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Amullya Charan Adhikary Vs. Annada Charan Ghosh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 696 of 1963
Judge
Reported inAIR1965Cal304,69CWN131
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 4 and 9; ;Calcutta High Court Appellate Side Rules - Rule 2 and 2B
AppellantAmullya Charan Adhikary
RespondentAnnada Charan Ghosh
Advocates:Bhupendra Kumar Panda and ;Joyendra Nath Nanda, Advs.
Cases ReferredRamlal v. Rewa Coal Fields
Excerpt:
- .....of the parties was made before the order of abatement was passed and though in the instant reference, abatement was ordered earlier than the order passed on the application for substitution, it seems to me that the said principle can be extended to the set of facts giving rise to the instant reference. the material interrupting factor in the instant reference, viz., that no order for substitution was actually passed on the pending application when the rule abated, is a distinction which comes to be merely a question of words. mr. panda can call in his aid the said principle enunciated by the judicial committee in his favour and in my view so long as the order for substitution stands, the instant case falls within the terms of the said rule.13. but as the order for substitution is.....
Judgment:
ORDER

C.N. Laik, J.

1. The essential question which arose for consideration in this Reference by the Registrar of this Court in its Appellate Side, was that of his competency to cancel his own order recording a note of abatement The particular questions which arose were: (1) the true meaning, scope and effect of the abatement order in the connected Rule in the face of the order of substitution made in the main appeal, (2) whether, when the application for substitution in the appeal, on the death of the sole respondent, was pending before the Registrar (which was granted by him later), he was justified in passing the order abating the connected Rule on the ground that the petitioner had not taken steps for substitution in the Rule, in time, on the death of the sole opposite party (very same person), (3) whether the Registrar is competent as stated above, to cancel his own order recording abatement, and (4) whether the reference is maintainable.

2. A part of the necessary history with the relevant facts of the case is, in short, as follows:

Against the decree of the Court of Appeal below, dismissing a suit for declaration of title and confirmation of possession, accepting the defence inter alia, viz., that the properly was debutter and that the plaintiff did not acquire any title, he presented the above Second Appeal in this Court, on April 20, 1963, Mr. Bhupendra Kumar Panda, who was formerly a Registrar for sometime of the Appellate Side of this Court, accepted the Vakalat-nama on the same date, i.e., April 20, and signed also on the front page of the Memorandum of Appeal as the Advocate for the appellant. The appeal was, thereafter, admitted under Order 41, Rule 11 of the Code of Civil Procedure on July 5, 1963. On that very day an application for stay was moved and Civil Rule No. 2515 (S) of 1963 was issued; but it appears that another advocate, viz., Mr. J.N. Nanda signed on the front page of the application for stay, as well as the affidavit portion thereof. Mr. Panda did not subscribe his signature on the said application for stay.

3. On July 18, 1963 casualty of the sole respondent in the appeal (Annada) occurred and this demise is the cause of the present reference. The notice of the Rule returned unserved on September 27/November 21, 1963 with Annada's death report (the sole opposite party in the Rule).

4. Meantime, on September 13, 1963 an application for substitution, of the heirs of Annada was filed in the appeal. In this application for substitution, again, the said advocate, Mr. Nanda, alone signed. On November 19, 1963 the Office having pointed out that the substitution application was signed by Mr. Nanda without any power, the Registrar presiding in the Lawazima Court, records Mr. Nanda's statement on November 22, to the effect that he has since accepted the Vakalat-nama. Mr. Nanda's signature appears thereafter on the back of the Vakalatnama but without any date and fitted within the intervening space, viz., between Mr. Panda's signature and his statements of acceptance of the Vakalatnama. On November 28, an office note followed that subsequent acceptance by Mr. Nanda should be made before the Deputy Registrar who is to endorse the date of acceptance. The matter came up again before the Registrar on 3rd December and he directed the learned advocate (Mr. Nanda) to have his acceptance duly endorsed by the Deputy Registrar within a week. It appears that on December 9, 1963, Mr. Nanda simply puts another signature below Mr. Panda's signature and his statements, dating December 9, 1963 on the back of the Vakalatnama, which was endorsed and dated by the Deputy Registrar.

5. On the other hand on November 27, 1963, two weeks' time was granted by the Registrar in the Rule to the petitioner for taking steps on the death of the said Annada, the sole opposite party. On June 17, 1964, the Registrar by his order recorded a note of abatement in the Rule, as no step for substitution or otherwise has been taken. It might be stated that this order acquiesced by the petitioner, was made by the Registrar summarily,, there and then, without looking into the fact that an application or substitution was pending in the appeal since September 13, 1963 though the matter depended before the same learned Registrar.

6. After about ten months were consumed on the application, the prayer for substitution was Allowed in the appeal by the Registrar on July 1, 1964. In other words, the appellant got an order putting up new respondents in the appeal though in the Registrar's first deliverance of June 17, 1964 in the connected Rule, as already stated, an order for abatement was already recorded which is hurtful to the petitioners. On this date, i.e., on July 1, 1964 Mr. Panda addressed a letter to the Registrar pointing out that a note of abatement in the connected Rule was made through 'oversight'. Thereafter on July 30, 1964, the Registrar, after a careful reconsideration, not unnaturally repeated his former orders but referred the matter to the Court with the following observations :

'I have doubts if I am competent to cancel my order in the Rule regarding a note of abatement. As the matter is not free from doubt, let it be laid before the Bench for orders.'

7. On the first and the second question which go together, the decision of the Judicial Committee of the Privy Council in Brij Indar Singh v. Kanshi Ram, 44 Ind App 218: 22 Cal WN 169 AIR 1917 PC 156, has been specially pressed upon my attention. It is argued that the general principle laid down therein, namely, that the substitution of the new plaintiff or defendant for one stage of a suit is effective for all stages of the suit, should be applied in all cases including in the instant reference.

8. The said judgment of the Judicial Committee is of great assistance in considering the facts of this reference. Though I have been impressed with the reasoning which underlay the judgment and which had seemed to me, with greatest respect, to accord with the principle, properly to be applied in the facts of the particular case but I hasten to add that if it meant to lay down an absolute proposition of law generally for all cases the said doctrine should now die and that for three reasons; First, the principle is too rigid. Second its application would be capable of working grave injustice in certain cases and third, this would be to put the law into a strait-jacket which it need not wear. I am, however, disposed to affirm and I think it highly desirable to state that in such a matter, circumstances vary from case to case, each of which must be decided on its own facts.

9. The facts in the said decision of the Judicial Committee, relevant for this reference, when analysed, show that when the file was before the Chief Court, for revision of an order of the District Judge, directing a party to produce certain books, Raja Balbir died in February, 1906. Brij Indar Singh, the appellant, applied in the Chief Court on May 9, 1906, for substitution of his own name and this was ordered on May 19, 1906 but ex parte. Defendant No. 2 (Joti Mal) also died and the prayer for his substitution was granted (again ex parte) on January 11, 1908; the file being still in the Chief Court. When the papers went back from the Chief Court to the Court of District Judge (Captain Sanford), he, on the application of defendant No. 1 and another, ordered abatement, on March 16, 1908 (also ex parte) under Sections 366 and 368 of the Code of Civil Procedure of 1882, obviously, without looking into the order for substitution already passed by the Chief Court. On being moved by Brij Indar under Section 371 of the Code, the orders for abatement were later set aside by the successor District Judge (Mr. Prenter). Johnstone, J., of the Chief Court, held Prenter's order to review, to be ultra vires; quashed the same and restored Mr. Sanford's order which abated the suit. In his opinion, the plaintiff was to appeal to the Chief Court against the order of abatement. On such appeal thereafter being presented, Johnstone, J., then held that it was time barred. Thus the sole question before the Judicial Committee, directly raised was, whether the time spent in presenting the appeal fell to be deducted under Section 5 cf the Limitation Act, 1908. Their Lordships went into the question of the judicial discretion under Section 5 of the said Act, and also went into the question as to whether an order for abatement should or should not be made ex parte and in that context, at page 228 of the said report, their Lordships thought.

'it better to say further, that if the defendant had been present, it is clear that no order for abatement ought to have been pronounced. Plaintiff as representative of the original plaintiff and the defendants as representatives of Joti Mal, had been introduced in the Chief Court No doubt, that was only done in course of an interlocutory application as to the production of books. But the introduction of the plaintiff or defendant for one stage of a suit is an introduction for all stages and the prayer which seems to have been made ob majorem cautelam by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect.'

10. I make no apology for introducing the said citation and I do so for the reasons that:

(1) it foreshadows the proper test which should be applied in the facts of the instant Reference,

(2) the said doctrine has the same historical origin, as of the English law,

(3) the Indian law rests on the same foundation and

(4) it is the basis of the relief claimed by the appellant. Though the said citation seems to show that there is a general rule expressed; but the same, in my opinion, cannot be treated as a binding authority to that effect and extent. In my judgment each case must nevertheless be examined as to its own circumstances to see whether they make it fall within or without the terms of the said rule.

11. I am tempted to say that the doctrine laid down above has lived for about half a century, although it has shown signs of weakness in some cases and in others a slightly different path was sometimes followed and in the third group of cases, observations were made in favour of the doctrine; but for the purpose of this reference ft is not necessary to express any opinion on the two decisions of the Madras High Court, one, by a Single Judge, in the case of Sankaranaraina Saralaya v. Laxmi, : AIR1981Mad277 and the other, a Bench Decision in the case of Swaminatha v. Gopalaswami, : AIR1937Mad741 explaining the said decision of the Judicial Committee as both the said decisions rest on sets of facts different from the reference. Further, two decisions of the Supreme Court, (Judgments in both the cases, being delivered on behalf of the Court, by Gajendragadkar, J., as his Lordship then was), in Sitaram v. Nagrashana, : (1960)ILLJ29SC and in Ramlal v. Rewa Coal Fields, Ltd., : [1962]2SCR762 dealt only Sections 5 and 14 of the limitation Act, 1908, and in that connection, referred to the said decision of the Judicial Committee. The learned Judges of the Supreme Court, though they are free either to kill or to preserve the doctrine, do not touch the points giving rise to the instant reference. It is also unnecessary to decide whether this Reference Bench has got any discretionary indulgence in such matters. In my opinion it cannot be right to lay down and I do not think it possible or useful to attempt any further precision in the statement of the relevant principle which I have already stated.

12. In the said decision of the Judicial Committee though the introduction of the parties was made before the order of abatement was passed and though in the instant Reference, abatement was ordered earlier than the order passed on the application for substitution, it seems to me that the said principle can be extended to the set of facts giving rise to the instant reference. The material interrupting factor in the instant Reference, viz., that no order for substitution was actually passed on the pending application when the Rule abated, is a distinction which comes to be merely a question of words. Mr. Panda can call in his aid the said principle enunciated by the Judicial Committee in his favour and in my view so long as the order for substitution stands, the instant case falls within the terms of the said rule.

13. But as the order for substitution is not a matter for decision in this Reference which has been made ex parte (for better or worse) and as the respondents on their given rights and after their appearance, as the records stand to-day, might challenge the said order of substitution, inter alia on the ground that the application for substitution was filed out of time, viz., on December 9, 1963 only when the authority of the filing advocate Mr. Nanda was accepted by the Deputy Registrar and not on September 13, 1963 when the filing advocate had no power or authority; I am expressing no opinion on the order for substitution, being outside the scope of reference.

14. Mr. Panda though argued with persuasive force in the beginning of his address and persisted that his junior Mr. Nanda accepted the power in the appeal along with him on April 20, 1963 and consequently, the learned advocate filing the application for substitution on September 13, 1963 had the authority to do the same and, therefore, the said application is in time; ultimately in his wisdom, rightly did not press the point further when the attention of Mr. Panda was drawn to the successive office notes beginning from November 19, 1963 and the orders of the Registrar upto December 3, 1963 (detailed above) which proved that his argument on this paint are nothing but wild words of little import. I cannot again help observing how in spite of the provisions of the Appellate Side Rules, the original Vakalatnama was made available by the office to Mr. Nanda, in order to enable him to put his first signature on the back of the Vakalatnama, above Mr. Panda's signature, on which the office put up the note on November 28. 1963. It also strange that the said signature is allowed to be retained even upto this date and the learned advocate is not directed to pen it through even after he is allowed by the Deputy Registrar to accept the power on December 9, 1963 and even on July 30, 1964 the date of the order of reference by the Registrar.

15. Accordingly, I hold on the first and second questions, that in the facts of this case, it is not in doubt, that the Registrar's order abating the rule (which is in effect a judgment in favour of the opposite party) in the face of the substitution order, is erroneous and the Registrar is not justified in passing the order abating the connected Rule.

16. On the third question, viz., as to whether the Registrar is competent to cancel his own order recording abatement, though he has not clearly expressed his mind in the order of reference, possibly matter or Clause 25 of Rule2 of Chapter II, Part I of the Appellate Side Rules was at the back of his mind.

Rule 2:

'In addition to the powers conferred upon him by other rules, the Registrar shall have the following duties and powers in relation to civil and criminal matters.'

** ** ** **

25. 'To record an order of abatement of all appeals and applications after the expiry of the statutory period, provided that he shall not be entitled to entertain applications of parties for the revival or abatement of any appeal or other proceeding.'

17. On reading the said Rule, I do not find that there is any bar on the competency of the Registrar to cancel his own order, passed through oversight, error or mistake, due to ignorance or otherwise. He felt in the order of reference that he had committed an error. It is a case of 'oversight'. I have put the word oversight in inverted commas because I think it is misleading to seek an analogy of the said word in the context of the Registrar's reasoning as to why he passed the order for abatement. In my opinion, the Registrar has jurisdiction to correct his own error, (See the principle in the Supreme Court decision of Keshar-deo v. Radhakissen, : [1953]4SCR136 . He would not be entitled under cl. (25) to entertain applications for the revival or abatement of any appeal or other proceeding on merits but, it would be a disgrace to the law, including the Appellate Side Rules, to maintain that the Registrar, in such circumstances as in the instant Reference, is incompetent to rectify his own mistake. I am on the other hand, unable to conclude that the Registrar is properly free from all responsibility in exercising his power and duties in that regard. Rather he should exercise his discretion with considerable liberality.

18. On the last question, viz., as to whether the reference is maintainable, I may refer to Rule 2B, Chapter II, Part I of the Appellate Side Rules which runs as follows:

'2B. The Registrar may delegate to the Deputy Registrar or to an Assistant Registrar any function with which he is vested under Chapters IV and V and VIII to XIII except those referred to in Clauses (5) to (7), (10), (11), (14) to (19) and (25) of Rule 2. He may also refer any matter under Rule 2 to the Court for orders.'

19. As it comes within the last sentence ofRule 2B quoted above, the Registrar's Reference ismaintainable.


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