Calcutta High Court
(F&S) Co-Operative Housing Society Ltd vs Shri Debabrata Sen & Ors on 19 August, 2008
Author: Pinaki Chandra Ghose
Bench: Surinder Singh Nijjar, Pinaki Chandra Ghose
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IN APPEAL FROM AN ORDER PASSED IN ITS
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
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PRESENT :
The Hon'ble Chief Justice Surinder Singh Nijjar And The Hon'ble Mr. Justice Pinaki Chandra Ghose G. A. No. 2059 OF 2008 A.P.O.T No. 245 OF 2008 With G. A. No. 2317 of 2006 G. A. No. 3197 of 2006 G. A. No. 2584 of 2007 E.O.S No. 3 of 2006 WEST BENGAL GOVERNMENT EMPLOYEES (F&S) CO-OPERATIVE HOUSING SOCIETY LTD.
VERSUS SHRI DEBABRATA SEN & ORS.
For the Appellants : Mr. Jayanta Mitra, Sr. Adv., Mr. Ranjan Deb, Sr. Adv., Mr. Surajit Nath Mitra, Sr. Adv., Ms. Jharna Ghosh, Adv., Mr. Jishnu Saha, Adv., Mr. Samrat Sen, Adv., Mr. Manik Das, Adv., Mr. Ritabrata Mitra, Adv., Mr. D. Mitra, Adv.
For the Respondents : Mr. Hirak Mitra, Sr. Adv., (No. 1 to 3) Mr. Pradip Dutta, Sr. Adv., Mr. D. Bera, Adv., Mr. C. K. Dutta., Adv.
For the Respondents : Mr. Anindya Kumar Mitra, Sr. Adv., (No. 4 to 7) Mr. Pratap Chatterjee, Sr. Adv., Mr. Abhrajit Mitra, Adv., Mr. Anirban Roy, Adv., Mr. Arindam Banerjee, Adv., Mr. Sourav Ghosh, Adv., Mr. Tanoy Chakraborty, Adv.
Heard on : 08-7-2008, 10-7-2008, 15-7-2008, 16-7-2008 and 17-7-2008.
Judgment on: 19th August, 2008.
PINAKI CHANDRA GHOSE, J. : This appeal is directed against an order dated 19th June, 2008 passed by the Hon'ble Interlocutory Judge, whereby His Lordship was pleased to dismiss the suit being E.O.S. No. 3 of 2006.
The facts of the case briefly are as follows:
On 13th March, 1968, an agreement for sale was registered in favour of the appellant/plaintiff by the owners of the land. The said land was vested into the State under the Estates Acquisition Act vide memo issued by the Additional District Magistrate (L.R), 24 Parganas with effect from 22nd September, 1971 and the State of West Bengal granted a long term lease of 30 years in favour of the appellant/plaintiff. A writ petition was filed challenging the said vesting order. On 24th September, 1992, the Hon'ble Writ Court was pleased to set aside the said vesting order and allowed the writ petition filed by the owners.
On 24th July, 1995, the appellant/plaintiff herein filed a suit being T.S. No. 127 of 1995 in the Court of the Learned 5th Additional District Judge at Alipore against the owners for specific performance of the agreement dated 3rd March, 1968. On 4th September, 1995, the appellant/plaintiff herein filed a petition in the said T. S. No. 127 of 1995 for withdrawal of the said suit with a liberty to file afresh. The defendant/owners herein in the said suit filed an objection to the said petition for withdrawal with liberty to file fresh suit.
On 22nd November, 1995, the defendant was allowed to file written statement by 29th November, 1995. In the meantime, application for transfer of the suit under Clause 13 of Letters Patent was moved by one of the co-owners in the High Court and His Lordship Ruma Pal, J. (as His Lordship then was) was pleased to grant a stay of the proceeding of the said suit pending before the Alipore Court.
On 22nd November, 1995, three of the owners of the said properties filed an application being ALP No. 19 of 1995 for transfer of various suits pending in different courts to the High Court under Section 24 of the Code of Civil Procedure and Clause 13 of the Letters Patent.
On 29th November, 1995, the said fact was placed before the District Court and the matter was adjourned till 28th December, 1995. On 4th December, 1995, His Lordship Ruma Pal, J. was pleased to issue Rule and directed the parties to file affidavits in the application filed under Clause 13 of the Letters Patent. However, His Lordship was pleased to pass the following order :
"Until disposal of this application the ad-interim order of stay already passed will continue. This order will not however prevent any party from unconditionally withdrawing any procedure which is sought to be transferred by virtue of this application.
All parties to act on a signed copy of the minutes of this order on the usual undertaking."
On 20th December, 1995, the said order of the Hon'ble High Court was brought to the notice of the District Court and the defendant nos. 2 to 4 in the said petition prayed for stay of the further proceedings in compliance with the High Court order and the matter was directed to be placed on the Board on 16th February, 1996. However, from time to time, the matter was adjourned and on 4th of March, 1997, the said application filed by the plaintiff/appellant was taken up by the Learned 5th Additional District Judge, Alipore where the Learned Court was pleased to pass the following order :
"Perused the advocates letter dated 11.3.96, wherein it has been stated that the Hon'ble Court has been pleased to give liberty to the plaintiff to withdraw the suit. In the circumstances, the petition succeeds.
C. F. paid are correct.
Hence Ordered:
That the suit be and the same is withdrawn without costs."
On 18th April, 1996, two Mandamus Appeals were filed being F.M.A.T. No. 3357 of 1992 and F.M.A.T. No. 3391 of 1992 before the Court from an order dated 24th of September, 1992 passed in C.O. No. 11737 (w) of 1991. Both the appeals were dismissed by the Hon'ble Division Bench of this High Court affirming the order of the Hon'ble Writ Court setting aside the vesting order. From the said order of the Hon'ble Division Bench, two appeals were filed, one appeal was filed by the State and the other one was filed by the present appellant/plaintiff. The said appeals were also dismissed by the Hon'ble Supreme Court.
After such dismissal of the appeals, on 28th July, 2003, the appellant/plaintiff filed a second suit for specific performance of the agreement for sale dated 13th March, 1968 in Alipore Court being T. S. No. 95 of 2003. On 28th November, 2003, the defendant No. 1 (Debabrata Sen) and defendant No. 3 (Sulekha Dey) filed an application for dismissal of the said T. S. No. 95 of 2003 under Order 7 Rule 11 of the Code of Civil Procedure.
Pursuant to an application filed under Clause 13 of the Letters Patent, the said suit was also transferred before this Court. After transfer of the said suit (T. S. No. 95 of 2003), it was renumbered as E.O.S No. 3 of 2006 in this High Court. An application being G.O. No. 3197 of 2006 was filed under Order 7 Rule 11 of the Civil Procedure Code by the respondent No. 4 for rejection of the plaint. On 19th June, 2008, the said suit was dismissed by the Hon'ble Interlocutory Judge.
It appears that the application which was filed by the defendant No. 4 for rejection of the plaint, was on the ground that the appellant filed the earlier suit for specific performance of the said agreement and after withdrawing the said suit without liberty to file afresh, the present suit is not maintainable. The other point which was urged that the suit is ex facie barred by the laws of limitation and further the conduct of the plaintiff would show that the plaintiff is disentitled to get any relief under the Specific Relief Act, 1963 from claiming specific performance.
It appears from the agreement dated 3rd March, 1968 that the plaintiff agreed to purchase the piece of land at Kasba from the defendants or their predecessors-in-interest. The plaintiff stated that out of the plot of 85 bighas and a bit, the proposed transferors agreed to carve out 78 bighas for transfer to the appellant/plaintiff at Rs. 2,800/- per bigha adding up to Rs. 2,18,400/-. According to the plaintiff, the proposed transferors were to execute the conveyance in favour of the plaintiff or its nominee "within six months upto the limit of 12 months" from the date of the agreement. The plaintiff also stated that it paid Rs. 15,000/- by way of initial consideration and further sums till 1974 totalling to Rs. 1,16,800/- and was always ready and willing to pay the balance amount to obtain absolute rights in respect of the said property. It has also been stated that the defendants prevented the plaintiff by obtaining the said land.
It appears that in the earlier suit being T. S. No. 127 of 1995 which was filed before the District Court at Alipore by the present appellant, the present appellant sought the following reliefs:
"(a) for passing a decree for Specific Performance of Contract dated 3.3.68 in favour of the plaintiff.
(b) for a direction upon the defendants to execute and register the deed of conveyance or conveyances in favour of the plaintiff of its members on taking the balance considering money failing which the plaintiff may be directed to deposit the balance consideration money in court and the learned court may be pleased to execute and register the deed of conveyance or conveyances in favour of the plaintiff.
(c) for temporary/ad interim injunction.
(d) for passing a decree for all costs, incidental charges and expenses to the suit.
(e) for such further or other relief or reliefs the plaintiff may otherwise be entitled to law and in equity."
It further appears that after filing of such suit within six weeks, the plaintiff filed an application for leave to withdraw it with liberty to sue afresh. At this stage, we have examined the said application for withdrawal of the said suit and it appears that the said application was filed under Order 23 Rule 1 (4) of the Code of Civil Procedure.
The only question arose before us, whether this suit is liable to be dismissed as not maintainable since the earlier suit had been withdrawn without leave to file afresh. Admittedly, there is no dispute that on December 4, 1995 the High Court has specifically made it clear that the order will not prevent any party from unconditionally withdrawal of any procedure which is sought to be transferred. (Emphasis supplied) The use of the word "unconditionally" is nothing but it would imply that if there is any withdrawal of the procedure that should be without any condition but if such withdrawal is attached with string, then such prayer could not be made before the lower Court. It was not open to the plaintiff to urge that any liberty to file afresh should be read in the order dated March, 4, 1997 passed by the Learned Court. The order dated December 4, 1995 of this Court is absolutely clear.
It further appears that the Hon'ble Interlocutory Court has specifically stated as follows :
"Bar under Order 23 Rule 1 (4) of the Code would have been undone if the Supreme Court had conferred a right on the plaintiff to launch fresh proceedings to canvass its agreement with the owners. Under Article 142 of the Constitution of India, the Supreme Court could have made such order if it thought it was necessary for doing complete justice. But the relevant sentence in the Supreme Court order of April 16, 2003 is not one that appears to have been made in exercise of the power available under Article
142. The liberty that was granted was for the parties to vindicate their rights, if any, "in the manner known to and in accordance with law.""
We also noticed Order 23 Rule 1 (4) of the Code, which reads as follows :
"1. Withdrawal of suit or abandonment of part of claim. - (1) ... (2) ....
(3) ....
(4) Where the plaintiff -
(a) abandons any suit of part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(5) ...."
After analyzing the order dated December 4, 1995, we must come to the conclusion that the Hon'ble First Court has correctly analyzed the text of the said order and His Lordship held as follows :
"If the order dated December 4, 1995 is seen as one permitting the plaintiff only to withdraw the suit without any liberty to file afresh, the bar of a fresh suit on the subject matter of the earlier suit as contained in sub-rule (4) of Order 23 Rule 1 of the Code would apply."
We have also considered the decisions cited before us by Mr. Jayanta Mitra, Learned Senior Counsel appearing on behalf of the appellants reported in AIR 1971 Madras 477 (T. W. Ranganathan -Vs.- T. K. Subramaniam and others); AIR 2006 Madras 156 (Rajasundari -Vs.- Gowri alias Avaduai Ammal & Ors.); AIR 1926 Patna 259 (Khudi Rai and others -Vs.- Lalo Rai and others); AIR (38) 1951 Madras 715 (Thadi Konda Veeraswami -Vs.- Thullum Peda Lakshmudu & others); AIR 1959 Rajasthan 53 (Naru -Vs.- Mt. Noji and others); AIR 2006 Calcutta 204 (Numazar Dorab Mehta & Ors. -Vs.- The Assam Company Ltd.); 2000 (2) CHN 84 (Union of India & Ors. -Vs.- Bhola Samanta & Ors.); AIR 1982 Calcutta 17 (Sukumar Banerjee -Vs.- Dilip Kumar Sarkar and others) and AIR 1918 Madras 126 (Keelangoti Narayana Tantri -Vs.- Nagappa and others) respectively.
After considering the said decisions and the submissions made by Mr. Hirak Mitra, Learned Senior Counsel for the respondent, we find that in the given facts the said decisions cannot be a help to Mr. Jayanta Mitra's client. We must admit that if the said order dated 4th December, 1995 was passed without the word 'unconditionally' we could not have any doubt in our mind to accept his contention. But in the given facts we have to hold that His Lordship correctly came to the conclusion.
Therefore, in our considered opinion, we find that the Hon'ble First Court has correctly decided the question and we do not find any irregularity or illegality in respect of the order so passed by His Lordship and, accordingly, we dismiss this appeal and affirm the order so passed by His Lordship.
For the reasons stated hereinabove, this appeal is dismissed. I agree.
(SURINDER SINGH NIJJAR, C. J.) (PINAKI CHANDRA GHOSE, J.)