Calcutta High CourtArjun Kr. Sarkar vs Smt. Lalika Rani Ghosh & Ors. on 20 April, 1999Equivalent citations: (1999)2CALLT495(HC)JUDGMENT

 

  D.B. Dutta, J.1. This is an application under section 115 Civil Procedure Code against an order passed on 17.9.91 in Misc. Appeal No. 134 of 1991 by learned Additional District Judge, fourth court, Alipore.2. The petitioner as a plaintiff filed a suit in the third court of Munslff at Alipore for partition claiming one anna share against Dhirendra Nath Ghosh, Ashutosh Ghosh and Alekjan Bibi as defendants. The said suit was initially numbered as Title Suit No. 75 of 1958 which was eventually renumberes as 84 of 1962 in the First Additional court of Munsiff, Alipore and subsequently renumbered as T.S 104 of 1989 in the Second Additional court of Munslff, Alipore. The Ghosh defendants contested the suit denying the plaintiffs right, title, interest and contending, inter alia, that the defendant Alekjan Bibi's Interest was acquired by them by means of ouster. A preliminary decree was passed on 16.9.64 declaring the plaintiff-petitioner's one anna share in the suit properties. Title Appeal 2515 of 1964 was preferred against that preliminary decree and it was dismissed. A second appeal being S.A No. 1150 of 1971 was preferred against the Judgment of dismissal of the first appeal and the suit was remanded for a decision on the question of ouster of Alekjan Bibi as pleaded by the Ghosh defendants No. 1 and 2. After remand, the suit was again decreed in preliminary form on 22.6.85. Against that decree no appeal was, however, preferred. The defendant No. 2, Asuthosh Ghosh died on 1.3.84, that is to say, before the passing of the preliminary decree on 22.6.85 and as the plaintiff petitioner was not aware of the death, which was also not reported to the plaintiff or the court, no steps could be taken by the plaintiff for substitution in place of the deceased defendant No. 1. In pursuance of the preliminary decree, partition commissioner was appointed who carried out measurement of the lands. At that stage, on 27.1.86. the defendant No. 1 filed an
application for recording abatement of the suit due to non-substitution within the time limit in place of the deceased defendant No. 2 and upon a contested hearing of that application, the trial court by its order dated 25.8.86 rejected that application holding, inter alia that the suit being a suit for partition could not abate due to non-substitution of the heirs of the deceased defendant. While rejecting the application the court gave the liberty to the plaintiff for bringing the heirs and legal representatives of the deceased defendant No. 2 on record. No appeal was preferred against the said order and in pursuance of this order, the plaintiff filed an application on 7.11.86 under order 1 Rule 10 read with Order 6 Rule 17 andsection 151CPC for impteading the heirs of the deceased defendant No. 2 and as the said application was not opposed by the defendant No. 1 the trial court allowed the application ex parte by its order dated 13.1..87 impleadlng the heirs of the deceased defendant No. 2 as defendants in the suit. Thereafter on 3.6.89, the defendants filed another application for setting aside the preliminary decree that was passed on 25.8.86 on the ground that it was a nullity having been passed against the defendant No. 2 who was already dead and also filed an application for staying of the work of the partition commissioner. On a contested hearing the court rejected this application by its order dated 3.4.90 holding, inter alia, that the defendants having unsuccessfully raised a similar question by their earlier application dated 27.1.86, is estopped from agitating the self-same matter over again. Against the said order dated 3.4.90 of the trial court rejecting the defendants' application for setting aside the preliminary decree dated 22.6.85, the defendants moved the District Judge in revision being C.R. No. 142 of 1990 which was subsequently withdrawn on 17.5.90 without any leave being taken. Finally, the defendants filed an independent suit being T.S. No. 261 of 1990 in the 6th court of Munsiff at Alipore for a declaration that the preliminary decree passed in the earlier suit was a nullity. The defendants moved an application for Injunction restraining the petitioner who was the defendant No. 1 in the subsequent suit from proceeding with the earlier suit. Upon a contested hearing of the matter, the learned Munslf rejected the application for Injunction by its order dated 17.2.97 principally on the ground that their similar prayer for setting aside that particular preliminary decree was rejected by order dated 3.4.90 passed in the earlier suit. Against this order of rejection of the application for injunction in the subsequent suit, the plaintiffs of the subsequent suit preferred Misc. Appeal No. 134 of 1997 and the lower appellate court by the Impugned order dated 17.9.98 allowed that appeal by setting aside not only the order under appeal but also the preliminary decree on a finding that it was a nullity without however going Into the question of legality or propriety of the order under appeal and without granting the temporary injunction prayed for. And hence the present revislonal application at the Instance of the plaintiff of the earlier suit who is defendant in the subsequent suit.3. It has been urged on behalf of the plaintiff-petitioner of the earlier suit that the learned Additional District Judge acted illegally and without Jurisdiction in setting aside the preliminary decree passed in the earlier suit in the Misc. Appeal which arose out of an Interlocutory order rejecting the application for injunction in the subsequent suit without at all considering the previous orders passed on 25.5.86, 13.1.87 and 8.4.90 in the earlier

suit as well as the fact that the revislonal application being C.R. No. 142 of 1990 preferred against the order dated 3.4.90 rejecting the application for setting aside the preliminary decree was unconditionally withdrawn and that the learned Additional District Judge should have held that the application for temporary Injunction in the subsequent suit was barred by the principles of res judicata.4. On behalf of the respondent opposite parties, the present revlsional application was opposed mainly on the ground that the preliminary decree in question having been passed long after the death of the defendant No. 2 in the earlier suit without any step having been taken within the prescribed time limit for bringing the legal heirs and representatives of the deceased defendant on record, the suit had abated and the preliminary decree having been passed against a deadman was a nullity and as such, there was no scope for taking any further step for passing of a final decree in terms of such a preliminary decree and as such, the learned lower appellate court has rightly allowed the appeal.5. When one of two or more defendants in a suit dies and the right to sue does not survive against the surviving defendant or defendants alone for further carriage of the suit, sub rule (1) of rule 4 ofOrder 22 of CPCrequires an application to be made before the court for causing the legal representative of the deceased defendant to be made a party. Such an application is required to be made within 90 days from the death of the deceased defendant and sub rule (3) provides that where within the time limited by law, no application is made under sub rule (1). the suit shall abate as against the deceased defendant. Whether the suit abates as against only the deceased defendant or he shall abate as a whole depends upon the nature and character of the suit. In a suit for partition, all the co-sharers are necessary parties and in the absence of one of them no effective decree can be passed. As such, if no application for bringing the legal representative of a deceased defendant is made within the prescribed time limit, there is every likelihood of a partition suit to abate as a whole. Sub rule (1) of rule 9 of Order 22 bars a fresh suit on the same cause of action where a suit abates. It is true that the right to partition is a continuing and recurring one and neither abatement nor dismissal of a suit for partition can bar a fresh suit for partition. Continuance or recurrence of a right to sue may not bar a fresh suit even after abatement or dismissal of a suit underOrder 22 CPCbut that may not necessarily mean that there is no abatement of a suit for partlUon by reason of non-substitution of the heirs and legal representatives of one of the deceased co-sharer defendants in a partition suit. But the fact remains that when the defendant No. 1 in the earlier suit specifically came forward before the trial court with an application for recording abatement of the suit on the ground of any non-substitution of the heirs and legal representatives of the deceased defendant No. 2 within the prescribed time limit, the trial court by its order dated 25.8.86 held that it did not abate and rejected the application and against the said finding or rejection by the court, the defendant-applicant did not at all move the higher court and on the other hand allowed the court to bring the heirs and legal representatives of the deceased defendant No. 2 as parties to the suit by order dated 13.1.87 under Order 1 rule 10CPClong after the alleged abatement of the suit. This order dated 13.1.87 has also been allowed to stand unchallenged. The further fact remains that the defendant even subsequently made an unsuccessfull attempt to have the preliminary decree set aside on the ground that it was a nullity having been passed against a dead man and the relevant order dated 3.4.90 of the trial court rejecting that application was challenged by the defendant in a civil revision No. 142 of 1990 undersection 115(a)CPC but the said revision was not at all pursued by the defendant and was finally unconditionally withdrawn. Under these circumstances, whether Institution of the subsequent suit by the defendants for the self same relief of having the preliminary decree declared a nullity would be maintainable being hit by the mischief of the principles of res judicata would be a question which will predominantly arise for the decision in the subsequent suit. The subsequent suit is yet to be tried and decided finally by the trial court. The trial court simply decided the interlocutary application for temporary injunction in the suit and in the Misc. Appeal the learned appellate court below was only concerned with the propriety and/or legality of the order of the trial court rejecting that application for temporary injunction. What the learned lower appellate court did in the Impugned order was adjudication of the point that would finally arise for a decision during the trial. By holding that the preliminary decree dated 22.6.85 was a nullity, the learned lower appellate court has virtually prejudged the mlrits of the subsequent suit and 'by setting aside that decree it has practically granted the very relief for which the suit was filed. I am afraid, such a course was not at all warranted by law. By adjudicating the question as to whether the preliminary decree was a nullity or not and by setting aside that preliminary decree in the Misc. Appeal, the scope of which was only limited to the question of justification or otherwise of the trial court in refusing to grant the temporary injunction prayed for in the suit, it is patently clear that the learned appellate court below has far exceeded its Jurisdiction. The impugned order is, therefore, grossly illegal and is hereby accordingly set aside.Before I conclude I deem it my duty to make it clear that in dealing with the present revisional application, I have only examined the question of jurisdlctlonal legality-propriety of the Impugned order of the lower appellate court and pronounced my decision thereon and that all the questions involved in the two suits are left open to be agitated by the parties and decided by the courts at the appropriate stages only in accordance with law being uninfluenced by the observations which I incidentally made in this order touching the merit, if any, of any such question.The revisional application is thus disposed of on contest but without any order as to costs.Urgent xerox certified copy of this Judgment, if applied for, be given expeditlously.6. Application disposed of