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Bhuramull Maskara and anr. Vs. Ram Kumar Maskara and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCiv. Suit No. 3171 of 1950
Judge
Reported inAIR1951Cal105
AppellantBhuramull Maskara and anr.
RespondentRam Kumar Maskara and ors.
Appellant AdvocateS. Chatterjee, Adv.
Respondent AdvocateH.N. Sanyal and ;A.K. Sen, Advs.
DispositionApplication allowed
Cases ReferredJagannath Tandon v. Dharamshi Liladhar Vora
Excerpt:
- das gupta, j.1. this is an appln. by the deft. ram kumar maskara for an order that the leave granted under cl. xii of the charter prior to the institution of the suit be revoked, and alternatively, that the time to file the written statement be extended. the main contention of the learned counsel appearing on behalf of the appct. is that the leave granted under cl. xii of the charter should be revoked.2. this suit which was instituted on 5-8-1950 is a suit for a declaration of the shares of the parties in the joint properties and for partition and for accounts. there are two pltfs. in this suit, one is bhuramull maskara and the other is hiralal maskara. there are four defts. deft. 1 being ram-kumar maskara, deft. 2 being jawharlal maskara, deft. 3 being motilal maskara and deft. 4 being.....
Judgment:

Das Gupta, J.

1. This is an appln. by the deft. Ram Kumar Maskara for an order that the leave granted under cl. XII of the Charter prior to the institution of the suit be revoked, and alternatively, that the time to file the written statement be extended. The main contention of the learned counsel appearing on behalf of the appct. is that the leave granted under cl. XII of the Charter should be revoked.

2. This suit which was instituted on 5-8-1950 is a suit for a declaration of the shares of the parties in the joint properties and for partition and for accounts. There are two pltfs. in this suit, one is Bhuramull Maskara and the other is Hiralal Maskara. There are four defts. deft. 1 being Ram-kumar Maskara, deft. 2 being Jawharlal Maskara, deft. 3 being Motilal Maskara and deft. 4 being Sm. Jari Devi. Of the four defts., deft. 1 Ram Kumar Maskara and deft. 4 Sm. Jari Devi are alleged in the said cause title to be residing at Nalhati outside the jurisdiction of this Ct. In para. 3 of the plaint it is alleged that the family of the Maskara owns considerable properties both movable and immovable situate within as well as outside the jurisdiction of this Ct. and the particulars of the said properties including the businesses carried under various names are given in a schedule filed with the plaint and marked with the letter 'B'. In Sch. 'B' the first item of the properties mentioned is 'Jhutharam Ramrikhdas at premises No. 173, Harrison Road, Calcutta and Nalhatty.' The second item of the properties mentioned in the said schedule is : 'Members of the following : (a) Calcutta Wheat and Seeds Assocn; (b) Calcutta Bullion Assocn.' The third item is a Rice Mill at Nalhati. The fourth item is 'Maskara Salt Supplies.' The fifth item is 'Sree Swastika Rice Mill.' Under the sixth item, thirty five properties have been mentioned all within the district of Birbhum. The seventh item contains four properties in Bihar and the eighth item contains five properties in the district of Jaipur in Rajasthan. This exhausts the list of properties mentioned in Sch. 'B' to the plaint. The contention of the petnr. before me is that there is no property within the jurisdiction of this Ct. except item No. 1 in Annexure 'B'. It is further contended that Ram Rikhdas Maskara, the father of the parties other than the deft. 4, used to carry on business at several places, to writ : at Nalhati, Howrah. After the death of the said Ram Rikhdas, the petnr. along with Hiralal Maskara, Joharlal Maskara used to carry on the said business. They used to have a gadi at 173, Harrison Road since 1942 The said gadi at 173, Harrison Road was only a branch office. The said business was carried on at the said premises No. 173 Harrison Road, Calcutta, upto 1947 when the said business was totally stopped. It is further alleged by the petnr. that the said branch gadi occupied only half of a room at the said premises No. 173, Harrison Road for which a rent of Rs. 22 8 0 per month used to be paid to the landlord and none of the parties to this suit are at present residing there. It is further alleged by the petnr. that the parties to this suit have got no immovable property at all within the jurisdiction of this Ct. The petnr's case further is that most of the joint properties are situated at Nalhati, the head office of the business which was carried on by the petnr. Hiralal and Joharlal was at Nalhati, all the books of account are at present lying at Nalhati with Jawharlal as will appear from the letter of Jawharlal dated 22-9-1949, all the witnesses to be adduced in this case are residents of Nalhati, the mother who is an old lady of 70 years resides at Nalhati and it would be very difficult for her to come over to Calcutta to conduct this case. In the circumstances, the petnr's contention is that the balance of convenience lies in favour of this suit being tried at Birbhum and the suit can conveniently be tried there at a very low cost. It has also been urged, on behalf of the petnr. that the suit is mala fide and a harassing suit.

3. The principles on which leave already granted under Clause 12 of the Charter can be revoked have been consd. in a number of decisions of this Ct. In the case of Madanlal Jalan v. Madanlal A. I. R. (36) 1949 Cal. 495, Das J. inter alia laid down the following tests:

(a) if the deft shows clearly that no part of the cause of action arose within the jurisdiction leave should be revoked as a matter of course;

(b) if only a part of the cause of action arose within the jurisdiction then it is a question of discretion for the Ct. to give or refuse leave or where leave has already been granted to revoke or maintain the leave;

(c) in giving or refusing leave or maintaining or revoking leave the Ct. will ordinarily take into consideration the balance of convenience and if the balance is definitely in favour of the deft, apply the doctrine of forum convenience.

Applying these tests to the facts of this particular case and on a full consideration of all the materials placed before me I have come to the conclusion that leave under Clause 12 which has been granted should be revoked.

4. The first consideration which weighed with me is that it does not appear from the plaint as framed in this suit that any immovable property as mentioned therein is within the jurisdiction of this Ct. It was contended before me by learned counsel for the respondents that item No. 1 is the property which is within the jurisdiction of this Ct. But what is the property mentioned in Item No. 1. The said item as I have already indicated reads as follows: 'Jutharam Ramrikhdas at premises No. 173, Harrison Road, Calcutta, and Nalhati.' It is the common case of both parties that Jutharam Ramrikhdas is the name of the business and it is mentioned in sch. 'B' that it is carried on at premises No. 173, Harrison Road, Calcutta, and Nalhati. Therefore, the property mentioned in item No. 1 is not an immovable property but the business which is being carried on at No 173, Harrison Road Calcutta, and at Nalhati. If that is so, then on the state of the pleadings before me, it cannot be said that any item of immovable property in this suit is within the jurisdiction of this Ct. The resps. in their affidavit in opposition have, however, tried to maintain that item Nos. 2 (a) and 2 (b) and item No. 5 are within the jurisdiction of this Ct. Item Nos. 2 (a) and 2 (b) are membership in the Calcutta Wheat and Seeds Assocn. and membership in The Calcutta Bullion Assocn. respectively: Item No. 6 is 'Sree Swastika Rice Mill'. Thus the said items of properties even on the pltfs. own case cannot be said to be immovable properties situate within the jurisdiction of this Co. But the matter does not rest here and from the facts and circumstances to which I shall just now refer, it is quite clear that these resps. have made reckless statements in their affidavits before me. The petnr. in his affidavit-in-reply has denied that the properties mentioned in item Nos. 2 (a), 2 (b) and 6 are properties lying within the jurisdiction of this Ct. With regard to item No. 2 (a) the petnr. stated that Ramrikhdas Mankara, father of the parties other than deft. 4 used to carry on business in co-partnership with Hardatrai Chamaria and Durgaprasad Chamaria in seeds, that the said co-partnership was a member of the Calcutta Wheat and Seeds Aasocn., the said membership stood in the name of Ramrikhdas Maskara, Ramrikhdas retired from the said business in 1936 and he did not do any business after that and the said name is merely retained by the management of the said Aasocn. out of courtesy. With regard to item No. 2 (b) the petnr. in his affidavit-in-reply alleged that Bhurarnull Maskara separated from the joint family during the lifetime of Ramrikh-das Maskara and started a business of his own and as such he became a member of the Bullion Assocn. in the name of his son Jugalkishore Maskara. The said bullion business, the petnr. alleged, belongs to Bhuramull and his son and it has nothing to do with the joint family and the said business has also been stopped long ago. It is further alleged by the petnr. that Bhuramull separated from the joint family during the lifetime of the father as will appear from the copies of the written statement and evidence given by him in suit No. 185 of 1936 Dwarkadas and Co, v. Bhuramull Maskara and ors. Copies of the said written statement and of the depositions given by the said Bhuramull Maskara in suit No. 185 of 1936 have been produced before me and it appears that in the written statement filed by the said Bhuramull Maskara it is alleged that the members of the said firm of Jugalkishore Maskara, which is admitted before me to be the firm dealing in bullion, are only the said Bhuramull Maskara and Jugalkishore Maskara. In his deposition the said Bhuramull Maskara stated that his father Ramrikhdas Maskara had no interest whatsoever in the firm of Jugalkishore Maskara and he further stated that none of his brothers are interested in the said firm. But in the affidavit-in-opposition Bhuramull Maskara and his brother Hiralal have solemnly affirmed that the business mentioned in item No. 2 (b) is the business carried on by the parties as member of the Calcutta Bullion Assocn. One of the two statements, the one made in the written statement and in the deposition and the other made before me must be false. With regard to item No. 5 being the business of Swastika Rice Mills, the petnr. in his affidavit-in-reply has stated that after the death of the father of the parties, he along with other members of the joint family became partners. with one Radhakissen Kanoria for carrying on Swastika Rice Mill at Nalhati, the said partnership business had its head office at Nalhati, the said partnership business with Kanoria was carried on from 1943 to 1945 when the said partnership business was dissolved and the said Radhakissen Kanoria and ors. filed a suit in this Ct. being suit No. 476 of 1946 for dissolution of partnership and for accounts. It is further alleged that Hiralal, Jawharlal and the petnr, defended the said suit and filed written statement in which they took the plea that this Ct. had no jurisdiction to try the said suit as the said business was entirely carried on at Nalhati and the head office was at Nalhati. Copy of the said written statement filed in the said suit No. 476 of 1946 has been annexed to the said affidavit-in-reply. In the said written statement it has been stated that the firm of Gourisankar Motilal used to carry on business as rice mill owners at Nalhati outside the jurisdiction of this Ct Mr. Sanyal frankly admitted before me that the firm of Gourisankar Motilal was the firm which had the rice mill under the name of Swastika Rice Mills. Thus Hiralal has stated in Para. 2 of his said written statement, which para, he has verified to be true to his knowledge, that the said Swastika Rice Mills is at Nalhati. But in his affidavit-in-opposition before me he has stated that it is carried on at premises No. 95, Netaji Subhas Road in Calcutta within the jurisdiction of this Ct. Again, it seems to me, that one of the two statements, the one made in the written statement and the other made in the affidavit-in-opposition before me, must be false. In any event items being items Nos. 2 (a), 2 (b) and 5 of the schedule are not items of immoveable property. That being the position, it does not appear that any immoveable property, even on the allegation made in the plaint is within the jurisdiction of this Ct.

5. Mr. Sanyal in the course of his argument before me contended that the premises No. 173, Harrison Rotd, Calcutta, where the business of Jutharam Ramrikhdas was being carried on was meant to be included in the list of properties annexed to the Schedule and was meant to be partitioned. He contended that although the parties holding the said premises as monthly tenants, monthly tenancy is immoveable property within the meaning of the T. P. Act. He contended that I should give his client leave to amend the plaint to make it clear that the interest of the parties in the premises No. 173, Harrison Road, Calcutta, is included in this suit and is to be partitioned. I cannot accede to the request of Mr. Sanyal. Apart from other considerations, the question of amendment is intermixed with the question of granting leave under Clause 12 of the Charter. If on the allegations made in the plaint no immoveable property is situate within the jurisdiction of this Ct. then no leave could have been granted under Clause 12 of the Charter and the leave which has already been granted is really in operative, and must be revoked. The effect, of what Mr. Sanyal has asked me to do, would be to allow him to file a fresh plaint with fresh leave, but I cannot do that in this appln. The only thing which I have to consider on this appln. is whether the leave which was granted under Clause 12 was properly granted and whether in the facts and circumstances of this case I should exercise my discretion and revoke the said leave. If then, I come to the conclusion that on the state of the pleadings before me no leave should have been granted under Clause 12 of the Charter, no part of the immoveable properties in this suit being within the jurisdiction of this Ct., I am bound to revoke the leave.

6. Apart from this, even if the interest of the parties in the said premises No. 173, Harrison Road--which is nothing more than interest of a monthly tenant in half of a room -- had been the subject-matter of this suit, even then, I would have in exercise of my discretion revoked the leave which had been granted under Clause 12 of the Charter. The petnr.'s case before me, as alleged in the petn. is that the said gadi at No. 173, Harrison Road, where the business is carried on was situate in a room at the said premises 173, Harrison Road, and occupied only half of the said room for which a rent of Rs. 22-8-0 used to be paid to the landlord. The said business, according to the petnr., had come to an end in the year 1947 and it had totally stopped since that year. The resps. in their affidavit-in-opposition have not denied, so far as I could find out, that the said business used to be carried on in half of a room in the said premises No. 173, Harrison Road Calcutta, and a monthly rent of Rs. 22 8-0 used to be paid to the landlord, but they stated that the said business continued until the year 1949 when by reason of the wrongful act and conduct of the deft. Ramkumar Maskara the said business came to a stantstill. Thus the item of property which is the, only item which could be Said to be within the jurisdiction of this Ct. out of a long list of properties consisting of about 50 in number is nothing but the interest in a monthly tenancy with respect to half of a room in premises No. 173, Harrison Road, Calcutta. If that is the position, then, I would in exercise of my discretion revoke the leave which has already been obtained. In my opinion, both in the matter of granting and revoking leave already granted under Clause 12 of the Charter there is always an element of discretion vested in Ct. The word 'leave' in Clause 12 suggests it. In my opinion, merely because a part of the cause of action arises or a part of the land is within the jurisdiction of this Court, a litigant cannot claim as of right that leave under Clause 12 of the Charter before filing his suit or that leave already granted under Clause 12 at the initial stage should be retain. ed. In the case of Madanlal v. Madanlal, Das J. laid down as one of the tests that if only a part of the cause of action arose within the jurisdiction then it is a question of discretion for the Ct. to give or refuse leave or where leave has already been granted to revoke or maintain the leave. Apart from this, on the question of bad faith as Das J. also held in that case, the 'insignificance of the part of the cause shown to have arisen within jurisdiction' may 'by itself suggest bad motive.' In my opinion the said observation is equally applicable to the case where almost a negligible part of the properties in a suit for partition is within the jurisdiction of the Ct. in which the suit is filed. In this case also it may be contended that the fact, that the jurisdiction of this Ct. has been sought to be founded on the existence of an almost insignificant part of the properties belonging to the parties, would by itself suggest bad motive. As I have already said that the business carried on at the said premises on the admitted case of both parties had come to an end at least a year before and the property in question is only a tenancy right with respect to a half portion in a room situate at No. 173, Harrison Road, Calcutta.

7. The question whether, to use the expression of Banerjee J., in the case of Kapurchand P. Seth v. Amritlal P. Madia, (suit No. 2089 of 1948 (unreported)).

'the pltf. has filed the suit in the bona fide exercise of his right of choice of forum or has abused his right, or in other words, whether the conduct of the pltf. in filing this suit in this Ct. amounts to an abuse of the process of the Ct. depends on the circumstances of each case.'

In this case the property in question on which the jurisdiction of this Ct. is sought to be founded is in reality no property at all. I asked Mr. Sanyal that if for instance all the parties to a suit have all their properties in Rajputana but some of them are residing in a tenanted house in Calcutta for the purposes of carrying on a business, should a, suit for partition be filed in this Ct. merely because of the fact that some of the parties to the suit have rented a house in Calcutta and are carrying on a business here, and if such a 'suit is filed in the H. C. at Calcutta, would it not be mala fide or an abuse of the process of the Ct.? Mr. Sanyal could not give me satisfactory answer to the same. Here also, none of the properties is situate within the jurisdiction of this Ct. except that some of the parties are staying in Calcutta by renting a portion of a room in a house at Burra Bazar where they previously used to carry on business, which business, admittedly, came to an end at least in the year 1949. To my mind, filing a suit on the basis of a mere right of a monthly tenancy in respect of a half portion of a room in a house when the rest of the properties amounting to about fifty items in number are all outside the jurisdiction of this Ct. amounts to an abuse of the process of this Ct.

8. The next consideration which weighed with me is the consideration of the balance of convenience. It is now well established on the authorities that the balance of convenience is a factor which has always to be taken into consideration for the purpose of determining whether the leave under Clause 12 of the Charter already granted should or should not be revoked. The question as to the quantum or the extent of the balance of convenience which must exist in order to induce the Ct. to revoke the leave granted under Clause 12 of the Charter has been the subject-matter of various decisions of this Ct. Das J. in the case to which I have refd. has held :

'that the Ct. will ordinarily take into consideration the balance of convenience and may if the balance is definitely in favour of the deft, apply the doctrine of forum convenience.'

Sinha J. in an unreported decision used the expression 'over-whelmingly and/or decidedly,' Mitter A. C. J. and McSharpe JJ. sitting in the Ct. of Appeal in Chotendas Mitta's case held 'that the balance of convenience must be strongly in his favour,' Banerjee J. in the case of Kapurchand P. Seth v. Amritlal P. Madia has gone further and has observed :

'That in order to justify revocation of leave it is necessary that something more should exist than a mere balance of convenience in favour of some other Ct. It must he proved to the satisfaction of the Ct. that either the expense or the difficulty of trial in this Ct. are so great that injustice will be done in this case or that it will be very difficult or practically impossible for the deft, who is applying for the revocation to get justice in this Ct.'

Speaking generally, according to Banerjee J. one may say that the deft, must show that some injustice will be done to him. Banerjee J. in this respect folld. the view expressed by Sen J. in the case of Ali Md. Ibrahin v. Adam Hajee Peer Mahomed, I. L. R. (1939) 2 cal. 199 where His Lordship observed:

'That in order to decide the question whether the suit should not be heard by this Ct it must be shown that it is so inconvenient for the deft, as to result in an injustice being done.'

Das J. in the case of Madanlal Jalan v. Madanlal has drawn a distinction between a case where the question arises whether the suit should be stayed or an injunction should be granted or whether a transfer of the suit from this Ct. will or will not be granted and a case where the question arises whether leave under Clause 12 of the Charter should be given or revoked and came to the conclusion that the position is quite different where leave of the Ct. under Clause 12 is necessary before a suit can be filed. His Lordship expressed the view that a stay of a suit under Civil P. C. or an injunction or transfer should not be granted or made merely on the grounds of balance of convenience but it must also be established that there is some element of injustice, bad faith or ill-will which is necessary to induce the Ct. to stay the suit. His Lordship Das J. after discussing the various cases on this point came to the following conclusions:

'It is said that under the Code the pltf. has the unfettered choice of forum and mere inconvenience, of the deft is not consd. as a ground for restricting the pltf's, right to file his suit in any Ct. of his choice within whose jurisdiction a part of the cause of action arose. That is undoubtedly the position under the Code.'

His Lordship further observed as follows:

'Because the Code has directly given an unfettered right to the pltf. to file his suit in any Ct. where a part of the cause of his action arose the Ct. will not subsequently indirectly take it away by applying the safeguards except in the case of gross abuse. That is why balance of convenience which is short of abuse may not under the Code be enough to induce the Ct. to stay the suit. That is also the principle underlying the cases reld. on by Mr. Ghose which insists on some element of injustice, bad-faith or ill will that is necessary to stay the suit. In Snowiuhite Food Products v. Punjab Vanspati Supply Co. Ltd., I have applied these principles in an appln for an injunction restraining the pltf. from proceeding with the suit outside jurisdiction. In those cases where the pltf. is free to file a suit is a Ct. of his choice, stay or injunction will not be granted only on the ground of balance of convenience. The position is quite different, however, where leave of the Ct. is necessary before a suit can be filed.' His Lordship in his judgment held that leave under Clause 12 cannot be claimed as a matter of right but it can be claimed only as matter of discretion from the Ct. and there is an element of discretion implied before leave under Clause 12 is given to a party before institution of the suit. Then His Lordship proceeded to observe as follows:

'that the same element of discretion which is implied before the leave under Clause 12 of the Charter is given to a party before the institution of the suit, is also implied in a case where after leave had been granted an appln. is made for revocation of such leave.' And ultimately, his Lordship came to the conclusion as I have already indicated, that the Ct. will ordinarily take into consideration the balance of convenience and may, if the balance is definitely in favour of the deft, apply the doctrine of forum convenience. His Lordship did-not go to the extent to which Banerjee J. in Kapurchand P. Seth v. Amritlal Madia had gone, namely, that leave should not be revoked unless it is proved to the Ct. that inconvenience is so great that injustice will be done or that it would be difficult or practically impossible for the deft. who applies for revocation to get justice in this Ct. With great respect to Banerjee J. I am unable to take that extreme view which His Lordship has taken and I respectfully concur with the view as expressed by Das J. in the case of Madanlal Jalan v. Madan Lal. That being so, in my opinion, if it is established that the balance of convenience is either 'strongly, to use the expression of Mitter A. C. J. and McSharpe J. or 'decidedly or overwhelmingly' as Sinha J. uses it or 'definitely' as Das J. puts it, is in favour of the case not being proceeded with in this Ct. but in favour of the suit being proceeded with in some other Ct. the Ct. should, in the exercise of its discretion apply the doctrine of forum convenience.

9. On this view, I have to decide whether the balance of convenience in this particular case is definitely in favour of the deft. and in favour of this case going on in some other Ct. It appears, as I have already indicated, that all the properties are outside the jurisdiction of this Ct. except that insignificant property, namely, a tenancy right in respect of a half portion of a room in a house. Two of the defts. on the averment made in the cause title appear to reside at Nalhati in Birbhum. The appct. in para. 9 of his petn. has alleged that all the books of account are at present lying at Nalhati with Jaharlal as will appear from the letter of Jaharlal dated 29-9-1949. This allegation has been dealt with by the resps. in their affidavit-in opposition and in para. 9 of the said affidavit they have stated that Ramkumar Maskara the petnr. has removed and secreted the material books of account, documents and papers. It is also alleged that the said Ramkumar Maskara has secreted most of the books belonging to the parties jointly in a room known as 'gadighar' in a building known as 'Maskara Building' in Nalhati which is in his absolute possession and has refused possession thereof to the Official Receiver. Thus it is not denied in the said affidavit, in opposition that the books of account are at present at Nalhati but what is alleged is that the said books have been secreted by and are in the possession of Ramkumar Maskara the petnr. The petnr, as I have already said resides at Nalhati and the suit is not only a suit for partition but also a suit for accounts and according to the resp. the petnr. is the karta of the joint family of the parties and as such is liable to render such accounts. In my opinion having regard to all the facts and circumstances of this case it would be decidedly inconvenient for the deft. if not for all the parties to the suit, if this suit is proceeded with in this Ct. instead of being proceeded with at Nalhati. Considering all the facts and the circumstances of this case I have come to the conclusion that the balance of convenience in this case is definitely in favour of this suit going on in the Ct. at Nalhati and not in this H. C. In this view of this matter also I have come to the conclusion that leave granted under Clause 12 of the Charter should be revoked.

10. Before concluding this matter, there is one small point to which I should refer. When the hearing of this matter was started it was found that the warrant of attorney filed in this suit by Mr. Section N. Choudhury, attorney on behalf of the petnr. was not stamped. Learned counsel for the resps. contended that as the warrant of attorney filed in this Ct. was not properly stamped the appln. should be dismissed. Learned counsel appearing on behalf of the petnr. submitted that it was a case of inadvertence and requested me to exercise my discretion Under Section 149, Civil P. C. In the circumstances I decided to exercise my discretion Under Section 149, Civil P. C. and allowed the attorney to put in the requisite stamp on the warrant of attorney. On the second day of the hearing i. e. on 20-2-1951 the attorney also filed a fresh warrant of attorney properly stamped obtained from his client. That was also done so far as I remember with my leave. At that time the only objection which was taken by learned counsel appearing on behalf of the resp. was that I should not exercise discretion Under Section 149, Civil P. C. and no other objection was taken and the matter then proceeded to a hearing and it was heard for a considerable length of time. Then at the close of the hearing Mr. Sen appearing on behalf of some of the resps. again took the objection, namely, that the warrant of attorney originally filed not being stamped the appln. should be dismissed and reld. upon the case of Jagannath Tandon v. Dharamshi Liladhar Vora, where Sen J. dismissed an appln on the ground that at the time when the summons was taken out M/s. Mukherjee and Biswas purporting to act on behalf of the parties who took out the summons had no warrant of attorney. The decision of Sen J. was upheld by the Ct. of Appeal. Mr. Sen further contended that as the attorney Mr. S. N. Choudhury had filed a fresh warrant of attorney on the morning of 20-2 1951 the old warrant of attorney must be deemed to be inoperative and therefore at the time when the summons was taken out its would be held that there was no warrant of attorney and therefore the appln. should be dismissed with costs. I am unable to accept that contention of Mr. Sen. In the first instance I must point out that it is not fair that this paint should be urged after the appln. was allowed to proceed to a hearing and the hearing had been concluded. But I cannot blame Mr. Sen because he was not present in Ct. when the preliminary point was heard and decided and the appln. was allowed to proceed to a hearing. In any event, I cannot accept the contentions of Mr. Sen. The case cited by him which was decided by Mr. Justice Sen is to my mind clearly distinguishable from the present case. In the present case the attorney for the petnr. had the warrant of attorney from his client but it was not stamped at the time when it was filed but in the case which was decided by Sen J. M/s. Mukherjee and Biswas the attorneys who purported to act on behalf of the appct. had no warrant of attorney at the time when the summons was taken out. Besides, although it is true that on the second day of the hearing, i. e. on 20-2-1951 the attorney, probably for greater safety filed a fresh warrant of attorney being properly stamped, but that to my mind does not make the original warrant inoperative so that it may be contended that at the time when the attorney took out notice of this appln. he had no warrant of attorney as contended by Mr. Sen. In the circumstances I have chosen to exercise my discretion conferred on the Ct. Under Section 149, Civil P. C. and I have directed the attorney and he has undertaken to put in proper stamps on the previous warrant of attorney which has been filed.

11. The result is that the appln. succeeds and the leave granted under Clause 12 of the Charter will stand revoked. The appct. is entitled to the costs of this appln. The Receiver will stand discharged and the plaint should be taken out of the file. The stay of the operation of this order is granted for a fortnight. In the meantime the Receiver is not to take any further steps in this matter.


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