Calcutta High Court
Virendra Kumar Agarwala & Ors vs Shree Shree Sitaram Jew And Ors on 8 August, 2014
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
GA No.3455 of 2013
With
CS No.459 of 1987
GA No.2228 of 2012
GA No.2487 of 2013
GA No.2699 of 2013
GA No.355 of 2013
GA No.432 of 2011
VIRENDRA KUMAR AGARWALA & ORS
Versus
SHREE SHREE SITARAM JEW AND ORS
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 8th August, 2014.
Appearance:
Mr. D.N. Sharma, Adv.
Ms. Debjani Chatterjee, Adv.
...for the petitioner
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Jishnu Chawdhury, Adv.
Mr. Soumya Roy Chowdhury, Adv.
Mr. Chayan Gupta, Adv.
Mr. Debanjan Mandal, Adv.
Mr. Sandip Das Gupta, Adv.
Mr. Rajesh Upadhyay, Adv.
Mr. Arnab Sardar, Adv.
...for the respondent no.1
Mr. Pratap Chatterjee, Sr. Adv.
Mr. Samrat Sen, Sr. Adv.
Ms. Manali Bose, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Joydeep Roy, Adv.
Mr. Ayan De, Adv.
...for the respondent no.88 Mr. R.L. Mitra, Adv.
...for the respondent no.117 Mr. S.N. Mookherjee, Sr. Adv.
Mr. Mainak Bose, Adv.
Mr. Sakya Sen, Adv.
2Ms. Shyantee Dutta, Adv.
...for the respondent no.118 Mr. Suddhwashattya Banerjee, Adv.
...for the respondent no.120 The Court : All the interlocutory applications excepting GA No. 2699 of 2013 are taken up together and disposed of by this common judgment and order.
The application being GA No.2228 of 2012 is filed by one Smt. Ruby Ganguly claiming herself to be one of the shebaits of Shree Shree Sitaram Jew, a deity consecrated and installed at No. 48A, Sankharitala Street, Calcutta. In the said application the applicant has prayed for various reliefs which, inter alia, include striking out of the names of the defendant nos.1, 2 and 3 from the array of the defendants in the present suit. The applicant has also prayed for vacating the interim order dated 3rd and 4th March, 1989 and in the alternative, a leave may be granted to the petitioners to sell a portion of the premises to Tirupati Assets Pvt. Ltd. and have the balance area developed through the same concerned as mentioned in paragraph 13 of the said petition.
The application for transposition by the defendant no.118 to the position of the plaintiff and to continue with the suit as a plaintiff or co-plaintiffs along with Prabhat Agarwal with a prayer for condonation of delay is the application being GA No.432 of 2011.
The defendant no.118 has also filed an application for dismissal of GA No.2228 of 2012.
GA No.2699 of 2013 is an application for taking exception to the report filed by the Special Officer. The said application, however, is not taken up for hearing and the said application shall be heard separately. 3
For the time being only GA No. 2228 of 2012, GA No.2487 of 2013, GA No.355 of 2013 and GA No.432 of 2011 are taken up for hearing.
One Virendra Kumar Agarwala and three others have filed a suit for partition and administration of the leasehold interest in the Ballygunge property and the tenancy right at No.4, Lyons Range, Calcutta and for appointment of a Commissioner of Partition to partition the undivided family properties. The defendant no.1 is a deity. The deity is the owner of the Ballygunge property. The deity was represented by defendant nos.2 and 3.
The suit is unique in the sense that in the partition suit the landlord-lessor was made a party. In the plaint, no relief has been claimed against the defendant nos.1, 2 and 3. The plaint does not disclose any cause of action so far as defendant nos.1, 2 and 3 are concerned. However, surprisingly, orders have been passed since 1989 restraining the owners namely the lessors from parting with the possession of the Ballygunge property with a rider that in the event, the said defendants are willing to sell the property, notice shall be given to the parties.
Mr. Abhrajit Mitra, learned senior advocate, moving the application being GA No.2228 of 2012 submitted that the plaint does not disclose any cause of action inasmuch as there is no averment in the plaint which would show that the defendant nos. 1 to 3 are either necessary or proper parties. Mr. Mitra has referred to various paragraphs of the plaint and stated that except for reference to some pending suit as mentioned in paragraph 15 as against the defendant no.46, there is no averment in the plaint with regard to the defendant nos.1, 2 and 3 and it is submitted that the presence of the defendant nos.1, 2 and 3 are 4 totally unnecessary and the names of the said defendants should be deleted. It is further submitted that the defendant nos.2 and 3 died long ago and the applicants in the other applications are well aware of the same. The applicants, however, did not take any steps to bring on record of other shebaits. The suit, accordingly, stands abated.
Mr. S.N. Mookherjee, learned senior counsel appearing on behalf of the defendant no.118, submits that the defendant nos.1 to 3 are both bound by privity of contract and privity of estate. It is submitted that the lease was executed on 10th May, 1921 and the same was subsequently modified on 13th September, 1924. Mr. Mookherjee refers to Clause 4 of the modified lease deed which reads:
"4. That the lessees shall also be at liberty without such sanction or permission as aforesaid to effect a partition and division amongst themselves of the demised premises after erection of buildings of the value of not less than Rupees One lac and in the event of such partition being effected the lessor shall agree to a proportionate division and allocation of rent amongst the various allottees respectively in proportion to their respective shares."
It is submitted that the said clause would justify the addition and retention of the defendant nos.1, 2 and 3 as defendants in the suit.
Mr. Mukherjee referred to the decision reported at Vol.X, The Weekly Reporter 392 (Bholanath Sincas vs. Baharam Khan & Anr.) and AIR (36) 1949 Madras 618 (Krishna Battacharya vs. Narayana Achary) and submitted that the presence of the lessor is required in order to give effect to clause 4 of the modified deed of lease. Although the joint lessees can effect a partition as between 5 themselves but if the lessor is not a party to the division, he is not bound by it and he cannot be compelled on that account to demand and recover only a proportionate share from each of the joint tenants. Unless the lessors are made parties in the partition suit, clause 4 of the modified deed of lease would not be given effect to since the presence of the said lessors would be required for the purpose of determining the proportionate share of rent to be paid by the various allottees respectively in proportion to their respective shares to be declared in the partition suit. Mr. Mukherjee has also raised serious disputes with regard to the maintainability of the petition at the instance of the present applicant, namely, Smt. Ruby Ganguly.
Mr. Pratap Chatterjee, the learned senior counsel appearing on behalf of the defendant no.88 submits that this application is required to be dismissed in limine. Mr. Chatterjee has referred to the decision of the Privy Council reported at AIR 1943 Privy Council 89 (Bhabatarini Debi vs. Ashalata Debi & Ors.) and submitted that the very basis of the claim of the applicant as shebait of the deity is contrary to the law laid down by the Privy Council in Bhabatarini Debi (Supra). It is submitted that in the said decision re-dedication of the properties by virtue of deed dated February 13, 1929 after the execution of the Arpannama or deed of dedication dated 31st March, 1922 was held to be invalid and, accordingly, the line of succession to the office of shebaitship should be in line with and confirmity with the Arpannama dated 31st March, 1922. It is submitted that in view of the judgment in Bhabatarini Debi (Supra), the line of succession to the office of shebaitship cannot be altered and Smt. Ruby Ganguly, daughter-in-law of the family could not have claimed her right as a shebait inasmuch as even 6 under the ordinary law of succession she would not have succeeded to the estate when her husband is alive.
The learned senior counsel has submitted that the object of the instant application is to nullify the orders that are existing since 1989. It is submitted that no reason has been disclosed in this petition as to why after almost twenty years, the present application has been filed seeking variation of the interim order passed in the year 1989. It is submitted that the long passage of time as well as by reason of the fact that the interim order was passed in presence and upon notice to the defendant nos.1 to 3 and it is no more open for the said applicant, namely, Ruby Ganguly to seek a relief for vacating of the interim orders that are subsisting for over last twenty years.
It is submitted that it is well settled that interlocutory orders in the suit shall operate as res judicata at different stages of the same proceedings and the defendant nos.1 to 3 having suffered such interim orders for all these years could not have reopened the issue. Such an application was for variation and/or recalling of the order is clearly barred under Order 39 Rule 4 of the Code of Civil Procedure. The learned senior counsel has referred to the affidavits filed in these proceedings and, more particularly, the affidavit-in-reply filed by Ms. Ganguly in these proceedings in order to show that the said applicant is seeking to create third party interest in the said property and the very purpose of filing this application is to facilitate one developer by the name of Tirupati Properties to get possession of the said property. It is submitted that the deed of trust as well as the decision of the Privy Council clearly prohibits the shebaits from mortgaging the suit properties and any such attempt on the part of Ruby Ganguly or any of 7 the shebaits to part with the property in such a clandestine manner de hors the provisions of the deed of trust as well as contrary to the judgment of the Privy Council should not be permitted. It is submitted that the recitals to such agreements entered into by the earlier shebaits or by Ruby Ganguly are void ab initio having regard to the fact that such agreements are based on a subsequent dedication made by the settlor on 13th February, 1929 which was held to be invalid by the Privy Council.
Mr. Chatterjee adopts the argument made by Mr. Mitra with regard to the interpretation of clause 4 of the modified deed of trust and submits that the presence of the defendant nos.1 to 3 is necessary for proper adjudication of the suit. It is submitted that the presence of the said defendants is important and necessary both with regard to the ascertainment of the value of the property as well as the proportionate rent to be shared by the parties to the suit. This adjudication can conveniently take place in presence of the said lessor. In this regard, Mr. Chatterjee has referred to the decisions reported at (1996) 5 SCC 379 (M/s. Aliji Monoji & Co. vs. Lalji Mavji & Ors.).
It is strenuously argued that having regard to the subsequent conduct of the plaintiffs, namely, that they were deliberately making attempt to dispose of the property notwithstanding the order passed by this court on earlier occasion, subsequent events are required to be taken into consideration to do complete justice. That the Court can always take into consideration such subsequent events and mould the reliefs. In this regard the learned senior counsel has referred to the decisions reported in Om Prakash Gupta vs. Ranbir B Goyal, reported in (2002) 2 SCC 256; and Rajesh Kumar Agarwal vs K. K. Moti reported 8 in (2006) 4 SCC 385. However, the main emphasis of the argument of Mr. Chatterjee is that since the application is not maintainable in law and in fact the Court could not enter into the merits of the matter without first deciding the maintainability of the application.
Mr. Abhrajit Mitra, learned senior counsel in reply submitted that the applicant was appointed as a shebait under a deed of appointment of shebaits dated 27th August, 2008 executing by Smt. Diptilata Debi as shebait of the said deity in favour of Satrajit Ganguly and Ruby Ganguly. It is submitted that the decision in the Privy Council was considered subsequently by Hon'ble Mr. Justice Sarkar in a suit instituted by Ashalata Debi against Kanaklata Debi and Diptilata Debi. The said suit was filed by the three unmarried daughters of Sital Chandra Banerjee, the original settlor.
Mr. Mitra has referred to the judgment of Justice Sarkar dated 3rd August, 1955 and submitted that in view of the said judgment Diptilata Debi was entitled to appoint and or nominate shebaits. He has referred to the recitals in the deed of appointment executed by Diptilata Debi and submitted that it was by reason of the consent decree dated 8th January, 1951 as well as the findings of the Privy Council in Bhabatarini Debi (supra), inter alia, holding that Sital's only valid disposition of shebaits was in favour of Panchanan and Panchanan was given the absolute right to the office of shebait the challenge to the locus of Ruby Ganguly, the present applicant, must fail.
Mr. Mitra, learned Senior Counsel refers to the various documents disclosed in the affidavit-in-opposition filed by Mr. Anuj Aggawal, the defendant No.88 to show that the parties all throughout accepted the present applicant as 9 one of the shebaits and have tendered rents. In fact agreement for sale was entered into with Satrajit Ganguly and Ruby Ganguly as by companies in which such defendants have substantial interest. Accordingly, the challenge to the locus of the applicant to maintain this application is totally frivolous and without any merit. It is submitted that the decisions cited with regard to subsequent events would clearly show that such facts were brought on record by way of necessary amendments to the pleading and in absence of any amendment being made to the existing pleading, the other applicants cannot come and contend that there are subsequent events which call for continuation of the suit against the defendant Nos.1 to 3.
The suit is for partition and administration of the Agarwal family. The plaintiffs in the suit are all successors of one Hukum Chand Kasliwal. Hukum Chand Kasliwal was a lessee under the original lease of deed of 1921. Thereafter there is a modified lease deed of 1924. How far the modified lease deed would be executed and binding on the deity is extremely doubtful in view of the submission made by Mr. Chatterjee that the property had been dedicated in favour of the deity by the deed of dedication dated 31st March, 1922 and the modified deed of lease does not mention that Sital Chandra executed the said modified deed of lease in the capacity as a shebait of the deity. Once there is a dedication in favour of the deity, the modified deed could not have been executed by Sital alone in his individual capacity. However, this question need not be gone into at this stage.
In a partition suit between lessees ordinarily, the landlord or the lessor is not required to be made a party in such a suit. The co-sharers and/or co-lessee 10 of the property seeks declaration of respective shares in the property and division of the property according to the shares to be declared and/or adjudicated by the Court. Clause 4 of the modified lease deed does not make the defendant Nos.1 to 3 a necessary or proper party. Mr. Chatterjee argued that in the event the defendant Nos.1 to 3 are not made parties to the suit, it may lead to multifariousness. I am, however, unable to accept such submission. There is no averment in the plaint that the defendant Nos.1 to 3 have acted in breach of the said clause. The suit is pending since 1987; none of the plaintiffs or even the two present defendants who had filed the application felt it necessary either to transpose themselves as plaintiffs or to make any application for amendment. The transposition of one of the defendants was only made in 2011. The deed of surrender by some of the co-lessees in favour of the original lessors is not a subsequent event which may call for continuation of the suit against the defendant Nos.1 to 3. In any event the plaint, as it stands, does not disclose any cause of action against the defendant Nos.1 to 3. The plaint as it stands does not mention any surrender. Mr. Chatterjee submitted that the suit cannot abate since the defendant No.1 since defendant No.1 is a minor. That does not, however, come in aid for the plaintiffs or the applicants who opposed the prayer of Ms. Ganguly for seeking dismissal of the petition filed by Ms. Ruby Ganguly. If the defendant Nos.2 and 3 are dead, it is all the more necessary for the Court to see the interest of the deity. Order 1 Rule 10(2) permits the Court even without an application to add and/or delete a party from the suit.
The primary object of Order 1 Rule 10(2) of the Code of Civil Procedure is to bring before the Court at one and the same time of the persons interested 11 in the dispute that all the controversies in the suit may be finally determined once and for all the in the presence of the parties without delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. Notwithstanding the fact that the said provision confers wide discretion but such discretion has to be exercised judicially and on sound legal principle. In Anil Kumar v. Shivnath reported in (1995) 3 SCC 147, considering the provisions of Order 1 Rule 10(2), the Supreme Court observed that "though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, the condition precedent is that the Court must be satisfied that the presence of such party would be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit ... The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence at the same time without any protection, inconvenience and to avoid multiplicity of proceedings."
The said power can be exercised on either of the two grounds:-
(a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined:
Or
(b) Without his presence, the question involved in the suit cannot be decided finally and effectively.
... ... ...12
Under sub-rule (2) of Rule 10, only two classes of persons may be added as parties to a suit: (i) necessary party, i.e. a person who ought to have been joined as a party and in whose absence no decree or order can be passed: or (ii) proper party, i.e. a person, whose presence is necessary for complete and effectual adjudication of the questions involved in the suit.
If a person is neither a necessary nor a proper party, he cannot be impleaded in a suit.
The said rule provides for addition of proper or necessary parties and the striking out of improper and unnecessary parties. Addition of parties should not be made merely to avoid multiplicity of suits if their presence is not necessary for determining the real questions ILR (1946) 1 Cal 656 (Gosto v. Sur's Estate Ltd) In Andico Limited vs. Ms. DYC Self Help Group and Anr., reported in (2012) WBLR (Cal) 507, the learned Single Judge of this Court has stated: "while dealing with the issue, it should be considered whether there is cause of action against the said defendant and whether it has been specifically pleaded in the plaint and consequently whether specific relief has been claimed against the said defendant. Moreover, it should be seen whether the said defendant has a direct link in the litigation and what role the defendant No.2 has to play for effective adjudication.
Perusing the plaint, I find neither there is any specific pleading as to the cause of action against the said defendant No.2 nor there is any specific prayer against the said defendant. Therefore, the learned Judge while passing the order dated 19.3.2012 was justified in holding that there was 13 no personal liability of the defendant No.2 who was also representing as the Secretary of the defendant No.1. The judgment in R. L. Jain (Supra) is not applicable as perusing the paragraph 4 I find therein not only specific pleadings were against the applicant/defendant No.5 but specific prayer was also made. So far as the applicability of Section 6 and its proviso of the Societies Registration Act, 1860 is concerned, it is clear that under the statute a society may be sued in case, as the defendant No.1 is represented by the Secretary and, as noted, the defendant No.2 has no role to play, it shows that the order passed was just and proper."
Since on a plain reading of the plaint, it clearly shows that the plaint does not disclose any cause of action so far as the defendant Nos.1 to 3 are concerned, inasmuch as no relief is claimed against the defendant Nos.1 to 3 in the suit, this Court wonders about the injunction orders that were operating since it is a settled law that interlocutory orders can only be passed in aid of the final reliefs. The foundational facts as well as the material facts in so far as defendant Nos.1 to 3 are concerned, so as to claim a right to continue the suit against the said defendant Nos.1 to 3 are lacking. Even if one accepts that Ruby Ganguly is not competent to file the application, the fact remains that the Court is required to preserve and protect the interest of the deity and see that the deity shall not be dragged into an unnecessary litigation where the presence of the deity is not required. The applicants cannot achieve something indirectly which they cannot do directly. The applicants want the defendants to be on record for some other purposes. The rule of addition or deletion of party should not be used as a ruse to ventilate certain grievances of one or other of the parties on record which is 14 neither necessary or expedient to be considered by the Court in the pending litigation. The applicants should have been courageous enough to state the correct facts since it appears from the documents disclosed in this proceeding that the present applicants have all throughout recognized Diptilata Debi, and subsequently Satrajit and Ruby Ganguly the present applicants, as shebait and there are orders of Court which would show that rents were being paid to the Advocate on record who had represented the said shebaits. A tenant cannot ordinarily dispute the title of the landlord. On an enquiry put to the counsels appearing for the defendants as to whom the rents were paid, no clear answer was available. However, the order dated 13th August, 2013 would show that one Amita Basu had represented the erstwhile and the existing shebaits. Some of the agreements disclosed in the affidavit of Anuj at pages 233 onwards would show that the said applicants recognise Ruby as one of the shebaits. It would further show that the present applicants had entered into similar agreements for sale in relation to the other properties from the same set of shebaits and now they make a volte face and seeking reliefs against the same trustees questioning their authorities to sell.
The question of res judicata in this case would not apply since there is no adjudication or decision with regard to the right of the plaintiff against the defendants inasmuch as a bare reading of the plaint and the reliefs claimed in the plaint would show that no relief has been claimed against the defendant Nos.1 to 3. It has been repeatedly held by a long catenea of decisions that the interim relief will only be in aid of the final relief in the suit. Recently in an unreported decision in Webtech Industries Pvt. Ltd. vs. Excel Dealcom Pvt. 15 Ltd. & Ors. Decided on December 21, 2012, the Hon'ble Division Bench held:
" The basic principle of considering an application under Order 39 of the Code of Civil Procedure would denote, the court of law while considering a civil action should protect the property involved in the litigation and/or the respective rights and privileges of the parties pending final adjudication at the of final disposal of the suit. In short, it is an enabling power of the court of law to preserve or protect the issue until final adjudication so that the decree, if ultimately passed, would not be infructuous. That would only be possible when the court of law would pass an order in the aid of the suit. An interim order could only be passed in the aid of the suit. However, it should relate to the final relief claimed in the plaint. Prayer (a) quoted above would unequivocally show, no relief was claimed as against the defendant no.4. If no relief was claimed against defendant no.4, the interim relief as against defendant no.4 would not be maintainable at all. Order of injunction in whatever form as His Lordship would deem fit and proper could only bind the parties to the agreement that would be the subject matter of the suit. It would bind only the parties against whom the final relief is sought, otherwise it would be in excess of jurisdiction."
Since I have held that there is no foundational facts as well as material facts disclosed in the plaint as against the defendant Nos.1 to 3, the respondent Nos.1 to 3 cannot be dragged and the proceedings shall not continue against them, the question of continuation of the order against the said defendants could not and does not arise.
16
In view of the aforesaid, there shall be an order in terms of prayer (c) of the notice of motion in G.A.No.2228 of 2012. In so far as the sale of the trust property is concerned, the same cannot be decided in this application. This Court is informed that an application under Section 34 of the Trust Act, is pending. That issue is neither decided nor gone into at this stage.
In view of the order passed in G.A.No.2228 of 2012 all other applications stand dismissed.
There shall, however, be no order as to costs.
Learned Counsel representing the defendant Nos.118 prays for stay of operation of the order. The same is considered and rejected.
(SOUMEN SEN, J.) sp/B.Pal/bp/As.