order XXI Rule 97 and an adjudication is required to be conducted under Rule 93. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order XXI Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In para 7 thereof it was held thus: (SCC p.9) "In the above view we have taken, the High Court has committed grievous error of Jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25.5.1979 was made, the court should have treated it to be one filed under Order XXI, Rule 97(1) CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances, the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order XXI, Rules 35(3) and 97(2) and Order XXI, Rules 101 and 102 of CPC."
It would, therefore, be clear that an adjudication is required to be conducted under Order XXI, Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order XXI, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order XXI, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order XXI, Rule 98 which is an order and is a decree under Order XXI, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself......"
5. No doubt in the case of Osman Mullick and Ors. v. Md. Alauddin and Ors. 1993 Calcutta Weekly Notes 1069, Umesh Chandra Banerjee, J. while explaining inter alia, the scope and ambit of Rule 101 of Order XXI of the Code of Civil Procedure held in paragraph Nos. 15 and 16 of the said Judgment inter alia, as follows:-
"15. It is to be noted, Rule 101 conferred jurisdiction onto the court in dealing with the application provided however, there is an application under Rule 99 and in that event, all questions including the right, title and interest of the property is to be decided in the application itself and not by way of a separate suit. Can it be said that in the event there is no application and instead a suit has been filed to vindicate the rights of portion, Rule 101 would be a complete bar?
In my view, the answer would be in the negative. Language of Rule 99 makes the position clear since Rule 99 itself envisages-"He may make an application to the court. "Sub-rule (2) of Rule 99 provides that where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained and Rule 101 ought to be read as a provision therein contained. Incidentally it is to be noted that ouster of the jurisdiction of the courts in entertaining a Civil suit cannot be inferred lightly. Section 9 of the Code expressly grants such a right to the Civil Courts to have jurisdiction to try all suits of the civil nature.
16. In my view, the language used "may make an application" in Rule 99(1) read with sub-rule (2) and Rule 101 under order XXI is permissive in nature and in the event of there being an application under Rule 99, Rule 101 will have its full play but not otherwise. The ouster of jurisdiction as noted above can be had only on strict construction and it well settled that it is for the party who seeks to oust the Jurisdiction of a civil court, to establish his contention ... "
6. However according to us, the above decision of this Hon'ble Court has been lmpliedly overruled by the decisions of the apex court of India in Babulal v. Raj Kumar (supra).
7. So far as the contention of Mr. De that the provisions of Order XXI Rule 104 of the Code of Civil Procedure have become nugatory by the said judgment of the Hon'ble Supreme Court is concerned, the facts and circumstances of the present case make it quite clear that the provisions of Order XXI Rule 104 of the Code of Civil Procedure which Is quoted below, would not be attracted in the present case at all.
"104. Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of proceeding in which such order is made, If in such suit the party against whom the order under Rule 101 or Rule 103 is made as sought to establish a right which he claims to the present possession of the property."
8. In the present case, the suit filed by the plaintiff-respondent No. 1 in which the impugned order of temporary injunction has been passed, was not pending on the date when the execution proceeding being Ejectment Execution Case No. 9 of 1988 was filed by the decree holder defendant No. 1-appellant for execution the ejectment decree obtained in Ejectment Suit No. 514 of 1987 as would be clearly evident from paragraph No. 15 of the plaint itself filed in Title Suit No. 700 of 1988, which is quoted below;
"Para-15. It further appears that the said decree was put into execution in Ejectment Case No. 9 of 1988 and a false report was submitted by manipulation and/or collusion with the court bailiff which is apparent on the fact of the record. The fraudulent nature of the report will be apparent from the following facts. The father Nalini Kanta Majumdar appeared to give a mock resistance to the court bailiff Just to facilitate the pray for police help been granted with suit filed by the son Deb Prosad Majumdar."
9. In paragraph No. 16 of the said suit, the plaintiff-respondent No. 1 has also reiterated the said facts and prayer (a) of the said application for temporary injunction which is reproduced below, would also be relevant for the said purpose.
"(a):-Temporary injunction is granted restraining the defendant/opp. party No. 2 from disturbing and/or Interferring and/or intermiddling with the joint possession of the petitioner along with the proforma defendant in respect of the suit premises as per schedule given to the plaint by executing the decree in Ejectment Suit No. 514 of 1987 and by in Ejectment Execution Case No. 9 of 1988."
10. The decision of the Supreme Court in the case of Krishna Kumar v. Union of India (supra) also would not help the respondents in any way, inasmuch as, that is a decision on the points of ratio decidendi' and "stare a decises." In paragraph No. 20 of the said decision, the apex court has explained the word 'ratio decidendi' inter alia, in the following manner:-
"20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the under-lying principles, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it........."
11. The apex court has also explained the phrase "stare a decises" in paragraph No. 22 of the same decision inter alia, in the following manner :-
"22:- Stare decises non quieta movera. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of court is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and to apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be inveriably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it............."
12. However, the points decided in the said case in Krishna Kumar v. Union of India (supra) are not at all relevant for deciding the present appeal. Rule 104 of Order XXI of the Code of Civil Procedure that every order made under Rule 101 or Rule 103 of the Code of Civil Procedure, shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 of the Code of Civil Procedure is made as sought to establish a right which he claims to be the present possession of the property. The provisions of Order XXI Rule 104 of the Code of Civil Procedure, cannot be called 'stare a decises' so far as the present case is concerned in any manner whatsoever, inasmuch as, by the decision in Babu Lal v. Raj Kumar (supra), the Hon'ble Supreme Court has not sought to unsettle the statutory provisions of Order XXI Rule 104 of the Code of Civil Procedure in any manner at all. In the present case, admittedly, an ejectment decree was already passed and an ejectment execution proceeding was already pending, when the suit was filed by the plaintiff-respondent No. 1 challenging the said decree in which, the impugned temporary order of injunction was granted. The expression "proceeding" as stated in Order XXI Rule 104 of the Code, according to us would mean an execution proceeding.
13. Considering the facts and circumstances of the case, we are, therefore, of the view that the plaintiff-respondent No. 1 should have filed application and/or objection under Order XXI Rule 97 of the Code of Civil Procedure in the execution proceeding, pending at the date of institution of the suit filed by him challenging the decree instead of filing an independent suit.
14. Accordingly we hold that prima facie the plain tiff-respondent No. 1 cannot get an order of injunction in the suit filed by him in the trial court. The impugned order, therefore, stands set aside and the appeal is thus allowed without, however, any order as to costs. The lower court records if already have reached this court are to be sent down immediately.
Debi Prasad Sarkar-II, J.
15. I agree.