Calcutta High Court
Mira Banik And Anr. vs Smita Bhattacharyya And Ors. on 11 August, 2003
Equivalent citations: 2004(1)CHN261
Author: D. K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D. K. Seth, J.
1. This appeal will be heard. No notice need be issued. Records need not be called for.
In Re: CAN 5872 of 2003 When the application for interim order was taken up, Mr. Chatterjee, the learned Counsel for the respondents, appears and opposes the grant of interim order. Both Mr. Bhattacharya, the learned Counsel appearing for the appellants and Mr. Chatterjee, appearing for the respondents had made their respective submission on the application. Virtually both have addressed the Court on the merits of the appeal itself. Therefore, by consent of the parties, the appeal is treated as on day's list for hearing and is taken up for hearing and is disposed of as under.
2. It appears that 'A' Schedule property was purchased by the plaintiff Nos. 1 and 2 and the defendant No. 1 sometimes in December 2002. In the plaint, the date of purchase has not been mentioned. In paragraphs 4, 5, 6, 7, 8 and 9, the following statements have been made :
"4. That the property described in Schedule-A originally belonged to Surya Narayan Mukherjee who transferred the property described in Schedule A in favour of the plaintiff No. 1 Smita Bhattacharyya, the plaintiff No. 2 Rina Paul and the defendant No. 1 Aneeta De. By virtue of the said transfer both the plaintiffs acquired 2/3rd undivided share in respect of the property described in the Schedule-A.
5. That the property described in Schedule A is a joint property among the plaintiffs Smita Bhattacharyya, Rina Paul and the defendant No. 1 Aneeta De. Joint possession is becoming inconvenient among the plaintiffs and the defendant No. 1.
6. That the property described in the Schedules B and C originally belonged to Purna Charan Addy. Purna Chandra Addy died leaving behind him his two sons Bimal Charan Addy and Gopinath Addy. Bimal Charan Addy died leaving behind him his two sons, the defendant No. 2 Sudhir Kumar Addy [predecessor of defendants 2(a) to 2(c)] the defendant No. 3 Sunit Kumar Addy and one daughter, Mira Banik and their mother or wife of Bimal Charan Addy i.e., Madhabilata Addy, Madhabilata Addy has since expired.
7. That by virtue of a Deed of Partition executed on 19.7.1962 by said Gopinath Addy and the heirs of Bimal Charan Addy and defendants No. 3 to 4 along with their mother Madhabilata Addy effected partition of the erstwhile joint properties including the properties described in Schedule B & C.
8. That by virtue of the Deed of Partition executed on 19.7.1962 the property described in Schedule "B" was allotted in favour of Gopinath Addy whereas the property described in Schedule "C" was allotted to Sudhir Kumar Addy, defendants No. 3 and 4 along with their mother Madhabilata Addy. The parties have transferred their properties (other than the suit properties) allotted to them or their predecessors by virtue of the Deed of Partition.
9. That at or about the time when the partition was effected there was no line of demarcation between B & C Schedule properties. Later in the year 1999, Sudhir Kumar Addy and the defendants No. 3 & 4 arbitrarily gave a partition wall. Such partition wall is not in accordance with the Deed of Partition dated 19.7.1962. The plaintiffs have repeatedly measured B & C Schedule properties and every time found that said Sudhir Kumar Addy and defendants No. 3 & 4 gave partition wall in excess of their share. The matter did not end there. Sudhir Kumar Addy and the defendants No. 3 & 4 have been bringing purchasers to sell their inflated portion."
3. On the basis of the allegation made in paragraphs 11 and 12, partition has been claimed. Paragraphs 11 and 12 are quoted as under :
"11. That it has already been mentioned above that the property described in Schedule-B was allotted to Gopinath Addy by virtue of Partition Deed dated 19.07.1962. Gopinath Addy died leaving behind him his son Sushil Kr. Addy. Before his death Gopinath Addy executed a Will and thereby bequeathed B Schedule properties as also other properties in favour of his son Sushil Kumar Addy, who applied for grant of Probate of Will of Gopinath Addy. It was registered as Probate Misc. Case No. 24 of 1990 in the Court of District Judge, Puri. During pendency of the Probate proceeding said Sushil Kumar Addy died leaving behind him his three daughters - Plaintiff No. 1 Smita Bhattacharyya then Addy as unmarried, Plaintiff No. 2, Rina Paul and the Defendant No. 1, Aneeta De then Addy as unmarried. The three daughters of Sushil Kr. Addy entered appearance in Probate Misc. Case No. 24 of 1990 and prayed for grant of Letters of Administration along with Probate to them. The Learned Civil Judge, Senior Division, Puri granted Letters of Administration along with Probate of Will of Late Gopinath Addy to the Plaintiff No. 1, Smita Bhattacharyya, Plaintiff No. 2 Rina Paul and the Defendant No. 1 Aneeta De then Addy, vide Probate Misc. Case No. 24/32 of 1990/1993.
12. That as such each of the Plaintiff No. 1 Smita Bhattacharyya, Plaintiff No. 2, Rina Paul and the Defendant No. 1 Aneeta De nee Addy has 1/3rd undivided share in respect of the property described in Schedule B. Their joint possession was becoming inconvenient. Hence again on 03.02.2003 the plaintiffs requested the defendant No. 1 to effect amicable partition. The defendant No. 1 refused."
4. Prom the above statement, it appears that the 'C' Schedule property was the only property in respect of which the interest of the defendants No. 2 series, 3 and 4 have been asserted by the plaintiffs. Admittedly, the defendants No. 2 series, 3 and 4 are residents of the State of Orissa. The 'C' Schedule property is situated in Orissa. The only ground that has been sought to be urged before this Court by Mr. Chatterjee was that the defendants No. 2 series, 3 and 4 had constructed a boundary wall in between 'B' and 'C' Schedule property, as stated in paragraph 9. While constructing the wall, the said defendants No. 2 series, 3 and 4 had encroached a part of the 'B' Schedule property. According to Mr. Chatterjee, no demarcation was there though there was a partition in 1962. Therefore, the suit for partition is filed in West Bengal as against the said defendants No. 2 series, 3 and 4, since one of the joint property (Schedule 'A' property) is situated within State of West Bengal. From paragraph 4, it appears that this property was purchased by the plaintiffs No. 1 and 2 and defendant No. 1 jointly. Admittedly, in the plaint, no statement is made that the defendants No. 2 series, 3 and 4 had any iota of interest either in 'A' or 'B' Schedule property. The question of non-demarcation of 'B' and 'C' Schedule property does not arise till 41 years of execution of Deed of Partition on 19th July 1962. Mr. Chatterjee had produced the xerox copy of the Deed of Partition, which is admitted by Mr. Bhattacharya to be the Deed of Partition. This xerox copy of the Deed is taken on record by consent of the parties.
5. In the said Deed of Partition, the following statements have been made:
"2. That the common ancestor Purno Chandra Addy died in the year Nineteen hundred and forty (1940) and on his death his estate was inherited by his two sons Bimal Charan Addy and Gopi Nath Addy mentioned in the genealogy given above.
3. That Bimal Charan Addy died in Nineteen Hundred Sixty (1960) and while he was alive a separation took place in the family about four years ago and the entire estate left behind by the common ancestor Purno Chandra Addy was divided into two equal parts :--
One part i.e., the properties described in Schedule A below fell to the share of Bimal Charan Addy and the other part i.e. the properties described in Schedule B below fell to the share of Gopi Nath Addy, second party.
4. That after the death of Bimal Charan Addy, Schedule-A properties have been inherited by the members of the first party.
5. That since the date of separation parties are in separate enjoyment and possession of the property that fell to their respective share in partition.
6. That since the date of partition of family property no Partition Deed has been executed and registered by the parties,
7. That the value of the property described in Schedule A below is worth Rupees Twelve Thousand (Rs. 12,000/-) and the value of the property described in Schedule B is worth Rupees Twelve Thousand (Rs. 12,000/-).
8. That the parties agree that the division of the family property that took place four years back should be engrossed in a document.
9. That the first party will ever remain in separate possession of the property described in Schedule A and has no claim over the property described in Schedule B.
10. That the second party will ever remain in separate possession of the property described in the Schedule B and has no claim over the property described in Schedule A."
6. This clearly shows that the partition had taken place in 1958 and since then Bimal Charan was possessing the property separately, Bimal died in 1960. On the death of Bimal, the defendants No. 2 series, 3 and 4 then a spinster, along with their mother, Madhabilata inherited the property. Since no Deed of Partition was executed and registered, the said Deed dated 19th of July, 1962 was executed and registered. From the averments made in the said Deed of Partition, it appears that there cannot be any jointness in respect of 'C' Schedule property (being the A Schedule property in the said Deed) between the defendants No. 2 series, 3 and 4 and the plaintiffs. Thus, there cannot be any cause of action for partition as against them. Since no interest has been admitted in the plaint in respect of 'A' and 'B' Schedule property, the cause of action cannot be allowed to be included in the cause of action as against the defendant No. 1, who is admittedly a resident in the State of West Bengal, simply because 'A' Schedule property was purchased jointly by the plaintiffs No. 1 and 2 and the defendant No. 1 in December, 2003.
7. That apart the cause of action is pleaded against the defendant No. 1 alone in paragraph 12 of the plaint. In the plaint, no averment of cause of action for partition is pleaded as against the defendants No. 2 series, 3 and 4. The alleged cause of action pleading encroachment has nothing to do with partition and is independent of the cause of action against the defendant No. 1, who is sailing in the same boat with the plaintiffs so far as the allegation of encroachment is concerned. As such this cause of action cannot be included in a suit for partition as pleaded in paragraph 12 of the plaint. The learned Court below ought to have looked into the statements made in the plaint and the application from which it appears that the plaintiffs could not have any cause of action as against the defendants No. 2 series, 3 and 4 in respect of the 'C' Schedule property in a suit for partition. Even if any cause of action could have been alleged as against them that had arisen within the State of Orissa. Such cause of action is independent of the cause of action against the defendant No. 1. It cannot be joined together. There cannot be a cause of action for partition in respect of a property already partitioned. Therefore, there cannot be any material, on the basis of the plaint, to find out a prima facie case in favour of the plaintiffs. As such, the interim order that was granted cannot be sustained and is accordingly set aside so far as it relates to the property described in Schedule 'C' of the plaint as against defendants No. 2 series, 3 and 4 respectively.
8. From the discussion above, it is evident that the plaintiffs have abused the process of law and that the Court has not kept itself within its bounds. In fact, the Court has a duty to find out prima facie case on the basis of the materials placed before it. It cannot act mechanically simply because jointness had been claimed in between parties related by blood. The Court has to scrutinize the averments made in the plaint and the application for injunction and the materials placed before it while considering the existence of a prima facie case. It has to apply its mind. It cannot proceed cursorily. From the facts disclosed, it seems that the plaintiffs had attempted to subterfuge the Court's process in extending its jurisdiction outside its territorial limits simply by roping in the defendants No. 2 series, 3 and 4. The averments made in the plaint and the application for injunction are staring on the face of the plaintiffs. It is very difficult to miss or overlook. If the Court fails to examine the same or if the Court misses it or overlooks it, then the Court has failed to keep itself within its bounds. It has failed to discharge its judicial duty. Court cannot allow itself to aid or abate a party to abuse its process. It cannot allow itself to be misled. Court is not supposed to look into the apparent. It has to look into the real. It has a duty to lift the veil and peep into the materials placed before it so as to come to a conclusion that a prima facie case has been made out.
9. At the same time, when it comes to the notice of the High Court, it cannot remain idle onlooker and allow the judicial process to drift away from its judicial norms and its process are abused. Article 227 of the Constitution has empowered the High Court to exercise power of superintendence over the subordinate Courts. If the High Court is of opinion, when it comes to its notice, that the process of the Court are being abused or that the Courts are not keeping itself within its bounds and that, on facts, it is a case that a party is overriding the judicial process and the Courts fail to prevent such abuse of process and fails to maintain the judicial dignity and proper judicial approach in that event, the High Court may invoke its power of superintendence under Article 227 of the Constitution of India. If it is apparent on the face of record that the Courts had failed to keep itself within its bound and had exceeded its jurisdiction and indulged in proceeding in an unprecedented manner bringing in judicial anarchy, procedural disaster in blatant disregard of the accepted principle of law, assuming jurisdiction though it ought not to have assumed, exceeding its jurisdiction, in such cases, it is the duty of the High Court to see that the purity of justice, dignity of the judicial institution is restored and preserved.
10. It is an institution where the people repose faith. It is the justice, which this institution dispenses. It is the confidence of people, who approach the judiciary, that it commands. It is the sanctity, which strengthens the justice-delivery-system. These are the foundations on which the entire system is founded. If this foundation is allowed to be eroded then no sooner the edifice of justice will crumble down. People will lose faith. People will lose confidence. People will doubt the sanctity. The dignity of the institution will fall in the estimation of the people. Such a situation would hit at the root of the essentiality of the existence of the institution itself. It is the duty of the High Court to see that the institution survives with all its sanctity and dignity commanding faith and confidence of the people in it.
11. The instrumentality under Article 227 is an essential weapon, provided to the High Court through wisdom of the founding fathers of the Constitution, to be used whenever it is needed according to the need of the hour. It can be used and utilized to defend as a shield or offend as a sword, if necessary, even to the extent of calling for records, which are not even challenged before the High Court, whenever it comes to its notice that it is necessary so to do. If situation warrants, in order to keep the Courts within its bounds, in order to prevent abuse of process, in order to preserve the sanctity, restore the dignity, maintain the faith and inspire confidence of the people in it, the High Court may even quash the plaint or the proceeding in appropriate cases.
12. In State of Haiyana v. Bkajan Lal, , it was held that the power of superintendence by the High Court under Article 227 is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Article 227 has no limits. In Waryam Singh v. Amarnath, , it was held that the High Court had not only administrative superintendence over the subordinate Courts and Tribunals but it has also the power of judicial superintendence. The Apex Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, (SB), where the High Court said that the power of superintendence conferred by Article 227 was to be exercised in order to keep the subordinate Courts within the bounds of their authority and not for correcting their mere errors. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte, , the Apex Court reaffirmed that the power of superintendence of High Court under Article 227. It said that its function was limited to seeing that the subordinate Court or Tribunal functioned within the limits of its authority. In Negendra Nath Bora v. Commissioner of Hills Division, , this Court observed that under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, , it was held that the High Court in exercise of the power under Article 226/227 of the Constitution of India is empowered to quash the plaint in order to prevent abuse of the process of law and Courts.
13. In the case of Shyama Devi v. 7th Additional District Judge, Allahabad, AIR 1998 All 392, it was held that in case of abuse of the process of Court, it is open to the High Court in exercise of the jurisdiction under Articles 226/227, at its discretion, in an appropriate case, to quash the plaint and set aside the proceedings thereout, relying on the decision in the case of Raj Kapoor v. Civil Judge, Kanpur, 1987 ALJ 137: 1988 All LJ 358. The High Court is empowered to quash the complaint or the suit or the proceedings in exercise of power under Articles 226/227 of the Constitution of India. It was so held in the case of Bishwanath Malik v. Munsif Magistrate, Allahabad, 1996 (27) ALR 475: 1996 All LJ 1032, Mahadevi v. Civil Judge, Farrukhabad, 1987 (1) ARC 406: 1987 All LJ 870, Gulab Chandra v. Munsif West, Allahabad, 1988 (14) ALR 265 and in the case of Raj Kumari Kapoor v. Civil Judge, Kanpur, 1987 ALR 137. 1988 All LJ 358. Even if relief is not sought for, yet necessary orders can be passed by the High Court if circumstances so required. It was so held in the case of Badruddin and Party v. State of U.P., 1992 (2) ALR 731. In the cases of Municipal Corporation of Delhi v. Kamala Devi, , Natwar Textile Processors Put. Ltd. v. Union of India, , Amitabh Bachchan Corporation Ltd. v. Mahilajagran Manch, and in the case of Union of India v. Darshana Devi, , it was so held that if there was an abuse of process of law, the Court may award exemplary penalty. This view can be interpreted to mean that the penalty may be in the form of quashing of the plaint and the whole proceedings or to take any other step it may deem fit and proper in a given circumstance.
14. Article 227 may not require making of an application in order to enable the High Court to invoke such jurisdiction. It can even invoke such jurisdiction whenever it is of the opinion that the power of superintendence requires to be activated in a given situation that comes to its notice. While invoking power of superintendence, pass appropriate order as it may think just and proper. But the only embargo in its exercise is that no adverse order could be passed against a party unless he is given an opportunity and heard. Before passing appropriate order in exercise of its power of superintendence, it is incumbent on the High Court that the parties involved should be given an opportunity to place their cases before the Court. Only after hearing them and examining the record, if there are materials to lead to the formation of an opinion by the High Court that the situation demands invoking its jurisdiction under Article 227, in that event, it may exercise it and pass necessary order as in its opinion is just and proper. It can do so even without an application. The High Court has also the power to treat an application under Article 226 as one under Article 227 of the Constitution of India as is held in the case of Pepsi Foods Ltd, v. Special Judicial Magistrate, .
15. This power of superintendence includes power of judicial review to keep the inferior Courts and Tribunal within the bound of their authority and to see that they do what their duty requires and that they do it in a legal manner, D.N. Banerjee v. R.K. Mukherjee, . The power of judicial superintendence conferred by Article 227 is not limited by technical rules, which govern the exercise of the power to issue writ to certiorari under Article 226. The power under Article 226 can be exercised only on an application of a party. But the power under Article 227 may be exercised by the Court also suo motu Hari Vishnu Kamath, v. Syed Ahmad Ishaque, . The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party.
16. In this case, copy of the plaint is available on record. Mr. Chatterjee admits the same to be a correct copy. He had produced a xerox copy of the deed of partition, which is admitted to be true copy by Mr. Bhattacharya. Mr. Chatterjee had made his submission on being confronted with the proposition as to the question of cause of action for partition on the basis of the averment made in the plaint and the territorial limit. This he attempted to substantiate through production of the deed of gift.
17. After perusing the plaint, the deed of gift and hearing the submission of Mr. Chatterjee, it is abundantly clear that the Courts have exceeded its limit and jurisdiction in the given circumstances as discussed hereinbefore. Article 227 of the Constitution has conferred power on the High Court to exercise superintendence over the Courts subordinate to it. This jurisdiction has been given to the High Court to keep the subordinate Court within its bound and jurisdiction.
18. The scope and ambit of Article 227 vis-a-vis the power of superintendence of the High Court was also considered in the case of Daya Ram and Anr. v. 2nd Additional District Judge, Mirzapur, 1996 All CJ 751; Arun Lata v. Civil Judge, Bulandshahar, and Geeta Pump (Private) Limited v. District Judge, Saharanpur and Ors., . Having regard to the ratio decided in these cases, in my view, the facts and circumstances of this case satisfies the ingredients attracting the application thereof.
19. In our view, it appears that it is sheer abuse of process of Court as disclosed before this Court. This Deed of Partition, produced by Mr. Chatterjee, in an admitted position, which has also been admitted in paragraph 8 of the plaint; therefore, we cannot permit abuse of process of Court. We, therefore, invoke our jurisdiction under Article 227 of the Constitution. The Court cannot shut its eyes and allow the Trial Courts to act de hors the principles of law. If the subordinate Courts exceed their limit, in exercise of Article 227 of the Constitution, the High Court can put them within their bounds.
20. In the circumstances, in exercise of power of superintendence, we hereby expunge the names of defendants No. 2 series, 3 and 4 from the plaint as well as the property described in Schedule 'C' from the subject-matter of the said partition suit. The plaint stands corrected to that extent. This appeal is, thus, allowed. The application also stands disposed of. There will be no order as to costs.
21. However, this order will not affect or prejudice the rights, if any, of the plaintiffs to sue the defendants No. 2 series, 3 and 4 in a properly framed suit filed before the appropriate Court having territorial jurisdiction over the 'C' Schedule property. Neither this order will affect the proceedings of the suit in respect of the 'A' and 'B' Schedule properties between the parties other than defendants No. 2 series, 3 and 4.
Urgent xerox certified copy, if applied for, be supplied to the learned Advocate for the parties, on priority basis.
S.K. Gupta, J.
22. I agree.