Calcutta High Court (Appellete Side)
Renuka Ghosh @ Ghose & Ors vs Chandra Sekhar Ghosh & Ors on 17 April, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
17.04.2017
(2)
AKS
C.O. No. 680 of 2016.
Renuka Ghosh @ Ghose & Ors.
Vs.
Chandra Sekhar Ghosh & Ors.
Mr. Bhaskar Ghosh
Mr. Aarjun Kumar Samanta
...for the petitioners.
Mr. Goutam Chakraborty
Mr. J. N. Manna
... for the opposite party no. 2.
(1) Heard Mr. Ghosh, learned Advocate, representing the petitioners/plaintiffs and also Mr.
Chakraborty, learned Advocate, representing the opposite party no. 2.
(2) The instant application under Article 227 of the Constitution of India has been directed
assailing the order no. 62 dated 8th October, 2015 passed by the learned Civil Judge (Senior
Division), Durgapur, District - Burdwan in Misc. Case No. 5 of 2015 arising out of T. S. No. 3 of
2010 on 28th March, 2014.
(3) The backdrop of the matter is that the petitioners filed a suit for partition in respect of two
ancestral homestead plots where only the co-sharers from the common predecessor were made
parties. The opposite party no. 2 in the capacity of defendant no. 2 entering appearance filed
written statement and took defence that the suit is bad for non-inclusion of all other properties
left by their predecessor, in effect defence was taken that the suit was bad for partial partition.
(4) It appears that the learned trial court framed as many as five issues including the issue
of maintainability, viz, "Is the suit maintainable in its present form and in law?" It further
appears that both the parties have adduced evidence both oral and documentary, and the learned
trial court decided the issue no. 1 against the petitioners. Penultimate portion of finding of
learned trial court is set out hereunder :-
"In this juncture, the part of the plaintiff concerned regarding the suit property is not
encourageable as they did not take any initiative to collect the other properties left by their father
2
though defendant no. 2 has specifically described those properties. Latches on the part of the
plaintiff as they did not avail the opportunity to know about the other properties left by their father
and filed the instant suit before this Court only seeking partition of the suit property and for that
this Court is of the opinion that such act of the plaintiff should not be entertainable and the instant
suit is not maintainable for partial partition.
Hence, this issue is decided against the plaintiff".
(5) The other issues were on the point of cause of action, payment of court fees
and as to whether the petitioners could get decree or relief or any other relief, as
sought for. Learned trial court pursuant to the decision of issue no. 1 also
decided the rest four issues against the petitioners and thus the suit was
dismissed on contest without any order as to cost.
(6) It is pertinent to mention that the decree in original suit was accordingly
drawn up. The petitioners being aggrieved filed the impugned application under
Order 47 Rule 1 of the Code of Civil Procedure proposing review of such
judgement.
(7) Mr. Ghosh argued that since the properties mentioned in the schedule of
the partition suit were joint only between the parties as co-sharers, they being
the successors from common ancestor, only those joint properties have been
brought in the hotchpot in the partition suit. He further argued that since the
other properties were not joint exclusively between the parties to the partition
suit, rather interest of some other third person is also involved, so the suit
cannot be held as not maintainable for partial partition. His grievance is that the
learned trial court without taking the concept of exclusive jointness into
consideration wrongly dismissed the application proposing review of the
judgement of dismissal which was decided not virtually on merit but only basing
upon decision of issue no. 1.
Mr. Ghosh relied upon the following cases :-
1.Umapati Manna & Ors. Vs. Becharam Manna & Ors., reported in 1990(1) CLJ 461.
2. Rajendra Kumar Bose Vs. Brojendra Kumar Bose, reported in 37 CLJ
191. 3
3. M/s. Kalloomala Tapeswari Prasad (HUF) Vs. Commissioner of Income Tax, Kanpur, reported in (1982)1 SCC 447.
4. Bimal Kumar Ghosh & Anr. Vs. Badal Chand Dutta, reported in (1975)1 CLJ 71.
5. Board of Control for Cricket, India and Another Vs. Netaji Cricket Club and Others., reported in AIR 2005 SC 592.
(8) Mr. Chakraborty, learned Advocate, representing the opposite party no. 2 per contra submitted that wrong forum was chosen by the petitioners against the judgement and decree which was beyond the scope of review. He submitted that the provision of review could have been attracted when there would be discovery of any new or important matter or evidence which after the exercise of due diligence would not be within the knowledge of the party seeking review, or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or from any other sufficient reason desires to obtain a review of the decree so passed may apply for review of the judgement.
Mr. Chakraborty relying upon the case of Dwijapada Mondal Vs. Bholanath Mondal, reported in 1954 AIR (Cal) 85 submitted that the decision cited by Mr. Ghosh in AIR 2005 SC 592 having been distinguished by the Division Bench of this Court in the case of Bablu Ghosh Vs. Amrit Fresh Private Ltd., reported in 2016(2) CLJ (Cal) 39, the order impugned should not be interfered with.
Of course, Mr. Chakraborty in his usual fairness submitted that subject to limitation if the petitioners may choose for an appeal against the judgement and decree, they may choose the said forum subject to overcoming the hurdle of limitation accrued by this time.
(9) The points as would be for consideration are mentioned below :-
(i) Whether the application for review was rightly rejected ? or,
(ii) Whether the order impugned requires interference under Article 227 of the Constitution of India?4
(10) Now looking back to the very provision of review as rightly pointed out by Mr. Chakraborty, there being no discovery of any new or important matter or new evidence which might be accepted that the same could not be produced beforehand despite exercise of due diligence by the petitioners, or, the same was not within their knowledge or could not be produced by them at the time when the decree was passed, or, learned trial court committed mistake or error apparent on the face of the record the very applicability of the provision of Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure is at stake.
(11) The case of Rajendra Kumar Bose (supra) or the case of Umapati Manna & Ors. (Supra) had dealt with the point of maintainability of the proceeding for seeking partial partition, and of course such point was raised and dealt with in a regular appeal. In the case on hand the point was sought to be considered within the scope of review, where scope is very limited and to be controlled by its provisions only. Therefore, both the cases are not applicable to this case. The case of M/s. Kalloomal Tapeswari Prasad (supra) is also not applicable in the case on hand since legality of partial partition was considered in the matter of application of the provision of Income Tax Act, l961.
The case of Bimal Kumar Ghosh (Supra) has no relevancy with the case on hand. Mr. Ghosh relied on paragraph 8 of this case where the court held "we think that the prayer for review should be granted and the appeal be re-heard". In the case on hand there was the judgement and decree dismissing the suit on contest against which the only efficacious remedy was preferring of appeal under Order 41 of the Code of Civil Procedure. The same having not been done, question of re-hearing of any appeal does not arise.
The case of Board of Control for Cricket in India (Supra) which was also dealt with in the case of Sri Bablu Ghosh and Amrit Fresh Pvt. Ltd. (Supra) relates to a completely different field dealing with the principles of review for which Mr. Ghosh specifically referred to its paragraph nos. 88, 89 and 90. On principle there can be no dispute that in some exceptional circumstances partial partition is permissible. But its non-consideration may be one of the grounds in appeal, if is preferred, but the same cannot be a consideration within the 5 parameters of the law, prescribed for review. Therefore, leaving the efficacious remedy available thereto, when the petitioners had chosen allegedly to be benefited by the provisions of Order 47 Rule 1 read with Section 114 of the Code, then they are to swallow also its bitter gourded test on failure to derive any benefit of review. In the case of Sirajul Islam & Ors. Vs. State of West Bengal & Ors. (Supra) the judgement of this court was sought to be reviewed by the appellant-applicants rejecting the right to file Form-"B" to retain their lands under Section 6(5) W.B.E.A. Act and said application was held maintainable. The facts and circumstances have no symmetry with the facts and circumstances of the case on hand, where instead of preferring regular appeal even on taking grounds under Order XIV Rule 1 or even Rule 2, the judgement and decree was wrongly put within the limited scope of review.
(12) Of course, the cases on which Mr. Ghosh relied upon have dealt with some other peculiar facts and circumstances mentioned above. There is no match with the present case where a suit was disposed of finally and instead of preferring appeal review was sought for. Therefore, in the case on hand when there is a regular decree by dismissing the original suit, remedy against which would be available within the ambit of Order 41 of the Code of Civil Procedure and since there is no mistake or error apparent on the face of the record and since the finding of the learned trial court are liable to be tested before the appeal court challenging whether the suit was bad for seeking partial partition, or whether the suit suffers from any defect under Order XIV Rule 1 or has its sufferance for non- compliance of Order XIV Rule 2 of the Code, the petitioners ought to have taken the recourse of appeal instead of evading time by filing application for review and again also preferring this application under Article 227 of the Constitution of India. Since in the decision making process there is virtually no lapses in rejecting the review application, the revisional application is liable to be dismissed by affirming the order impugned since there is no legal ground to make interference with the same.
(13) However, this order of dismissal may not stand as a bar on the way of the petitioners if they want to take any further legal steps either preferring appeal, 6 or, otherwise against the impugned judgment and decree, if it is not barred by any other law of the land, or if it is so barred then if the same is condonable to the satisfaction of the court.
(14) In view of the above, the order No. 62 dated 8th October, 2015 passed by the learned Civil Judge (Senior Judge), Durgapur in Misc. Case No. 5 of 2015 arising out of Title Suit No. 3 of 2010 is confirmed and the revisional application under Article 227 of the Constitution of India is dismissed.
(15) There will be no order as to costs.
(16) Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
( Mir Dara Sheko, J.)