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Kali Charan Shaw Vs. Kissen Lal Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 981 of 1958
Judge
Reported inAIR1959Cal17
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 63 - Order 39, Rule 1
AppellantKali Charan Shaw
RespondentKissen Lal Choudhury
Appellant AdvocateCharu Chandra Ganguly and ;Prafulla Kumar Chatterjee (Jr.), Advs.
Respondent AdvocateP.K. Roy and ;Anil Kumar Sen, Advs.
Cases ReferredJagiiwan Dhondiram v. Gopal Vinayak
Excerpt:
- .....at the auction sale. a prayer was made for a temporary injunction restraining the defendant kali charan shaw from proceeding with three small causes court suits which the latter had instituted on claims of rent for portions of the premises and from proceeding with the title appeal which was pending in the appellate court against a decree obtained by him against a tenant of another portion of the premises. for a proper understanding of the dispute, it is necessary to refer to the previous history of the litigation in connection with this premises. the money suit in execution of the decree in which kissen lal made his purchase was brought on 26-11-1953 and the property was attached before judgment. on the attachment being effected, the present petitioner kali charan shaw put in a.....
Judgment:

K.C. Das Gupta, J.

1. After the purchase of a property, at auction sale in execution of a decree in Money Suit No. 181 of 1953 by one Gangadin against one Mahabir, the Opposite Party Kissen Lal Choudhury instituted a suit for declaration of his title and confirmation of possession which, it was said, was obtained through court alter purchase at the auction sale. A prayer was made for a temporary injunction restraining the defendant Kali Charan Shaw from proceeding with three Small Causes Court suits which the latter had instituted on claims of rent for portions of the premises and from proceeding with the title appeal which was pending in the Appellate Court against a decree obtained by him against a tenant of another portion of the premises. For a proper understanding of the dispute, it is necessary to refer to the previous history of the litigation in connection with this premises. The money suit in execution of the decree in which Kissen Lal made his purchase was brought on 26-11-1953 and the property was attached before judgment. On the attachment being effected, the present petitioner Kali Charan Shaw put in a claim to the property, claiming to have purchased the property from the defendant by a kobala dated 19-3-1952. His prayer was that the property should be released from attachment. It appears that Kali Charan admitted that after he purchased the property he let out the premises to Mahabir on a monthly rent and Mahabir was in possession of the premises at the date of attachment. The learned Munsif being of opinion that on the claimant's own case the defendant had some interest and was in possession of the property as such, there was no reason why the attachment should be lifted. After stating that the attachment related to whatever rights Mahabir had in the property and it could not affect the rights, if any, which the plaintiff had in it, the learned Judge ordered that the Miscellaneous Case be dismissed. No suit, as contemplated under Order 21, Rule 63 of the Civil Procedure Code, was brought against this order. Kali Charan, however, brought an ejectment suit against Mahabir and that suit was decreed on 22-4-1955. It is said that on 9-7-1955, Kali Charan got khas possession in execution of the ejectment decree and has been realising rent from the tenants in occupation of different portions of the premises, that actually he has obtained a decree of ejectment against one tenant and has realised rents by suit or amicably from others and had instituted three other suits 'for rent, S. C. C. Suits Nos. 2409, 1410, 2411 of 1957, which were pending. As already stated, Gangadin's money suit having been decreed, Mahabir's property in the promises was put to auction in execution thereof and the present opposite party Kissen Lal purchased the same. It is his case that after the purchase he obtained possession through court.

2. The Trial Court was of opinion that the plaintiff's auction purchase took place on 17-4-1957 at a time when the judgment-debtor Mahabir had no existing right or title in the existing suit property. So it was prima facie clear that the plaintiff had not acquired any right, title or interest in the suit property on the basis of his auction purchase. He also held on consideration of the admitted facts that the defendant Kali Charan had filed as many as three S. C. C., suits to collect rents from his tenants and had got one ejectment decree it against one of the tenants of the suit property on contest and the matter was pending in appeal and that

'all these admitted facts clearly and very strongly go in support of the defendant's case to the effect that he has been in actual possession of the suit property, on collection of rent from the tenants.'

'On the other hand,'

the learned Trial Court held,

'there is no convincing evidence of any overt act on the part of the plaintiff in the collection of rent from the tenants of the suit property.' Being of opinion further that if the defendant was now restrained and if ultimately it was found that he was in actual possession of the suit property, it would amount to judicial dispossession of the defendant from the suit property, he was of opinion that this was not a fit and proper case in which the plaintiffs prayer for injunction should be allowed. Accordingly, he rejected the prayer for injunction.

3. On appeal, the learned Additional District Judge of 24 Parganas was of opinion that inasmuch as the defendant had not brought a suit as contemplated by Order 21, Rule 63 of the Civil Procedure Code against the order in the claim case he was precluded from pleading that he had right to the suit property by virtue of his purchase in 1952. The learned Judge was of opinion that in view of this the learned Munsiff was bound to reject the defendant's plea of purchase and should have allowed plaintiff's prayer for restraining the defendant from proceeding with these S. C. C. suits and the Title Appeal.

4. On behalf of the petitioner, it is pointed out that in disposing of the claim case, the learned Munsiff had taken care to mention that the attachment related to whatever right the defendant had in the property and it could not affect the rights, if any, which the plaintiff had in it. It is contended that in view of this the failure to bring a suit under Order 21, Rule 63 of the Civil Procedure Code cannot stand in the way of Kali Charan pressing his claim on the basis of purchase.

5. On behalf of the opposite party, Mr, Roy has tried to pursuade us that the order rejecting the claim having been made against Kali Charan, the order of rejection is conclusive: and as Kali Charan's claim was on the basis of his purchase the order of rejection being conclusive against him in the absence of a suit to establish that right, the Court of Appeal is right in thinking that Kali Charan is precluded from putting forward his claim on the basis of purchase. Mr. Roy has argued that what is conclusive is the order of rejection and it will be improper to look into the reasons for the rejection, as the conchisiveness attaches not to the reasons for the order but to the order itself. He has, in this connection, referred us to n decision of the Bombay High Court in Jagiiwan Dhondiram v. Gopal Vinayak, : AIR1955Bom397 (A) where Cajendragadkar and Shah, JJ. in dealing with a contention that the provisions of Order 21, Rule 63 could not be invoked in a case where the order of rejection was passed solely on the ground that the application made by the claimant was incompetent. Gajendragadkar, J. observed :

'It is not the reason given by the learned Judge in passing the final order, nor even the findings recorded by him in the said enquiry that become conclusive. It is the final order either allowing or dismissing the applications that becomes conclusive.'

He went on to say :

'This order has become conclusive, and the inevitable consquenee of this position is that defendant No. 6 cannot raise any plea which will affect the said order.'

With the view expressed in this judgment I am in respectful agreement. I do not think, however, that this decision is any authority for the proposition that it is not open to a court to look at the order itself to see what has been rejected. There is no justification, in my opinion, for the court looking only at the fact merely that the order (claim?) has been rejected and turning a blind eye to anything else that has been said in the matter. It would be hypertechnical, in my opinion, to say that as the order rejecting the claim is conclusive, all that we can see is that the claim has been rejected and nothing more. It is worth noticing that Order 21, Rule 63 itself speaks of an order being made against a party. 1 think it proper that in order to understand what order has been made against a party, the court should not look only at the words that the 'Miscellaneous Case has been dismissed,' but should take into account whatever else may have been said to indicate what is the nature of the order in so far as it is against the party. In the case before the Bombay High Court, the objection had been rejected on the ground that it was not competent. There was, therefore, in that case, no occasion to see further what the nature of the order was. The application as a whole had been rejected. In the case before us, however, the learned Judge after considering the evidence said 'this attachment relates to whatever rights the defendant has in the property and it cannot, affect the rights, if any, which the plaintiff has in it,' and then concluded by saying 'In view of the matter, I am of the opinion that the Misc. Case must be dismissed.' If we look only at the portion 'the miscellaneous case must be dismissed' and then look, as asked by Mr. Roy, into the claim made by Kali Charan, it would no doubt appear that his whole claim had been dismissed. In my judgment however, it will be wrong to look only at this concluding portion of the order, 'Misc. Case must 'be dismissed,' but for understanding what the order is against the petitioner, we should take into account also what had gone before, namely, that this attachment related to whatever rights the defendant had in the property and it could not affect whatever rights the 'plaintiff' had in it. Taking this portion into account, I am of opinion, that the order against the claimant was in two parts and that while it rejected his player that the property be released from attachment, in one part it further made it clear in its other part that the attachment that was not being lifted related to whatever rights Mahabir had in the property and would not affect the rights, if any, which the objector had in it.

6. I have, therefore, come to the conclusion that the learned Judge is wrong in thinking that because Kali Charan had not brought the suit contemplated by Order 21, Rule 63 of the Civil Procedure Code against the order made in the claim case, he is precluded from putting forward his claim on the ground of purchase.

7. It appears that once having come to the conclusion that it was not open to the Trial Court to consider the defendant's plea of purchase, the learned Judge did not find it necessary to consider whether the learned Munsiff was right in his view that the defendant Kali Charan was in actual possession and that 'there is no convincing evidence of any overt act on the part of the plaintiff in the collection of rent from the tenants of the suit property.' As far as I can find, the case, that this petitioner brought a suit for ejectment against Mahabir that was decreed and obtained possession of the property in execution of that decree of ejectment, does not appear to be disputed. The Trial Court has referred to the writ of delivery of possession issued in favour of Kali Charan in Title Execution Case No. 123 of 1955. If, as it prima facie appears, the plaintiff's auction purchase took place long after Muhabir's tenancy right in the property had ceased, it is difficult to see what the plaintiff did acquire by the purchase. It is not proper and necessary, however, to come to a definite finding at this stage on the question whether the plaintiff had acquired any right and, if so, what, by the purchase. The facts, however, that Kali Charan had obtained a decree of ejectment against Mahabir, obtained possession of the premises through court and was active in the matter of collection of rents, justify, in my opinion, the view taken by the Trial Court that it would be improper to interfere with Kali Charan's proceeding with the suits or the title appeal. In not considering these facts, the learned Additional District Judge has, in my opinion, acted irregularly in the exercise of jurisdiction. The granting or refusal of an order of injunction is in the discretion of the Trial Court and when the Trial Court has in the exercise of discretion decided to grant or refuse the prayer, it is certainly the right and duty of the Court of Appeal to set aside its order and make its own order and exercise its own discretion, when it is satisfied that there was no exercise of judicial discretion by the Trial Court or that the ground or the basis of which the discretion has been exercised was wrong. The learned Judge, who heard the appeal, being of opinion that it is not open to the Trial Court to take notice of the plea of purchase, would be entitled to substitute his own discretion in the matter for the discretion of the Trial Court. It was still necessary however, for him, to take into consideration other circumstances, namely, the question of possession before he made his own order. As I have mentioned earlier, the learned Judge did not think it necessary to consider the question of possession.

8. For the reasons I have mentioned before, I am of opinion, that the learned Judge was wrong in his view that it was not open to the Trial Court to take notice of the defendant's plea of purchase. In my view, the Trial Court was right in taking this plea into account and also in taking note of the decree that had been obtained by Kali Charan and the acts of possession of the property exercised by Kali Charan.

9. I have come to the conclusion that the learned Trial Court was right in refusing the order of injunction and the order passed by the Court of Appeal was a result of irregular exercise of jurisdiction. I would, therefore, make this Rule absolute, set aside the order passed by the Court of Appeal below and restore the order of the Trial Court. The petitioner will get costs of this hearing. The hearing fee is assessed at three gold mohurs.

Debabrata Mookerjee, J.

10. I agree.


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