Calcutta High Court (Appellete Side)
Sri Rajendra Gupta & Anr vs Sri Susanta Mondal on 28 September, 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. 968 of 2011
Sri Rajendra Gupta & anr.
Versus
Sri Susanta Mondal
For the petitioners : Mr. M.K. Das, Sr. Advocate
Mr. Subhabrata Das, Advocate
For the opposite party : Mr. P.S. Chakraborty, Advocate
Mr. S.K. Roy Karmakar, Advocate
Heard on : July 7 and 14, and August 4, 2011
Judgment on : September 28, 2011
1.This application under Article 227 of the Constitution, at the instance of the petitioners (plaintiffs in Title Suit No. 550 of 2003), is directed against order no.202 dated February 14, 2011 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta. By the said order, a petition dated November 29, 2010 filed by the petitioners under Order 8 Rule 6C, Civil Procedure Code read with Section 151 thereof seeking exclusion of the 2 counter-claim of the defendant in the suit, the opposite party herein, was rejected.
2. The genesis of the dispute between the parties, when traced, reveals the following:
(a) The petitioners instituted the suit for declaration and permanent injunction (hereafter the former suit), wherein a decree was prayed for to declare that they have unfettered right of ownership of the suit property, described in schedule A to the plaint together with right of free ingress and egress as well as peaceful enjoyment thereof. A decree for permanent injunction was also claimed restraining the opposite party from committing acts of trespass over the suit property and/or from putting any person in possession thereof.
(b) In connection therewith, the petitioners filed an application under Order 39 Rules 1 & 2 of the Code. By an order dated April 25, 2003, the trial Court passed ad-interim order of injunction restraining the opposite party from disturbing their peaceful possession of the suit property and from creating any embargo in their ingress thereto and egress therefrom.
(c) Almost a year later, on or about March 20, 2004, the opposite party, as plaintiff, instituted Title Suit No. 379 of 2004 in the City Civil Court at Calcutta (hereafter the latter suit) against seven defendants, of which the petitioners were the third and the fourth 3 defendants. It was a suit for declaration and permanent injunction. The opposite party in his suit claimed the following relief:
(i) a decree for declaration that the legal charge of dated 22nd day of June, 1998 ranks in priority to the deed of execution for sale of the said premises by Chhaya Das and Shila Dey to Mriganka Gupta and Rajendra Lal Gupta;
(ii) a decree for declaration that the said transaction is a sham transaction as because all the successors in interest of Pritilata Bhur (since deceased) have not been included;
(iii) a decree of declaration that the said Deed is tinged with the spirit of malafide and wantonness hence it is bad in the eye of law;
(iv) a decree for declaration that the defendant no. 5 and 6 are liable to perform and observe the covenant of Pritilata Bhur contained in the said agreement so long as Susanta Mondal continues in occupation of the said premises;
(v) a decree of perpetual injunction restraining the defendants no.3, 4 from alienating parties with ....(iilegible).... mortgaging or any way encumbering the aforesaid suit property;
(vi) if necessary an administrator or receiver further or other relief as the learned Court may seem fit and proper.
(d) It is noted that the suit properties in both the suits are the same, viz. premises no. 153/2C, Acharya Prafulla Chandra Road, P.S. Battala along with land measuring more or less 8 cottahs, 1 chittak and 24 sq.ft.
(e) The order of injunction passed on April 24, 2003, however, was vacated on October 18, 2006 by the learned trial Judge. Feeling aggrieved thereby, the petitioners filed an appeal before this Court. On September 10, 2007, a Division Bench of this Court disposed of the appeal along with the application for stay. It was 4 noted that during the subsistence of the interim order of injunction the petitioners had been dispossessed and bearing in mind the same, it was observed that the case should not be reopened and since the suit was pending, both parties should maintain the present position. The trial Court was directed to expedite its decision on the suit without being influenced by the finding of possession and keeping its mind open.
(f) Sometime later, however, the latter suit instituted by the opposite party was dismissed for default on October 29, 2009.
(g) After disposal of the appeal, as aforesaid, the petitioners filed an application for amendment of the plaint in the former suit. The opposite party filed written objection thereto. By an order dated December 17, 2009, the application for amendment was allowed on imposition of cost of Rs.500/-.
(h) Challenging the order allowing amendment of plaint, the opposite party filed a revisional application before this Court. A learned Judge, by order dated March 30, 2010, rejected the application but granted leave to the opposite party to file additional written statement within four weeks from date of service of copy of the amended plaint. Availing of the liberty granted by order dated March 30, 2010, the opposite party filed additional written statement and set up a counter-claim. It was prayed by the opposite party as follows:5
i) for a decree of declaration that this Defendant is entitled to protect his possession over the suit property which this Defendant obtained from Pritylata Bhur (since deceased) in part performance of the contract.
ii) a decree of declaration that the Sale Deed between Rajendra Lal Gupta, Mriganka Gupta AND Chayya Das and Shila Dey is not proper and valid in the eye of law.
iii) a decree of perpetual injunction according to the merit of the counter claim restraining the plaintiffs and their agents from disturbing the peaceful possession of Susanta Mondal from the suit property.
(i) Factually, the opposite party pleaded that there was an agreement between Pritilata Bhur (since deceased) and himself for sale of the suit property and that he had obtained possession thereof in pursuance of part performance of the contract. This led the petitioners to file the application, which has been rejected by the impugned order.
3. Mr. Das, learned senior advocate for the petitioners contended that the counter-claim set up by the opposite party is barred not only in view of Order 9 Rules 8 & 9 of the Code but also by the laws of limitation. It was next contended that although the opposite party relied on the doctrine of part performance, his role does not satisfy the conditions of Section 53A, Transfer of Property Act (hereafter the TP Act). According to him, the agreement on which the opposite party relies, if at all executed by the aforesaid deceased, is an unregistered instrument and not adequately stamped, and therefore, no credence ought to be given to it. Referring to the single Bench decision reported in 1999 (II) CHN 369 (Dr.Swapnadin Lahiri v. Tridib Das Roy), it was contended that the instrument on the 6 basis of which the opposite party seeks to base his claim not being a legal and valid instrument, he is not entitled to any relief in his counter-claim. For the same effect, he relied on the decision reported in AIR 1931 P.C. 79 (G.H.C. Ariff v. Jadunath Majumdar Bahadur) and argued that registration is necessary. Relying on the decision reported in AIR 2000 Calcutta 17 (M/s. Oriental Ceramic Products v. Calcutta Municipal Corporation), it was contended that if from the statements made in the written statement, wherein the counter-claim is set up, it appears that it is barred by the law of limitation, the counter-claim would be liable to rejection. The Bench decision of the Gujarat High Court reported in AIR 2004 Gujarat 83 (Gujarat Electricity Board v. Saurashtra Chemicals, Porbandar) was referred to in support of the contention that since no attempt has been made by the opposite party for restoration of the latter suit, a fresh suit on the self-same cause of action would be barred under Order 9 Rule 9 and having regard to the legal position that a counter-claim is to be treated as a cross suit, the same would not also be maintainable in view of dismissal of the latter suit for default. The decision reproted in (2003) 7 SCC 350 (Ramesh Chand Ardawatiya v. Anil Panjwani) was placed wherein a malafide attempt to reopen proceedings by filing counter-claim was deprecated. Finally, it was contended that Order 23 Rule 1 of the Code was also a bar to the filing of the counter-claim. Once a suit is withdrawn, he contended, a second suit on the self-same cause of action would not lie unless the Court while permitting withdrawal grants leave. In this 7 connection the decision reported in AIR 1987 SC 88 (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and ors.) was placed. According to him, allowing the latter suit to be dismissed is akin to withdrawal and, in the absence of any leave to file a fresh suit, the counter- claim is not maintainable. He, accordingly, prayed for an order to set aside the impugned order and to direct the trial Court to proceed, in accordance with law, excluding the counter-claim.
4. Mr. Chakraborty, learned Advocate for the opposite party contended that with the application for amendment of plaint being allowed by the trial Court, the structure of the suit was changed which necessitated the opposite party to set up a counter-claim. According to him, the latter suit (filed by the opposite party) not having been decided on merits, question of the counter-claim being barred by res judicata does not and cannot arise. It was also submitted by him that at the time of dismissal of the latter suit, the present petitioners were not present and they had not filed their written statement even and, therefore, question of the counter-claim being barred by Order 9 Rule 9 of the Code does not and cannot arise. In so far as the question of the counter-claim being barred by limitation is concerned, it was submitted that the question of limitation is a mixed question of fact and law and, therefore, the issue ought to be allowed to be decided by the trial Court after evidence is adduced by the parties. Finally, it was contended that the learned Judge was right in his conclusion that the petitioners had set up no case for exclusion of the counter-claim and, 8 thus, the order impugned did not merit interference. In support of his submissions, Mr. Chakraborty relied on the decisions reported in AIR 1996 SC 1087 (Gurbachan Singh v. Bhag Singh and ors.) wherein it was ruled that in a suit for injunction, a counter-claim for possession also could be entertained by operation of Order 8 Rule 6A of the Code and AIR 2007 Madhya Pradesh 81 (Atmaram Gangadhar Deshwali & anr. v. Noormohammad & ors.) for the proposition that a counter-claim cannot be dismissed at the reshold on the ground of limitation without framing of issues or recording of evidence.
5. Responding to the submission of Mr. Das that the opposite party cannot rely on the doctrine of part performance and since conditions mentioned in Section 63A of the TP Act are not satisfied, Mr. Chakraborty relied on the decision of the Supreme Court reported in 2002 AIR SCW 659 [Shrimant Shamrao Suryavanshi and anr. v. Pralhad Bhairoba Suryavanshi (dead) by LRs. And ors.]
6. I have heard the learned advocates for the parties.
7. Order 9 Rule 8 ordains that where the plaintiff does not appear but the defendant appears when the suit is called on for hearing, the Court is entitled to dismiss the suit for default. Order 9 Rule 9 provides that an order of dismissal passed under Rule 8 may be recalled on the application of the plaintiff, provided he justifies his non-appearance calling for exercise of discretion. On a conjoint reading of Rules 8 and 9, it is clear that once a suit is dismissed for default in the absence of the plaintiff but in the 9 presence of the defendant, the plaintiff is precluded from instituting a fresh suit in respect of the same cause of action, but he is entitled to apply for recall of the order of dismissal. In order to enable the Court to hold that the counter-claim filed by the opposite party is barred having regard to the provisions of Order 9 Rule 9, it was incumbent on the petitioners to prove that on the date of dismissal of the latter suit, they were present in the trial Court and in their presence it was dismissed for default. It appears that the latter suit was dismissed on October 29, 2009 in the manner following:
"Defdt. 3, 4, 5 and 6 file hazira. Plaintiff takes no step. Cause also not shown as directed. Court fees stamp paid is correct. Suit is liable to be dismissed. Hence it is, ordered That the suit be and the same is hereby dismissed for default."
It is the assertion of the opposite party that the petitioners did not file written statement and, therefore, it cannot be said that the suit was being heard on contest. I am of the view that non-filing of written statement is hardly relevant for the purpose of Order 9 Rule 8 of the Code. Question that would require an answer is whether any or all the defendants appeared when the suit was called on for hearing. From the order quoted supra, it appears that hazira was filed on behalf of, inter alia, the petitioners. It would now exercise my consideration as to whether filing of hazira, without any recording in the order that the defendants either appeared in person or through advocate, amounts to appearance of the petitioners within the meaning of Order 9 Rule 8 of the Code. Filing of hazira, which is nothing but a memo of appearance, has developed over the 10 years as a matter of practice in the subordinate Courts, without there being any statutory sanction therefor. If a party seeks to derive advantage out of an order of dismissal under Order 9 Rule 8 of the Code and contends that a fresh suit would be barred because he had appeared by filing hazira, the mere fact that a hazira might have been filed on his behalf would be of no help; it has to be established that the defendant actually appeared when the suit was called on for hearing. The Court can take judicial notice of the fact that hazira is either filed at the time a suit is called on for hearing or even before call. If indeed an advocate representing a party files hazira at the beginning of the day but does not remain present when the suit is actually called on for hearing, that cannot be construed as appearance for the purpose of Order 9 Rule 8 of the Code. An order passed under Order 9 Rule 8 of the Code has serious consequences. To avoid future complications that an order of the nature quoted supra is likely to generate, the subordinate Courts (where filing of hazira is a practice) must record while recording an order of dismissal under Order 9 Rule 8 of the Code that a party has actually appeared, in addition to filing hazira, either in person or through advocate when the suit is called on for hearing for enabling that party to take a plea, if the occasion therefor arises in future, that a subsequent suit instituted against him is a bar in view of Order 9 Rule 9 thereof. Whether or not the petitioners' advocate appeared at the time of call is a question of fact, and such question cannot be resolved with reference to the order that has been recorded. I do not feel persuaded, on 11 facts and in the circumstances, to accept Mr. Das's contention that the counter-claim is barred in view of Order 9 Rule 9 of the Code.
8. Regarding the further contention of Mr. Das that the counter-claim is liable to fail in view of Order 23 Rule 1 of the Code also, I find little reason to agree with him. Order 23 Rule 1 entitles a party to withdraw a suit or to abandon a part of his claim. It is only in a case where the Court allows withdrawal and simultaneously grants leave to file a fresh suit on the self- same cause of action that a second suit would lie. However, if leave is not granted, and the suit is withdrawn without such leave, no fresh suit would lie having regard to the dictum in Sarguja Transport (supra). Order 23 has no application to a suit dismissed for default. If a suit is dismissed for default in the absence of both the plaintiff and the defendant, not only has the plaintiff a right to apply for setting aside the order of dismissal but he also has a right to institute a fresh suit on the self-same cause of action, subject to the laws of limitation, in terms of Order 9 Rule 3. After the latter suit was dismissed for default, the opposite party did not apply for setting aside such order and consequently question of refusing the prayer of the opposite party to set aside the order of dismissal did not arise. In such circumstances, it was open to the opposite party to institute a fresh suit, subject to the laws of limitation. Instead of instituting a fresh suit, he has set up a counter-claim in the former suit instituted by the petitioners which, considering the provisions of Order 8 Rule 6A(2), shall have the 12 effect of a cross-suit. Order 23 Rule 1 cannot therefore be held to be a bar to the setting up of counter-claim by the opposite party.
9. Now, comes the question of limitation. Mr. Chakraborty has rightly argued that having regard to the facts and circumstances of the present case, it is a mixed question of law and fact as to whether the counter-claim is barred by limitation or not. I am of the clear view that the issue regarding the counter-claim being barred by limitation ought to be decided after granting opportunity to the parties to lead evidence and that the learned Judge of the trial Court was justified in not allowing the application of the petitioners for excluding the counter-claim set up by the opposite party.
10. Arguments advanced by the parties on Section 53A of the TP Act need not be dealt with here since the same pertains to the merits of the rival claims of the parties and, consequently, it ought to be left for decision by the trial Court.
11. Lastly, the contention that the opposite party is seeking to assert his right on the basis of an unstamped and unregistered agreement falls for consideration. No final opinion need be expressed here. If at all the opposite party relies on the said agreement and wishes the same to be admitted in evidence, it would be incumbent on the learned Judge of the trial Court to proceed in accordance with law. But at this stage, there is no ground to hold that the counter-claim ought to be excluded from the trial Court's consideration.
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12. I have considered the decisions cited by Mr. Das. The law laid down therein is not in dispute but having regard to the foregoing discussion, the same does not assist him in persuading the Court to take a contra-view.
13. The revisional application stands dismissed, without costs.
14. Needless to observe, any observation made hereinabove shall not be binding on the learned trial Judge and he shall be free to decide the issues before him independently on the basis of the evidence that might be adduced by the parties and in accordance with law.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)