Nani Gopal Nanda vs Badal Kumar Giri

Sudhanshu Sekhar Ganguly, J.—The facts leading to this revisional application may be summarised as follows:

Krishnahari Nanda, the grandfather of the Plaintiff-Petitioner executed a Deed of Gift in his favour in respect of 9 bighas of land on February 17, 1967. Subsequently, on February I, 1969, Krishnahari filed Title Suit No. 29 of 1969 in the Munsif''s First Court at Contai for setting aside, this Deed of Gift. This suit was dismissed for default on May 16, 1973, but before that on August 12, 1970, Krishnahari executed two Deeds, in favour of the Defendant-Respondent No. 1 in respect of 92 dec. out of the lands gifted to the Petitioner on the basis of an allegedly antedated bainanama dated December 15, 1966. The Petitioner filed Title Suit No. 267 of 1973 for declaration of title and permanent injunction against the Respondent No. 1 and his four brothers, who were the Defendants Nos. 2 to 5. Of the Defendants only the Defendant No. 1 filed written statement and contested the suit. The Respondent No. 1 claimed that he alone had title to the disputed land and that his brothers had no interest therein. Title Suit No. 267 of 1973 was decreed on November 26, 1979. The Respondent No. 1 filed T.A. No. 7 of 1980. Thereafter on March 25, 1980 the Respondent no. I filed an application under Order 1 Rule 10 staling that two of his brothers Defendants, namely, Dhananjoy and Bholanath (the Defendants Respondents Nos. 4 and 2) had (sic) on October 19, 1977 and July 18, 1979, respectively. This application under Order 1 Rule 10 of the CPC was rejected on April 15, 1980. Thereafter on April 28, 1980, the Respondent filed an application requiring the Court to pass an order that the suit had abated wholly. This application having been rejected on June 14, 1980, the Respondent obtained C.R. No. 2370 of 1980 and this Court remitted the case back to the District Judge, Midnapur, with directions to set aside (i) the decree in the Petitioner''s Title Suit No. 267 of 1973 and (ii) to direct the learned Munsif to set aside the abatements (presumably on an application from the side of the Petitioner) on his satisfaction that this Was permissible under the law. In pursuance with this direction the learned District Judge, Midnapur, set aside the judgment and decree passed in T.S. No. 267 of 1973 and sent the suit back lo the Court of the learned Munsif for doing the needful. Before the learned Munsif the Petitioner Tiled an application for setting aside the abatements and substituting the heirs and legal representatives in place of the deceased Defendants along with an application u/s 5 of the Limitation Act for condonation of delay. His case was that he lived elsewhere and he came to know about the death of the said Defendant only when the Respondent filed his application under Order 1 Rule 10 of the CPC before the Appellate Court. The Respondent No. 1 filed petitions challenging the contentions of the Petitioner on the plea that the Petitioner had been aware of tire death of the two Defendants all throughout. Both parties also adduced evidence before the learned Munsif. On a consideration of the circumstances of the case and the materials on record the learned Munsif by his order dated June 11, 1984 allowed the Petitioner''s application for setting aside the abatements. Hence, this revisional application for setting aside the order of the learned Munsif and to pass other appropriate orders as considered fit. Subsequently on June 27, 1984 the learned Munsif passed an order asserting that the suit stood abated. An application u/s 5 of the Limitation Act has also been filed for condonation of delay in filing the application for setting aside the order passed on June 27, 1984.

It is urged from the side of the Respondent No. 1 that both the order dated June 11, 1984 and June 27, 1984, are appealable and that as such as they cannot be set aside in revision. ''

The order dated June 27, 1984, runs in the following way:

145 : 27.6.84. After disposal of J. Misc. Case No. 27 of 1982, the record is put up today. In view of the order passed on 11.6.84 in Judl. Misc. Case the suit stands abated.

This order does not decide any question of fact or law and nor has it any operative effect. The abatement took place on expiry of the statutory period in view of the provisions, of the law, viz., Order XXII, Rule 4(3), CPC and not because of the order passed by the learned Munsif on June 27, 1984. Neither the order passed on June 11, 1984, nor the order passed on June 27, 1984, had anything to do with the process. The former refused to set aside the abatement which had taken place long ago and the latter merely stated what was the consequential effect of the abatements. The order passed on June 27, 1984, was really, therefore, of no consequence whatsoever.

The order dated June 27, 1984, recorded that ''the suit stands abated''. Did the learned Munsif mean that the suit stood abated as a whole against all the Defendants dead as well as alive or did he mean that the suit stood abated so far as the two deceased Defendants were concerned? Obviously, under Order XXII Rule 4(3) of the CPC the suit could abate only as against the deceased Defendants and not as against the other Defendants also who were alive. Had the learned Munsif been of the view that the right to sue did not survive against the surviving Defendants, he ought to have recorded that and dismissed the suit : Haji Munna Mia and Co. Pvt. Ltd. Vs. Union of India (UOI), The learned Munsif however did not record that the a suit was not maintainable against the surviving Defendants and nor did he record an order of dismissal of the entire suit on that account. Since the order dated June 27, 1984, was passed consequential to the order passed on June 11, 1984, it is to be presumed, therefore, that the latter recorded the abatement of the suit only as against the deceased Defendants Nos. 2 and 4 only.

The learned Advocate for the Respondent No. 1 urges that the Petitioner''s right to sue could not survive as against the surviving Defendants. The impugned deed in this suit stood in the name of the Respondent No. 1 alone. All that the Petitioner had to say against the other Defendants was that they were trying to disturb with his possession over the disputed land. The Respondent No. 1 alone filed written statement and contested the suit and his case was that he alone had purchased the disputed property and that the other Defendants had no interest whatsoever therein and that they were unnecessary, parties to the suit. The other Defendant did neither file written statement nor contest the suit. Obviously, they accepted and admitted the position that they had no interest whatsoever in the disputed land and did not mind if the suit was decreed against them. When they died the Petitioner''s right to sue them also died since nobody could pass on to his heirs and legal representatives his propensity of disturbing with the possession of others. The right to sue died as against the deceased Defendants Nos. 2 and 4, but that do not affect the Petitioner''s right to sue the surviving Defendants in respect of the entire disputed property. It cannot very well be, therefore, that with the abatement of the suit as against the Defendants 2 and 4, the Petitioner''s right to sue did not survive as against the surviving Defendants.

The learned Advocate for the Respondent urges that the order dated June 27, 1984, was in the nature of a decree and that hence it was appealable. In support of his contentions he cites two decisions. In Naimuddin Biswas and Others Vs. Maniruddin Lashkar and Others, it was observed that an order of abatement by virtue of the death of the party was virtually a decree as it disposed of the Plaintiff''s claim completely as if the suit had been dismissed. We have already seen that in the peculiar facts and circumstances of the case the abatement of the suit as against the deceased Defendants will not affect the Petitioner''s right to sue the surviving Defendants. The suit as a whole has not abated. In that view of the matter, the decision mentioned above has mo application to the facts of this case. Next case cited is Sabitribai Debi Vs. Jugal Kishore Das and Others, where it is laid down that an appeal abated not only with regard to the Respondent who was dead but with regard to all the Respondents is appealable. We have already seen that the impugned order in this case docs not say that the suit abated as against all the Defendants. This decision also, therefore, has no application to the peculiar facts of this case.

The learned Advocate for the Respondent urges next that the suit actually abated as against all the Defendants. He points out that the Petitioner prayed for a declaration of title and permanent injunction and in the alternative for recovery of possession against all the Defendants to the suit including those who died after the filing of the suit.

He cites first Kalinarayan v. Haren Chandra 62 I.C. 714. This was a suit for damages against several joint wrong-doers and that is why it was observed that the representative of the deceased wrong-doers should have been made party to suit. In this case the Defendant did not stand in the position of joint wrong-doers and no damages were claimed jointly against them.

The learned Advocate also cites Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others, In this decision the Supreme Court held that there were three tests to determine as to whether an abatement of the right to sue survived and the right to continue with the appeal remained after abatement had set in on the death of one or more Respondents. The first test was to see as to whether the success in the appeal would lead to the Court''s passing a decree which would be contradictory to the decree which had become final with-respect to the same subject-matter between the Appellant and the deceased Respondent. The second lest is to sec as to whether the Appellant could have brought the surviving Respondents. The third lest is to see as to whether if the appeal is allowed it would be ineffective, that is to say, it could not be successfully executed. In the present case the decree which was passed has already been set aside by the learned District Judge as per the direction of this Court. The suit may be taken to have been dismissed against the deceased Respondents but for reasons already discussed above that cannot affect the Petitioner''s right to sue the surviving Defendants. There is no chance, therefore, of any contradiction if the Petitioner succeeds in the suit as against the surviving Defendants. It may also be said hypothetically that even to-day the Petitioner could file a suit against the surviving Defendants, for the self-same relief. It can also be said that the decree would be executable against the surviving Defendants 10 make it possible for the Petitioner to get his desired relief. None of the three tests, therefore, applies to the facts and circumstances of the present case and the situation arises solely out of the fact that the deceased Defendants were unnecessary parties for all practical purposes.

The third decision referred to by the learned Advocate in Babu Sukhram Singh Vs. Ram Dular Singh and Others, In this case, a joint claim was made against all the Defendants. The appellate Court decreed the suit in part against all the Defendants. Before the Supreme Court relief asked for was against all the Defendants. No separate claim was made as against the Defendants. In such circumstances, it was held that the appeal had abated as against all the Respondents. The facts in this case are very much different since the deceased Defendants did not claim any title, or possession in the disputed property and there is no decree passed in the original suit at present.

On a consideration of all the circumstances we stick to our decision arrived at above to the effect that with the abatement of the suit as regards the two deceased Defendants the suit did not abate as a whole as regards the surviving Defendants also.

The Petitioner has filed an application u/s 5 of the Limitation Act for condonation of the delay in making the present petition for setting aside this order passed on June 27, 1984. It appears that this order was passed without notice to the parties to the suit and neither party knew about it. The parties became aware of this order only during the hearing of this revision matter. There was ample reason, therefore, why the Petitioner could not move against this order earlier. That, however is besides the point since we do not propose to set aside this order. We have already seen that this order merely stated that the suit stood abated as against the deceased Defendants Nos. 2 and 4. Such an order need not be set aside unless the abatements are set aside.

Next comes the order passed by the learned Munsif on June 11, 1984. By this order the learned Munsif refused to set aside the abatement of the suit as against the deceased Defendants Nos. 2 and 4. 116 learned Advocate for the Respondents points out that such an order is appealable under Order XLIII Rule 1(k) of the CPC and that the appeal lies before the District Court. He urges next that even if it be held that revision lies in such a case the impugned order cannot be touched since the learned Munsif had jurisdiction to pass the order.

Considering the circumstances the view of the learned Advocate for the Respondent must be upheld. There cannot be any doubt that Order XLIII Rule 1(k) applies to the facts of this case and that the Petitioner ought to have filed an appeal against this order before the learned District Judge.

The learned Advocate for the Petitioner urges that there are extraordinary cases where the High Court can interfere in revision u/s 115 of the CPC where a decree has been passed by a subordinate Court, He cites Maganlal Chhotabhai Desai Vs. Chandrakant Motilal, where such a view has been expressed. It is laid down there, however, that the High Court can exercise such a power where the Subordinate Court acts illegally and with material irregularity. It is not the case for the Petitioner that the learned Munsif acted illegally and with material irregularity in this case. This decision, therefore, does not apply.

The learned Advocate also cites P. Ramaswamy Vs. Dhandayuthapani Finance, Sankari, wherein it is laid down that the fact that appeal against the impugned order lies to another subordinate Court docs not oust jurisdiction of High Court to entertain revision. Section 115(2) of the CPC runs in the following way:

The High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Since in this case the appeal lays to the Court of the District Judge, this Court cannot entertain the present application for revision.

In view of what has been stated above the present Rule cannot be made absolute, hi that view of the matter it is hereby ordered that the Rule is hereby discharged. Be it clearly understood whereby that the order passed by the learned Munsif on June 27, 1984, merely staled that the suit had abated as against the deceased Defendants Nos. 2 and 4. The suit may and shall continue in the Court of the learned Munsif against the surviving Defendants. The learned Munsif is hereby directed to dispose of this suit as early as possible and in any case within a period of 3 months from the date of receipt of the records at this end. If necessary, the parties may adduce fresh evidence on the points in issue if considered necessary with the leave of the learned Munsif. The learned Munsif will dispose of the suit on the evidence on record and fresh evidence if adduced before him. Send the case records back to the learned Munsif at once for disposal of the suit in accordance with the directions of this Court.