Calcutta High Court (Appellete Side)
Deceased) vs Sri Sri Iswar Kishore Kishori Jew on 11 January, 2018
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE: HON'BLE MR. JUSTICE HARISH TANDON
C.O. 2652 OF 2016
ON THE DEATH OF RABINDRANATH DAS ADHIKARI (SINCE
DECEASED), HIS LEGAL HEIRS AND REPRESENTATIVES & ORS.
-VS-
SRI SRI ISWAR KISHORE KISHORI JEW,
SRI SRI ISWAR BRAJO KISHORE JEW AND SRI SRI ISWAR GOPINATH
JEW THAKUR & ORS.
Mr. Aniruddha Chatterjee,
Mr. Arnab Sardar
... for the petitioners.
Mr. Bhaskar Ghosh,
Mr. S.P. Pahari,
Mr. Pinaki Mitra,
Mr. T. Mahapatra
.... For the opposite party no. 1.
Judgment On: 11.01.2018
Harish Tandon, J.:
A point is raised in the batch of the instant revisional applications as to whether an appeal would lie against an order passed by the Court exercising Appellate Jurisdiction for which the remedy of the aggrieved person is provided under Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. Several judgments are cited by the respective parties in support of their respective contentions and invited the Court to decide the said point finally. At the very outset, this Court must recall that the point has been more or less settled in later decisions including the decision rendered by Special Bench taking uniform view that in such eventuality the remedy is by way of revision and not appeal.
To elaborate the point urged in the batch of the revisional applications, a point is raised by the opposite parties that if an interlocutory order is passed by the Appellate Court in an appeal pending before it once the remedy provided under Order 43 Rule 1 of the Code, such remedy should be exhausted as the Court of Appeal exercises Original Jurisdiction under Section 107 of the Code. In other words, a preliminary objection is raised in this regard taking aid of the said provision and contends that the statutory remedy cannot be taken away in absence of any express provision and the party cannot take a different remedial route rendering the lagislative intent redundant.
The present revisional applications arise from the order passed by the Court of Appeal below which if passed by the Trial Court is amenable to be challenged by way of an appeal under Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. Precisely, for such reason the common question of law is involved in the aforesaid revisional applications and they have been taken together as the decision taken on the legal point would guide and govern the maintainability thereof.
Before proceeding to deal with the point as indicated above, it is profitable and relevant to recapitulate certain provisions of the Code of Civil Procedure, which, in my opinion, assume relevance and significance:-
"S. 104. Orders from which appeal lies.--(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-
[(a) to (f) repealed by the Arbitration Act, 10 of 1940] [(ff) an order under section 35A;] (ffa) an order under Section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made].
"S. 107. Powers of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power---
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
"Order XLIII R. 1. Appeals from orders.--- An appeal shall lie from the following orders under the provisions of Section 104, namely:--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(b) omitted by Act 104 of 1976;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(e) omitted by Act 104 of 1976;
(f) an order under rule 21 of Order XI;
(g) and (h) omitted by Act 104 of 1976;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; [A,C,GAU,M]
(j) an order under rule 72 or rule 92 of Order XXI setting side or refusing to set aside a sale;
[AP] [(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) omitted by Act 104 of 1976;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as an indigent person;]
(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the payment of mortgage-money;
(v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV;
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, rule 2A, [AP] rule 4 [B] or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL; [AP,K,M]
(t) an order to refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear an appeal;
(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(w) an order under rule 4 of Order XLVII granting an application review. [B,G]"
Sub Section 1 of Section 104 of the Code envisages that an appeal shall lie from the following orders save as otherwise expressly provided in the body of the Code or by any law for the time being in force and from no other orders. Clause (i) indicates that an appeal shall lie from any order made under Rules from which an appeal is expressly allowed by Rules. It is no gain saying that the order passed on an application filed under the different provisions of the Rules and included within sub-Rule 1 of Rule 1 of Order 43 of the Code is appealable because of Clause (i) of sub Section 1 of Section 104 of the Code of Civil Procedure. In the instant cases, admittedly the orders are passed under the provisions which is enumerated under Order 43 Rule 1 of the Code but passed by the Appellate Court and therefore the moot question arises whether such orders are amenable to be challenged by way of an appeal and the revision in this regard is not competent. Section 107 of the Code authorizes the Appellate Court to exercise same powers and perform as nearly as may be same duties as are conferred and imposed by the Code on Courts of Original Jurisdiction in respect of the suits instituted therein. The meaningful reading of the provisions contained in Section 107 of the Code leaves no doubt that the Appellate Court enjoins powers to pass an order of injunction, receiver so on so forth provided there is an express provision under Order 41 of the Code. The several provisions as quoted herein above require harmonious interpretation and make each provision workable and any interpretation which would frustrate the workability and violate the legislative intent should be guarded against.
It is axiomatic to record and in my opinion would not be wrong to say that the orders coming within the circumference of Section 104(1) and Order 43 Rule 1 of the Code passed by the Court of Original Jurisdiction are appealable but whether the said provision can be pressed in action if those orders are passed by the Appellate Court exercising the powers that of the Original Court under Section 107 (2) of the Code. Sub Section 2 of Section 104 expressly bars any appeal from any order passed in appeal under Section 104 of the Code. The opening sentence of Order 43 Rule 1 also indicates that an appeal shall lie from the following orders enumerated therein under the provisions of Section 104 and not from any other order.
The identical language can also be seen from sub Section 1 of Section 104 of the Code and therefore there is no hesitation in my mind that apart from the orders enumerated therein the appeal shall not lie. In such eventuality the remedy is provided under Section 115 of the Code of Civil Procedure or Article 227 of the Constitution of India to the aggrieved person, provided the conditions enshrined therein is fulfilled. In the past there appeared to be a divergent opinion on the above point and some of the judgments rendered by this Court held that the appeal is competent against an order passed under the provisions which are included under Section 104 and Order 43 Rule 1 of the Code.
In case of Gyan Singh & Ors. -Vs- Guljar Singh & Ors. reported in (1988) 1 CLJ 389 the Single Bench of this Court held that an order passed under Order 39 Rule 1 and 2 of the Code by the Appellate Court is appealable. The Co-ordinate Bench though noticed sub Section 2 of Section 104 of the Code but held that such bar cannot apply against the original orders passed in exercise of powers under Sections 107(2) of the Code on the matters mentioned or included in Order 43 Rule 1 thereof. It would be apposite to quote the observations recorded in the said report which runs thus:-
"3. Orders passed under Rules 1 and 2 or Rule 4 of Order 39 of the Code are subject to an appeal in terms of Order 43 Rule 1(r) read with the provisions of s. 104 sub-s. (1) clause
(i). Then follows sub-s. (2) which provides that "no appeal shall lie from any order passed in appeal under this section" The connected Miscellaneous Appeal, which is pending before the lower appellate court, is undoubtedly an appeal under the provisions of s. 104(1) of the Code of Civil Procedure, read with Order 43 Rule 1 or vice versa. Such an appeal would obviously be barred if the view taken in the decision cited by Mr. Dey be accepted I am, however, unable to accept the said decision as correct in view of the unreported Bench decision of this court in F.M.A.T. 28 of 1976 (Mrs. Anjali Sengupta v. A.K. Das), decided by H.N. Sen and B.C. Ray, JJ. on 30.3.76. That decision clearly holds that an order passed by the lower appellate court under Order 39 of the Code is appealable. It is true that in the said Bench decision there is no reference to s. 104(2) of the Code of Civil Procedure but even then sitting singly I am bound by the said decision and if I had felt inclined ??? differ from it, the only course open to me would have been to refer the matter to a Division Bench for examining the propriety and correctness of the said decision. I feel, however, that the said decision is correct on principle notwithstanding non mention of s. 104(2) of the Code which in my view, bars only a Second Appeal and not a First Appeal under s. 104(1) read with Order 43 Rule 1 of the Code against the orders mentioned therein and passed either by the trial court or by the court of appeal in the exercise of its powers under s. 107(2) of the Code, which expressly provides for the exercise by the appeal court of powers conferred on courts of Original Jurisdiction. Exercise of such powers by the appellate Court would result in original order as distinguished from appellate orders which postulate the existence of original orders passed by a subordinate court and the bar of s. 104(2) applies to only to appeals against such appellate orders. That bar was never intended to apply to original orders whether pasted by the trial court or by the appellate court in the exercise of powers under s. 107(2) of the Code of Civil Procedure on the matters mentioned or included in Order 43 Rule 1 and expressly made appealable under that provision read with s. 104(1) as in that event, a conflict would immediately arise between the two sub-sections (sub-ss. 1 and 2) of s. 104 and in construing s. 104(2) this aspect should not be overlooked. I am supported in this view by the earlier Bench decision of this court reported in ILR 26 Calcutta 275 and the Allahabad Full Bench (ILR 25 Allahabad 174) which, though decisions under the Old Code. Section 588 corresponding to the present s. 104 and Order 43 Rule 1 would apply as the present Code notwithstanding the change of language in s. 104(2) which, as I shall presently show and as already held by the Allahabad High Court in its two Bench decisions ILR 36 Allahabad page 58 and ILR 42 Allahabad page 74 has not altered the law on the point. Indeed the reasons given in ILR 26 Calcutta 275 decided under the 1882 Code apply equally and with full force to the Code of 1908 and I have no hesitation in adopting the same for any present purpose."
The Co-ordinate Bench who decided the matter in Gyan Singh (Supra) did not notice earlier Co-ordinate Bench decision rendered in case of S.R. Chatterjee -Vs- Hindusthan Steel Limited reported in 73 CWN 228 wherein the identical question cropped up and it was held in unequivocal terms that Section 104 provides only one appeal and not successive appeals and therefore the order of injunction passed by the Appellate Court even though comes within the periphery of Order 43 Rule 1 of the Code is not appealable in these words:-
"20. Sakti Ranjan's appeal remains " First Miscellaneous Appeal Tender No. 991 of 1968. It is incumbent upon the appellant to show that there is a statutory right of appeal : just what Lord Macnaghten lays down in (18) Rangoon Botatung Co. v. The Collector, Rangoon, (1912) LR 39 IA 197. The appellant before me does not show that. To quote further from his Lordship's judgment,---
As observed by Lord Bramwell, then Bramwell, J.A., in the case of (19) Sandback Charity Trustee v. North Staffordshire Railway Company, (1877) 3 QBD 1 : "An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment."
Where is that express enactment here? Order 43, rule 1, clause (r), of the Code of Civil Procedure, 5 of the 1908, makes an order under Order 39, rule 2, appealable. Sakti Ranjan's appeal before the Court of appeal below is an appeal thereunder. Now read section 104 ibid. Clause (i), sub-section (1) thereof, provides that an appeal shall lie from any order made under rules from which an appeal is expressly allowed by rules. Order 43, rule 1, clause (r), does allow such an appeal : just the appeal which now pends before the court of appeal below. Then, what calls attention is sub-section (2), section 104, prescribing :
"No appeal shall lie from any order passed in appeal under this section."
Thus, it is plain to be seen that only one appeal is contemplated, not two. And the order of the lower appellate court, though interim, is an order passed in appeal. So, the appeal appears to be incomplete."
Because of the conflicting judgments operating in the field the identical point was raised before the another Co-ordinate Bench in case of Murari Kumar Saraf -Vs- Sri Jagannath Shaw reported in AIR 1994 CALCUTTA 205 and the subsequent Co-ordinate Bench held that the decision rendered in Gyan Singh (Supra) is per inqurium having failed to notice the earlier Co-ordinate Bench decision rendered in S.R. Chatterjee (Supra).
In case of Murari Kumar Saraf (Supra), apart from noticing two Co- ordinate Bench decision, the Court also considers different provisions as quoted herein above and held that no further appeal lies against an order passed by the Appellate Court despite the same having passed under the provisions mentioned in Section 104 and Order 43 Rule 1 of Code in these words:-
"8. Now the question is whether the judgment of this High Court referred to by the Ld. Advocate appearing for the O.P. reported in 1988 CLJ at page 389 is a judgment per incuriam or not. With due respect to the findings and observation made by his Lordship in the aforesaid judgment I must say most respectfully that in view of the decisions of the Supreme Court reported in (1975) Supreme Court Cases page 232 : (AIR 1975 SC 907) and in (1988) 2 Supreme Court Cases at page 602 : (AIR 1988 SC 1531) which I have already quoted it cannot but be held that the above reported judgment is a judgment per incuriam. In the aforesaid judgment his Lordship has relied upon an unreported Division Bench judgment of this High Court which has held that an order passed by the lower Appellate Court under Order 39 of the Code is an appealable order. His Lordship has further noted that in the said judgment there was no reference to Section 104(2) of the Code of Civil Procedure. I have already pointed out that in his judgment reported in 1988 (1) CDJ at page 389, S.K. Mukherjee, J. has not at all referred to the earlier decision of this High Court reported in 73 CWN page 228 which is quite specific on this point. It is to be borne in mind that the interpretation of Section 104(2) is the most important point to decide whether an order passed by the Appellate Court during the pendency of a miscellaneous appeal under Order 39, Rules 1 and 2 is an appealable order or an order to be challenged in revision under Section 115, CPC. It has been held by the Supreme Court that if a decision has been given per incuriam the court can ignore it. So following the consistent view of this High Court and other High Courts which I have discussed in details in the foregoing paragraphs, I must hold with due respect that the judgment reported in 1988 (1) CLJ at page 389 is a judgment per incuriam and there are reasons to ignore it in terms of the reported decision of the Supreme Court.
9. Accordingly in view of the above facts and circumstances and on due consideration of the ratio of decisions of our High Court and other High Courts as discussed above I am of opinion that the preliminary objection taken by the Ld. Advocate appearing for the O.P. that the impugned order is an appealable order and that no revision lies against the said order under Section 115, C.P.C. is not tenable in law. The preliminary objection is over ruled. I hold that the impugned order is not an appealable order and as such the revisional application filed against the said order is quite competent and this Court has jurisdiction to entertain the application under Section 115, C.P.C. The main revisional application which has not been heard on merits will come up for hearing after two weeks."
Another Division Bench in case of Jamuna Chakraborty -Vs- Sital Chakraborty & Ors. Reported in (2007) 3 CHN 166 was invited to consider more or less identical point when a miscellaneous appeal was filed against an order rejecting an application under Order 39 Rule 1 and 2 of the Code filed in a regular first appeal before the Court of Appeal below. A preliminary objection was taken by the Respondent therein that the appeal is incompetent in view of Section 141 of the Code which provides only the procedural part of the Code to apply and not the substantive part. The Division Bench noticed various judgments of the Apex Court including Ram Chandra -Vs- State of Uttar Pradesh reported in (1996) CriLJ 1514 where the Apex Court interpreted the word "proceeding" appearing in Section 141 of the Code and held that it cannot be given restrictive meaning so as to confine it to the original proceeding only, like suit or the original applications, giving rise to the registration and / or initiation of the proceeding for the first time.
It is held that Section 141 of the Code extends the procedural part to be applicable but not the substantive one confined under the Code. Though the right of appeal is provided under Section 104 or Order 43 Rule 1 of the Code of Civil Procedure against an order passed under Order 39 Rule 1 and 2 of the Code, yet the aid and assistance cannot be taken under Section 141 of the Code to trace the right of appeal. The Division Bench succinctly held that though loosely it is said that the appeal is a continuation of the suit but in effect, it is a continuation of a lis which would be evident from the scheme of the Code and the provisions contained under Section 107 and the different procedural parts contained under Order 41 of the Code. It would be axiomatic to quote the relevant portions of the said judgment as under:-
"8. Now the question arises whether an appeal will he against any order passed on such an application under Order 39 Rules 1 and 2 Code filed before the Appellate Court.
9. It is now settled law that by taking support of section 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of section 141 of the Code (See Osmani Khan v. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801 (paragraph 7).
10. Therefore, although the provisions contained in Order 39 Rules 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under section 104 of the Code is not available to an aggrieved person by taking help of section 141 of the Code [See in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa v. Rabindra Nath Deb, reported in 1988 (1) CHN 461].
11. We are also not impressed by the submission of the learned Counsel for the appellant that an appeal being really the continuation of a suit, an order passed on an application under Order 39 Rules 1 and 2 of the Code in an appeal would come within the purview of Order XLIII Rule 1(r) of the same. In our opinion, an appeal may be treated as a continuation of the "lis" between the parties but should never be treated as the continuation of the suit within the scheme of the Code. According to the design provided in the Code, a suit commences with the presentation of a plaint and culminates either in a decree or in rejection of the plaint; however, if the Trial Court returns a plaint for want of jurisdiction, the suit will come to an end, the moment the plaint is so returned and the suit will revive from the date of representation before the Court having jurisdiction and all interim orders passed earlier will have no further effect. If the intention of the legislature were to treat the appeal as the continuation of the suit, it would not separately specify the power of the Appellate Court in section 107 or a different procedure for appeal in Order 41 of the Code.
12. We, therefore, find that this first miscellaneous appeal is not maintainable as the order impugned does not come within the purview of Order 41 Rule 1(r) of the Code because the same is attracted only when an order under Order 39 Rules 1, 2, 2A, 4 or 10 is passed in a suit, and, accordingly, we dismiss this appeal on the ground alone."
In case of Shrimati Mamata Guha -Vs- Pranab Kumar Das reported in (2011) 2 CLT 144 (HC), another Division Bench of this Court after noticing the earlier Division Bench decision rendered in Jamuna Chakraborty (Supra) held:-
"20. This is an appeal against the order, assuming for the sake of argument, rejecting an application for mandatory injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure by Lower Appellate Court. The applicants under Order 39, Rules 1 and 2 of the Code could be filed in the Lower Appellate Court only by resorting to section 141 of the Code of Civil Procedure, which applies only to the procedural matters.
23. We, however, make it clear that we have not gone into the merits of the claim and the counter-claim of the parties involved in this appeal. This order of dismissal shall not prevent the appellant to approach the appropriate forum in accordance with law.
24. As prayed for, the office is directed to return the certified copy of the order impugned to the learned Advocate-on-Record for the appellant on his furnishing photocopy thereof."
Subsequently, the Special Bench of this Court in case of Sabyasachi Chatterjee -Vs- Prasad Chatterjee & Ors. Reported in (2013) 2 CHN 142 was constituted by the Hon'ble Chief Justice as the referring Bench noticed the conflicting decisions on the above legal point. One of the points of reference before the Special Bench was whether an appeal is maintainable against the order passed under Order 43 Rule 1(r) of the Code of Civil Procedure. The case before the Special Bench relates to the filing of the Revisional Application under Article 227 of the Constitution of India against an order of injunction passed in a miscellaneous case. Various provisions of the Code viz. Sections 104, 107, 141 and Order 43 Rule were noticed and the Special Bench held that though the power is conferred upon the Appellate Court to exercise all the powers of the original Court under Section 107(2) of the Code, yet such powers are brindled and / or abridged to some extent and the interlocutory order passed in the aforesaid proceeding is not amenable to be challenged by way of an appeal as the same is relatable to a procedural part and not the substantive part of the Code of Civil Procedure. The relevant observation of the Special Bench in this regard is reproduced as under:-
"33. The only matter that remains to be addressed is as to the nature of the authority exercised by a Court in seisin of any Miscellaneous proceedings or other Civil proceedings not governed in terms by the Code. In other words, the question is that if only the procedural part of the Code is made applicable by Section 141 thereof to Miscellaneous proceedings and other Civil proceedings not governed in terms by the Code, how would such Courts draw their authority for making substantive Interlocutory Orders of injunction or the like? The answer to that lies in the recognition that every Court falling within the branch that is the judiciary discharges the sovereign power of the State, subject to the bounds of its territorial and pecuniary authority and confined to the lis before it. Every Court - and it is not necessary in this context to extend the discussion to Tribunals and other judicial and quasi-judicial fora - enjoys an element of inherent jurisdiction to meet the ends of justice and to prevent the abuse of the process of the Court. Section 151 of the Code is merely the statutory recognition of the principle and cannot be regarded as the solitary repository of such authority. Civil proceedings instituted before a Civil Court will not only be regulated by the practice and procedure obtaining in the Civil Court, but unless the statute governing the proceedings inhibits the residuary authority in the Civil Court as a Court, the substantive right to do justice inheres in a Civil Court merely by virtue of it being a Court. It is such authority - akin to Section 151 of the Code but definitely not flowing therefrom - that vests in a Civil Court in seisin of Miscellaneous proceedings or other Civil proceedings not governed in terms by the Code that empowers a Civil Court in such matters to pass orders in the nature of injunction and the like. But such orders and even the final order culminating the lis in the Court of first instance would not be amenable to Appeal unless expressly provided for in some statute. The mere extension of the procedural part of the Code to such proceedings by virtue of Section 141 of the Code cannot admit of a situation permitting an Appeal therefrom under the Code. The distinction between Appeals from orders made under the Code and Appeals from orders under any special or local law is recognised in Section 108(b) of the Code. However, the right of Appeal under any Special or Local law has to be expressly provided in such law itself and cannot be founded on any provision of the Code."
In view of the judgment rendered by the Special Bench, which binds the Bench of lesser quorum leads to inescapable conclusion that the order passed by the Appellate Court against which ordinarily an appeal would lie under the Code of Civil Procedure but such power being exercised under Section 107(2) of the Code is therefore not amenable to be challenged by way of an appeal before the higher forum.
Apart from the same, this Court would like to add that the language used in Section 104(2) of the Code needs to be noticed in this regard as well. It expressly prohibits an appeal from any order passed in appeal under this Section. The word "any" appearing before "order passed in appeal under the Section" conveys a clear legislative intent that such order is not amenable to appeal. The word "any" cannot be interpreted in a restrictive sense so as to imbibe only the final order and not the interlocutory order. The word "any" is defined in Advanced Law Lexicon (3rd Edition) as 'all', 'each', 'every', 'some', or 'one' or more out of several". It may often be synonymous with either 'every' or 'all' depending upon the context in which it is used. The rational meaning which can be attached or attributed to the adjective 'any' is 'no matter what' and therefore should be read with the object and the purpose used in a particular legislation. In Black's Law Dictionary (6th Edition), the word 'any' has a diverse meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given Statute depends upon the context and the subject matter of the Statutes. If the said adjective is preceded by the negative word, it should be so construed so as to uphold the aim and object underlying the incorporation thereof. Sub Section 2 of Section 104 of the Code expressly forbids any appeal to be filed from any order passed in an appeal under the Section and in view of the definition assigned to the word 'any' even against interlocutory or interim order apart from final order, no further appeal lies.
Thus, the revisional application is maintainable against any order passed by an Appellate Court for which an appeal is provided under the Code of Civil Procedure.
In C.O. 2652 of 2016, the revisional application is filed challenging an order dated 22nd March, 2016 passed by the Additional District Judge, First Track Court, Contai, Purba Midnapore, in Title Suit No. 25 of 2016 dismissing an application under Order 22 Rule 10 of the Code of Civil Procedure. Though an order passed under Rule 10 of Order 22 giving or refusing to give leave is amenable to be challenged in appeal under Order 43 Rule 1(l) of the Code yet the said order cannot be challenged by further appeal having passed by the Appellate Court in exercise of the power under Section 107(2) of the Code.
As this Court held that the revisional application is maintainable, the impugned order needs scrutiny on merit to find out whether the same can be sustained or not. The facts involved therein relates to the validity of several deeds appointing Mohant in respect of Chhota Math by the then Mohant Sri Sri Ishwar Kishore Kishori Jew Thakur, Sri Sri Brajkishore Jew Thakur and Sri Sri Ishwar Gopinath Jew Thakur. Math is a religious trust founded 300 years ago to propagate the preaches of Vaishnab School of Hindu Law and is commonly known as Chhota Math. The deities of one of the said religious trusts own various properties in and around Kantai village, District of Purba Midnapur and are managed and looked after by the Mohant of the said Math. There is another Math, which is known as Baro Math and it is not in disputed that each of the aforesaid Maths are managed by a separate Mohant. One Basanta Das Adhikary was the Mohant of the Chhota Math and Bishnupada Das Adhikary was the Mohant of the Baro Math. The Basanta Das Adhikary executed and registered a deed dated 4th May, 1973 appointing Bishnupada as Mohant of the Chhota Math but subsequently revoked the said deed by executing a Deed of Revocation on 1st August, 1974 as the Bishnupada Das Adhikary failed and neglected to pay attention to daily Seva Puja of the deity installed in Chhota Math.
Subsequently, Basanta executed another deed dated 7th December, 1976 which was also registered appointing Rabindranath Das Adhikary as Mohant. In the year 1993, the Bishnupada claimed as Mohant of Chhota Math as well on the basis of the said deed dated 4th May, 1973 and filed a Title Suit No. 123 of 1993 challenging the Deed of Revocation as well as the Deed of Appointment in favour of Rabindranth. It is alleged therein that Bishnupada is performing his duties of Seva Puja and also managing the properties of the deity installed in Chhota Math and taking advantage of the old age of Basanta, Rabindranath in coalition with Mrityunjay Maity and Sachin Jana managed to get the said deed cancelled and / or revoked and further Deed for Appointment in favour of Rabindranath. It is further alleged that the signature appearing in the impugned deeds are the forged signature of Basanta and it is only after coming to know of the fact that several properties belonging to deity had been transferred on the basis of the subsequent appointment, the present suit is filed. It was all along the case of Rabindranath that after appointment and on the death of Basanta, he is looking after the said Math and also offering the Seva Puja of the deities. He denies the allegations made in the plaint. The said suit came up for final disposal on 28th February, 2006 and by a judgment and decree of the even date the Trial Court decreed the said suit.
Rabindranath filed an appeal against the said judgment and decree before the District Judge, Purba Midnapur which was registered as Title Appeal No. 25 of 2006. The said appeal was subsequently transferred to the Additional District Judge, Fast Track Court, 2nd Court, Contai, Purba Midnapur. During the pendency of the said appeal, Rabindranath died on 5th April, 2015. An application under Order XXII Rule 10 of the Code of Civil Procedure is taken out by the Petitioner claiming as Mahant duly appointed by Rabindranath by executing a registered deed dated 19th December, 2014.
The Trial Court dismissed the said application as the Ramapada, the Petitioner herein, firstly signed as Ramapada Panda but deleted the surname 'Panda' by incorporating 'Das' and the photographs appended to the said deed reveals that Ramapada was wearing the English shirt and had no turban on his head. The Trial Court further held that it is unclear as to why a married man of 30 pious years could be adopted by Rabindranath and inducted him as Mohant. The Trial Court further noticed that though the Rabindranath signed in English while filing the Memorandum of Appeal but the said deed was executed by putting LTI (Left Thumb Impression) without any explanation.
The learned Advocate appearing for the Petitioner challenged the said order on the ground that merely because the photograph was appended to the deed of Ramapada wearing shirt cannot invite the Court to draw an adverse inference. According to him, in modern times it is not necessary that Mohant should remain in traditional attire. What is necessary is whether he has taken 'Diksha' and adopted the Vaishnav School of Hindu Law. It is further submitted that there is no fetter to appoint a married man as Mohant and in absence of any express clause in 'Arpannama', the Court cannot include something, which is conspicuously absent therein.
On the other hand, the learned Advocate for the Plaintiff / Opposite Party submits that there is no infirmity and / or illegality in the impugned order and the Court has rightly rejected the said application. It is further submitted that a man aged 30 years cannot be adopted and therefore the appointment is invalid. It is thus submitted that Rabindranath could not appoint the Mohant after judgment and decree passed declaring his appointment to be illegal and void.
Before this Court proceeds to decide the matter on merit, this Court feels necessary to reproduce the provisions contained under Order XXII Rule 10 of the Code, which runs thus:-
"Order XXII R.10. Procedure in case of assignment before final order in suit.---
(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
It thus appears that the Court may grant leave to any person who claims any interest to have been assigned, created and / or devolved during the pendency of the suit, to continue with the suit. The aforesaid provision is based on the principles that the carriage of the proceeding cannot be brought to an end because the interest of a party in relation to subject matter of the suit has devolved upon another during the pendency of the suit but the suit may be continued by or against such person acquiring interest with the leave of the Court. The discretion to implead or not to implead the parties to continue with the suit should be exercised judicially and not capriciously or arbitrarily. If the interest of the Appellant is claimed to have been assigned and / or devolved upon a person who intends to carry with the suit or appeal or the proceeding, the one and the foremost thing which the Court should consider whether he can continue with the suit or appeal or the proceeding if the original party can continue it.
In other words, if original Appellant can continue with the appeal, the person claiming the devolution of interest from such person has a right to continue with the appeal. Though the interest of Rabindranath had been declared to have lost yet he carried the order to the Appellate Court and it is open to the Appellate Court to decide as to whether the judgment and decree passed by the Trial Court is proper and legal. If a person is claiming a right through such Appellant, the Court should not deny the carriage of proceeding on such unsubstantiating perception as reflected in impugned order. Though it is loosely said that the appeal is a continuation of the suit but there is no ambiguity to say that it is a continuance of the lis. The question whether Rabindranath was legally appointed as Mohant by Basanta is still sub judice and in the event the person appointed by Rabindranath is not allowed to continue with the appeal, it would automatically bring end to the appeal and judgment and decree would attain finality.
This Court, therefore, set aside the impugned order as a consequence whereof the application under Order XXII Rule 10 of the Code stands allowed.
The Court of Appeal below is directed to substitute the Petitioner in place and stead the deceased Appellant and the Memorandum of Appeal shall be amended accordingly.
The Trial Court is directed to dispose of the proceeding as expeditiously as possible and preferably within one month from the date of communication of this order.
(Harish Tandon, J.)