Nepal Chandra Saha vs Rebati Mohan Saha and Others

B.N. Sarma, J.—This is an appeal by the plaintiff whose suit was dismissed by the First Appellate Court, reversing the decree of the trial Court. The suit was one for declaration of the plaintiffs title to the land and houses mentioned in Schs. 1 and 2 to the plaint and for khas possession over the same on partition.

The plaintiff''s case in brief was that defendants 2 to 4 who are sons of one late Sajid Ali are the joint owners of the land described in Sch. I and the house described in para 1 of Sch. 2 to the plaint, the same falling to their share in an amicable partition amongst them and other co-sharers. The house described in para 2 of Sch. 2 was constructed by defendant No. 2 alone and it was his exclusive property. One Dipchand Ehura got a money decree in Money Suit No. 22 of 1952 in the Court of the Munsiff, Karimgani against defendant No. 2. In Money Execution Case No. 95 of 1953 arising out of that decree, the share of defendant No. 2 in the suit property was sold in auction and it was purchased by the plaintiff. This is how the plaintiff became the owner of the suit property, mentioned in Schs. 1 and 2 to the plaint. Defendants 2 to 4 sold another property to one Basanta Kumar Nag Choudhury but they remained in possession of the property as tenants under the purchaser. Thereafter, Basanta Kumar Nag Choudhury got a rent decree against defendants 2 to 4 for arrear of rent in respect of that property. In execution of that decree he purchased the two-thirds share of defendants 3 and 4 in the land of Sch. 1 and in the house of para 2 of Sch. 2. After his purchase, Basanta Kumar Nay Choudhury sold that property to defendant No. 1 Rebati Mohan Saha. The plaintiff and defendant No. 1 alone, thus, have become owners of the suit property.

The defendant No. 6 has been in occupation of the suit holding in collusion with defendants 2 to 5 without any semblance of right. Defendant No. 5 was once set up by defendants 2 to 4 to .file a false criminal case against the plaintiff in respect of the suit property but that case was dismissed. The plaintiff came to know afterwards from the written statement filed by defendant No. 6 that the latter, through one Nagendra Acharyya, predecessor of defendants 13 to 19 obtained an ex parte decree in Money Suit No. 123 of 1956 against the heirs of aforementioned Sajid All and in execution of that decree the defendant No. 6 purchased a share in the suit property in Money Execution Case No. 22 of 1957 in the Court of the Munsiff, Karimganj. According to the plaintiff, defendant No. 6, in collusion with Nagendra Acharyya obtained that decree by practising fraud on the Court. He accordingly, amended the plaint and added a prayer to set aside the decree in Money Suit No. 123 of 1956 and the proceedings in Money Execution Case No. 22 of 1957, as fraudulent and collusive. In these circumstances the plaintiff filed the suit for declaration of his title to one-third share in the suit land described in Sch. I as well as in the house described in para 1 of Sch. 2 and to the entire house described in para 2 of Sch. 2 of the plaint and also for khas possession over the same, on partition.

The defendant No. 1 filed a written statement supporting the case of the plaintiff. The suit was contested by defendants 6 and 12 who filed two separate written statements. The other defendants did not enter appearance at all.

Defendant No. 6 resisted the suit on various grounds both on law and facts. On facts, he denied that there was a partition amongst defendants 2 to 4 and their other co-sharers. According to him, Sajid Ali, who was the original owner of the property, died leaving three sons (defendants 2 to 4), 4 daughters (defendants 7 to 10) and his widow Sabura Bibi (defendant 11). It was averred by him that the decree in Money Suit No. 22 of 1952 obtained by Dipchand Bhura against defendant No. 2 was fraudulent and collusive and so also the purchase of the plaintiff in execution of the decree in that suit. He claims to be a tenant In respect of the suit property under the heirs of Sajid Ali and also claims to have purchased the one-eighth share in the property belonging to the defendant No. 11. One of the legal objections taken by this defendant was that the suit is not maintainable in the present form.

Defendant No. 12 also in his written statement claimed that he had purchased the two annas share of defendant No. 11 in the suit property in Money Execution Case No. 4 of 1960 and thus he has become a co-sharer in the suit property in respect of one-eighth share.

Upon the pleadings as many as 10 (ten) issues were framed including one as to whether the suit is maintainable in the present form, which was issue No. 1. On a consideration of the evidence adduced by the parties, both oral and documentary, the Munsiff, who tried the suit answered all the issues in favour of the plaintiff and accordingly he passed a preliminary decree in the suit granting all the reliefs prayed for, including partition.

Being aggrieved by the decree, answering defendant No. 6 filed an appeal before the Assistant District Judge, Cachar. In that appeal the learned Assistant District Judge reversed the decree of the trial court and dismissed the plaintiff''s suit holding that the Civil Court has no jurisdiction to try the suit in view of the provisions of Section 154(1)(e) read with Section 96 of the Assam Land and Revenue Regulation (hereinafter called the Regulation), without going into the merits of the appeal on other points. Hence the plaintiff has come up with the present Second Appeal.

In the Second Appeal the notices issued to respondent No. 7 Kadarunnessa Khatun and respondent No. 11 Sabura Khatun daughter and widow, respectively, of late Sajid Ali, were returned unserved with the peon''s report that they are dead. Thereafter, at the instance of the learned Counsel for the appellant, their names were struck off from the memo of appeal without bringing on record the names of their legal representatives. It may be mentioned here that both these deceased respondents were impleaded as pro forma defendants in the suit and they not having entered appearance in the suit, the suit was heard and decreed ex parte against them. In the First Appeal also, none of them appeared.

Now, in view of the fact that the legal representatives of the above-mentioned two deceased respondents 7 and 11 were not brought on record by the appellant, Mr. P. Choudhury, learned Counsel for the answering respondent No. 6 has taken a preliminary objection that the appeal has abated as a whole, as the right to sue does not survive against the surviving defendant alone, the suit being one for partition. It is submitted that according to the respondent No. 6 they are co-sharers in the suit property. He further submits that even on the showing of the plaintiff himself in the plaint there was only an amicable partition amongst the co-sharers. Such an amicable partition is no partition in the eye of law and cannot take away the interest of the other co-sharers for all the time; it holds good only till formal partition is effected by the Revenue Authority or by some registered instrument. It was also submitted by Mr. Choudhury that though the Court has got the power to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has failed to file any written statement or has failed to appeal and contest the suit at the hearing, as in the present case, such exemption can be granted only in the suit and not in the appeal as the provisions of Sub-rule (4) of Rule 1 of Order 22, Civil P.C. which provide for such exemption are applicable only to suits and not to appeals. In any case, he submitted, the power of exemption can be exercised before the abatement takes place and not after the suit or appeal has abated. In support of this contention Mr. Choudhury relied on the decisions in Sankari Prosad Singhdeo v. Kanailal Roy (1948) 52 CWN 599, Nani-gopal v. Panchanan (1955) 59 CWN and Lakshmi Charan Panda and Another Vs. Satyabadi Behera and Others, .

In (1948) 52 CWN 599 and (1955) 59 CWN 304 It was held that where no application has been made for substitution under Order 22, Rule 4 (1) of the Civil P.C. and no order for exemption has been made under the provisions of Sub-rule (4) of Rule 4 of Order 22 of the Civil Pi C. the suit shall abate and that the Court''s power of exemption under Rule 4 (4) of Order 22 can be exercised only before an abatement has taken place and cannot be exercised after an abatement has taken place. In deciding the above cases, the learned Judges were of the view that the words ''whenever it sees fit'' cannot be Interpreted to mean ''at any time before the suit has been disposed of.'' According to the learned Judges the sequence of events as contemplated in Order 22, Rule 4 leads to the inescapable position that where no application has been made for substitution under Sub-rule (1) and no order for exemption has been made under the provisions of Sub-rule (4) within the time limited the suit shall abate. On such abatement there is nothing before the court so far as the deceased defendant is concerned in which any order whether for exemption under Sub-rule (4) or another order can possibly be passed.

In Lakshmi Charan Panda and Another Vs. Satyabadi Behera and Others, , referring to the words ''whenever the Court sees fit'' It is said that in the context it must mean that when the Court sees fit within 90 days from the date of death and before abatement takes place. It is said that within the period of 90 days two courses" are open to the appellant...either to file an application for substitution or to file an application praying for invoking the Court''s power of exempting them from the necessity of substituting the legal representatives of the deceased. The Orissa High Court followed the judgment of the Division Bench of the Calcutta High Court in (1955) 59 CWN 304.

In Lakshmanan Chettiar and Another Vs. Chidambaram Chettiar and Others, and in Velappan Pillai Vs. Parappan Panickar and Others, the views expressed in the above cases were dissented from. In Velappan Pillai Vs. Parappan Panickar and Others, , all those decisions were considered and dissenting from the view expressed therein, it was held that-

The provisions of Order 22, Rule 4(4) could be availed of at any time before judgment. Sub-rules (3) and (4) of Rule 4 must be read together. Sub-rule (3) will not operate In cases where an order under Sub-rule (4) is made. Statutorily the automatic operation of Sub-rule (3) Is taken away when exemption is granted under Sub-rule (4). This is because Sub-rule (3) itself provides Sub-rule (4) as its exception and full effect has to be given to the exception.

Assigning reasons for taking such a view the Court observed as follows:

In my view this is to limit the force of the expressions ''except as hereinafter provided'' in Sub-rule (3) and the words ''whenever it sees fit'' in Sub-rule (4). The expression ''whenever'' properly means only ''yet whatever occasion''. But exactly interpreted ''when'' refers to a point of time and ''where'' to a place or state of things. A reference to any standard grammar of English words or English Dictionary would show, that whenever'' is an intensified form of ''when'', ordinarily meaning ''no matter when'', ''at any time when''. In Stroud''s Judicial Dictionary the meaning of the word ''whenever'' is brought out thus:

Where a clause in a lease provides for Forfeiture, ''if and whenever'' rent is in arrear, that means as often as the rent shall remain in arrear, at any moment of time, and the forfeiture is not waived by a distress which does not yield sufficient to satisfy the rent due....

But ''whenever it appears'' to the county council that a house or room for dancing, music, or such like, ''is so defective in its structure'' as to be in danger from fire (Section 11, Metropolic Management Act, 1878-41 and 42 Vict C 32) does not mean ''so often as'', but means that at ''whatever time it so appears''.

As said in Craies on Statute Law in approaching the question of interpreting words used in statutes it is necessary to keep in mind the presumption that words in a statute are strictly and correctly used. Unless we are compelled by the context we should take it that language used, has been used exactly. It may be said that the existence of a given set of circumstances requiring the exercise of judicial discretion is also is in time. But why limit the scope of the words ? If it was not intended to permit exemption at any time, these words ''whenever it sees fit'' in Sub-clause (4) could well have been omitted, the discretion being left with the court to exempt the plaintiff with the necessity of substitution according to the circumstances. The words ''may exempt'' themselves import the need for exercise of judicial discretion. The amendment of Order XXII by the addition of words to Sub-rule (3) and the insertion of the new Sub-rule (4) was pursuant to the recommendation of the Civil Justices Committee. The Civil Justices Committee had recommended that after the trial had commenced it should be open to the Court to absolve the plaintiff from the necessity to substitute the representative of the defendant who did not in his lifetime file a written statement, or who having done so did not appear to contest at the hearing. It was considered as device to avoid useless substitution of representatives on the death of a party. The Committee had also suggested that on appeal it should be made possible in a proper case to obtain an order dispensing with the need to substitute the heirs of respondents who took no part at the trial, as some of the unnecessary expenses and trouble might more safely be eliminated. These are rules of procedure suggested by experience and expediency and if the interpretation contended for the respondents is accepted the object may not be achieved. "It is suggested for the respondents that if the time limit for an application to bring on record the representatives of an ex parte respondent had expired the appellant if the circumstances warrant dispensing with service of the innumerable representatives of the deceased, must first have the abatement of the appeal set aside under Order XXII, Rule 9. But to have the abatement set aside notice will have to go to the legal representatives and it is meaningless that after notice had gone to them and they had appeared the appellant should seek exemption from substitution of the legal representatives. The provision is in respect of an ex parte defendant or respondent, who has taken no interest in the litigation and particularly when under the rules, in an appellate court notice even need not be sent to him, his death may not come to the knowledge of the appellant in time. In such cases the sub-rule will be a dead letter if the respondent''s contention is accepted.

In Lakshmi Charan Panda and Another Vs. Satyabadi Behera and Others, , it was held, inter alia, that the provisions of Order 22, Rule 4(4), Civil P.C. are not applicable to appeals with the following observation:

Though under Order 22, Rule 11, a suit means an appeal so far as may be, the words, ''suit'' used in Sub-rule (4) must necessarily mean in the context only suit and not appeal.

It is seen that no reason was assigned in the judgment for taking such a view. In taking a contrary view in Lakshmanan Chettiar and Another Vs. Chidambaram Chettiar and Others, , the learned Judge observed:

Rule 11 of Order 22 provides for the application of the order to appeals, so far as may be. Unless therefore there is something in the terms of Rule 4 (4) which precludes its application to appeals, there, can be no doubt that, equally with a number of other provisions of the Code which are in language adapted to suits, the intention is to apply a similar rule to both forms of proceeding. It is worth notice that a provision of somewhat analogous character, embodied in the proviso to Rule 14, Order 41, and enabling the appellate Court to dispense with the service of notice on respondents against whom the suit has proceeded ex parte was introduced into the Code at the same time as Rule 4(4), Order 22.

I am in respectful agreement with the view taken by the Madras High Court in Lakshmanan Chettiar and Another Vs. Chidambaram Chettiar and Others, and Velappan Pillai Vs. Parappan Panickar and Others, , that the provisions of Sub-rule (4) of Rule 4 of Order 22 are applicable to appeal as well as to suit and that the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after abatement has taken place.

It was then contended by Mr. Choudhury that even if the Court has power to grant such exemption as contemplated in Sub-rule (4) of Rule 4 of Order 22, in an appeal and after abatement, such power can be exercised only when an application in that behalf has been made by the plaintiff or the appellant, as the case may be, and not otherwise. As no application has been made in the present case in that behalf, Mr. Choudhury submits, there is no scope to grant any such exemption.

This contention is also without any force, in my opinion. In some of the provisions of the Civil P.C., it has been specifically provided that the Court will make an order thereunder only on an application made in that behalf. Reference may be made in this regard to the provisions of sub-rule (1) and Sub-rule (3) of Rule 4 of the same order. In Sub-rule (4) there is no such provision that the Court will make an order exempting the plaintiff from the necessity of substituting the legal representatives of the deceased defendant, on an application made in that behalf. The rule-making authority advisedly omitted to insert such a provision in Sub-rule (4). It is not permissible for the Court to read something in a rule which is not there. I am fortified in taking this view by the decision of the Madras High Court in Velappan Pillai Vs. Parappan Panickar and Others, . In that case there was no application from the appellant for such exemption. Nonetheless, on a memo filed by the appellant in the Court, the Court recorded an order noting that none need be impleaded as the legal representatives of the deceased defendant. In the appeal before the High Court it was contended on behalf of the appellant that the said order on the memo should be treated as an order under Order 22, Rule 4 (4). The Court accepted this contention observing as below:

It is said that the absence of a formal petition supported by an affidavit has not stood in the way of the court passing orders. True, courts are not debarred from passing orders in such matters without formal petition.

Be that as It may, the learned Counsel for the appellant has now orally prayed, on behalf of the appellant that an ofder may be made exempting the appellant from the necessity of bringing on records the legal representatives of deceased respondents 7 and 11.

In the instant case none of the deceased respondents filed any written statement in the trial court, None of them appeared at any stage of the suit and accordingly the suit was heard and decreed ex parte against them. They did not file any appeal before the First Appellate Court against such decree. In these circumstances I consider it to be a fit case to exempt the appellant from the necessity of bringing on record the legal representatives of the said deceased respondents under the provisions of Sub-rule (4) of Rule 4 of Order 22, Civil P.C. This order will statutorily take away the effect of Rule 3, that is in regard to abatement.

Having thus disposed of the prelmiinary objection taken on behalf of the respondent, let me now come to the merit of the appeal. As already pointed out, the learned Assistant District Judge allowed the appeal and dismissed the suit of the appellant only on the ground that the suit is barred under the provisions of Section 154(1)(e) of the Assam Land and Revenue Regulation saying that the suit was a pure and simple partition suit.

Mr. J.P. Bhattacharjee, learned Counsel appearing for the appellant has challenged this finding as erroneous both in law and facts.

The suit is not for partition alone. As already pointed out, the plaintiff has prayed for declaration of his title to one-third share in. the land in Sch.. I and also in the house mentioned in para. 1 of Sch. 2 and to the entire house in para. 2 of Sch. 2. In addition to such declaration, he has prayed for khas possession in such share, on partition,

As has been held by the Calcutta High Court in Mt. Rukeya Banu and Others Vs. Mt. Nazira Banu and Others, ,although u/s 154(1) read with Section 96 of the Assam Land and Revenue Regulation, partition, whether perfect or imperfect of revenue paying properties, must be made by the Revenue Authority, the jurisdiction of the Civil Court to determine the rights of the parties to the property in dispute as well as the shares to which they are entitled,) has not been taken away by the said sections. Again it has been held by the same Court in Rajendra Narain Chowdhury Vs. Satish Chandra Chowdhury, that the Civil Court has Juristietion to partition any specific land included in the revenue paying estate provided that a partition of the entire estate is not involved. In the instant case it is not clear either from the plaint or from the written statement as to whether the property sought to be partitioned represents the entire estate or only a part of an estate. Even if it is for partition of an entire estate the Court cannot throw away the entire suit for that reason. It is provided in Rule 18 of Order 20 of the Civil P. C that where the Court passes a decree for partition of property or for a separate possession of a share therein, then if and in so far as the decree relates to an estate which is assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the C.P.C. The learned Lower appellate Court did not consider the case from these aspects at all. He was not justified in dismissing the suit on the wrong assumption that it was a pure and simple partition suit. Even if the Civil Court is not competent to effect partition, the Court could declare the title of the plaintiff and the extent of his interest, if he has any, and then refer the matter to the Collector fort effecting partition, in accordance with the provisions of Section 54 and Rule 18 of Order 20 C P.C.

Mr. Choudhury, the learned Counsel for the respondents urged some other points before me which need not be decided in this appeal, in my opinion. If so advised, such contention may be raised before the Court below.

In the result, the decree appealed against is set aside and the First Appeal is remanded to the Court below for fresh disposal by deciding the other issues in the suit and in the light of the observations made hereinabove. The learned Assistant District Judge is directed to dispose of the appeal, expeditiously, within a period of not more than 4 months from the date of receipt of the records.

The appeal is allowed. The cost will abide the result in the First Appeal