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Gopal Chandra Saha and ors. Vs. Amal Kumar Ghosh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 3081 of 1981
Reported inAIR1981Cal360
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rule 1; ;Constitution of India - Article 133(1)
AppellantGopal Chandra Saha and ors.
RespondentAmal Kumar Ghosh and ors.
Appellant AdvocateJ.N. Roy, ;S.N. Tagore, ;S.K. Ghosal and ;S. Sinha, Advs.
Respondent AdvocateS.B. Mukerjee and ;P.K. Das, Advs.
DispositionRevision dismissed
Cases ReferredT. Arivandandam v. T.V. Satyapal
- be correct in view of the bombay full bench decision and that question has to be decided in the suit. he submitted that if it is held that the landlords, the original owners, the nawabs and mr. sailaja ranjan chaki had not been made parties, that does not make the suit not maintainable as for mere non-joinder a suit cannot be dismissed under the provisions of order 1 rule 9 of the code of civil procedure. he also cited decisions in s.s. khanna v. f.j. dillon, : [1964]4scr409 and shankar ramchandra v. krishnaji dattatraya, : [1970]1scr322 where the question of high court's revisional jurisdiction under section 115 of the code of civil procedure has been laid down and in this case as he has submitted that thelearned district judge has erred in law which appeals on the face of his order.....

Salil Kumar Roy Chowdhury, J.

1. This is an application under Section 115 of the Code of Civil Procedure for setting aside an order dated 23rd of August, 1980 passed by the Additional District Judge, 12th Court, Alipur, in Miscellaneous Appeal No. 75 of 1979 allowing the said appeal by setting aside the temporary order of injunction passed by M.K. Sen Gupta, Munsif, Second Court, Alipur, in Title Suit No. 531 of 1976.

2. The scope of the application is very limited as has been laid down in the Supreme Court decision in Managing Director (MIG) Hindusthan Aeronautics Ltd. v. Ajit Prasad Tewari, : (1972)ILLJ170SC in the following terms (at p. 77):

'In our opinion, the High Court had no jurisdiction to interfere with the order of the First Appellate Court. It is not the conclusion of the High Court that the First Appellate Court had no jurisdiction to make the order that it made. The orderof the First Appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make the order. It is not the case that the First Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court cannot have invoked its jurisdiction under Section 115 of the Code of Civil Procedure'.

The said decision was the summary of several Supreme Court decisions. Therefore, in the present application altogether it has been argued at length and in great detail on behalf of the petitioners for several days as if this Court is hearing the original suit filed by Gopal Chandra Saha and another.

3. The subject matter of the suit is a plot of land being Premises No. 8/2 Palm Avenue, Calcutta, consisting of about 96 cottahs of land which admittedly belonged to two Nawabs, Nawab Ali Halder, and Nawab Ali Asgar Khan, which property is subject to an equitable mortgage for the balance of purchase price. The Vendor Mortgagor filed a mortgage suit and obtained a final mortgage decree for sale and on the 15th of March, 1962, the said property was sold in public auction in execution of the said final mortgage decree for sale on the 15th of March, 1962, and Mr. Amal Kumar Ghosh and Ors. the opposite party Nos. 1, 2 and 3, purchased the same and since then it appears that they have been prevented from taking possession as the auction purchaser of the said land due to intervention of various persons who have taken all sorts of proceedings from time to time before various Courts through various persons and this suit has been started as a last resort when everything failed and possession became imminent after dispossessing the persons in unlawful occupation. In this proceeding under Section 115 of the Code of Civil Procedure I need not go into the disputed facts as argued by both sides in detail. It will be sufficient for me to see whether the judgment of the Appellate Court suffers from any of the infirmities as laid down in the said Supreme Court decision.

4. Mr. J.N. Roy, appearing with Mr. Soven Tagore, Mr. S.K. Ghosal and Mr. S. Sinha, for the petitioners, elaborately argued firstly on the scope of provisions of Section 65A of the Transfer of Properly Act, as to the right of the mortgagee to lease the mortgaged property after themortgage decree. Mr. Roy also cited as to the principle of granting interim injunction which is summarised in Spry on Specific Equitable Remedies at pages 418, 421, and 422, Halsbury's Laws of England, Volume 24, 4th Edition, paragraph 955, page 538 and American Cyanamid's case in (1975) 1 All ER 504 at page 510 and the decision of this Court in Israil v. Samser Rohman 18 Cal WN 176 : (AIR 1914 Cal 362), the principle being whether a bona fide fair and substantial case has been made out.

5. Mr. Soven Tagore thereafter continued and cited large number of decisions in Ram Dayai v. Asghar Khan, AIR 1930 All 289, Ram Chander v. Maharaj Kunwar, AIR 1939 All 611 and then the Full Bench decision of the Bombay High Court in Anaji Thamaji Patil v. Ragho Bhivraj Patil, : AIR1973Bom75 and placed them in detail particularly paragraphs 21, 23, 24 and 25 on the principle of power of lease by the mortgagor after the mortgage decree. Mr. Tagore also referred to a decision in T.S. Doraj Swanii Wadia v. T.N. Aujha, (1970) 1 Mad LJ 11 and also a Supreme Court decision in Mangru Mahto v. Taraknathji Tarakeswar Math, : [1967]3SCR125 and a decision of this Court in Muhammad Juman Mia v. Akali Mudiani AIR 1943 Cal 577 at page 584, which is a view against the Bombay Full Bench decision in : AIR1973Bom75 as in the Calcutta Case it has been held that the mortgagee cannot lease out after the mortgage and in case where final mortgage decree for sale has been passed and in execution the property has been sold. Mr. Tagore submitted that in AIR 1943 Cal 577 the decision cannot be held to be correct in view of the Bombay Full Bench decision and that question has to be decided in the suit. He submitted that if it is held that the landlords, the original owners, the Nawabs and Mr. Sailaja Ranjan Chaki had not been made parties, that does not make the suit not maintainable as for mere non-joinder a suit cannot be dismissed under the provisions of Order 1 Rule 9 of the Code of Civil Procedure. He also cited decisions in S.S. Khanna v. F.J. Dillon, : [1964]4SCR409 and Shankar Ramchandra v. Krishnaji Dattatraya, : [1970]1SCR322 where the question of High Court's revisional jurisdiction under Section 115 of the Code of Civil Procedure has been laid down and in this case as he has submitted that thelearned District Judge has erred in law which appeals on the face of his order in view of the factual finding of a prima facie case by the District Judge. He also cited several decisions of various courts in Kailash Pat v. Goswami Brij Gopal, : AIR1950All405 , Dassain Nonia v. Ramdeo Prasad Patwa, : AIR1957Pat692 , Ragho Singh v. State of Bihar, : AIR1957Pat163 and Binad Lal Pakrashi v. Kalu Pramanik (1893) ILR 20 Cal 708 (FB) on the question of granting of tenancy by a co-owner as in this case admittedly the alleged rent receipts and the letter of alleged tenancy are purported to be granted to the plaintiff by one of the co-owners. It is alleged that the tenancy granted is Thika Tenancy and he submitted that the onus should be on the respondents to prove otherwise under Section 109 of the Evidence Act, and he drew my attention to Sarkar on Evidence, 12th Edition, page 110. He thereafter submitted that thika tenancy is not an unusual tenancy. Thereafter, he also submitted that admittedly the petitioners are in possession and as it is elementary principle in jurisprudence that possession is nine points in law. The balance of convenience and the prima facie case is entirely in favour of granting stay as has been done by the Munsif. Therefore, the Appellate Court is wrong on jurisdictional facts and Mr. Tagore thereafter submitted that of the Supreme Court decisions on the question of High Court's re-visional power some of them are on writ petitions and administrative orders. Those are The Managing Director (MIG) Hindusthan Aeronautics Ltd. v. Ajit Prasad Tewari, : (1972)ILLJ170SC , Ajantha Transports (P) Ltd., Coimbatore v. T.V.K. Transports, Pulampatti, : [1975]2SCR166 , Keshavlal Jethalal Shah v. Mohanlal Bhagwandas, : [1968]3SCR623 and a decision in Bai Atarani v. Dipsingh, 17 Bom LR 1074 : (AIR 1915 Bom 269) and submitted that this is a fit case where the Court should exercise its revisional jurisdiction and call for the records of the lower Court and hear the same in revisional jurisdiction. Mr. Tagore also submitted that unless the application is granted and a rule is issued, the petitioners will suffer irreparable loss as they will be deprived of tendering evidence in the case to show that they are thika tenants in respect of the premises at No. 8/2 Palm Avenue Calcutta, under the Nawabs who are the original owners of the said premises and the mortgagors. He submitted that both documentary and oral evidence will be produced at the hearing of the suit to substantiate and establish the petitioners rights which is protected under the Thika Tenancy Act. He strongly relied on the facts of their possession for such a long period and the prima facie evidence of the alleged rent receipts alleged to be issued by one of the Nawabs and submitted that the learned Munsif was right in issuing the injunction and the Appellate Court was wrong both in law and in fact and committed material irregularity and the said order is illegal. Therefore, Mr. Tagore submitted that the rule should be issued so that the records would be produced before this Court.

6. Mr. S.B. Mukherjee, appearing with Mr. P.K. Das, for the opposite parties, submitted that the scope of the present application is very limited. He submitted that the judgment of the Appellate Court is well considered whereas the judgment of the Munsif has been properly overruled. He referred to the affidavit-in-opposition of Bimal Ghosh affirmed on the 11th of September, 1980 at pages 43 and 44 where an agreement dated 15th of July, 1958 which is an agreement for sale was entered into between two Nawabs being Maulavi Haider Ali Khan and Maulavi Ali Asgar Khan as vendors and Satyenaranjan Sen as purchaser where in Clause (1) it is stated that the vendors inherited the said property at No. 8/2 Palm Avenue Calcutta, formely known as 40, Old Ballygunge First Lane, more fully and particularly mentioned and described in the schedule to the said agreement had the property by inheritance absolutely and fee simple in possession and subject to mortgage decree in Title Suit No. 284 of 1951 in the Court of Second Subordinate Judge, Alipur, and confirmed by the Hon'ble High Court at Calcutta in F. M. A. 58 of 1955 but otherwise free from encumbrances at or for price of Rs. 1,35,000/-. It is further recited in Clause (3) of the said agreement that the vendors simultaneously with the completion of the conveyance put the purchaser in vacant possession of the said property. Therefore, Mr. Mukherjee rightly submitted that on the 15th of July, 1958, being the date of the agreement for sale by the joint owners, the said two Nawabs, the said property was vacant and there could not be any tenant or thika tenant in the said premises granted by the Nawabs. He also referred to pp. 52 and 55 of the said affidavit-in-oppositionof Bimal Ghosh which is a copy of the affidavit of Abhay Pada Bagchi affirmedin June, 1977, in Appeal No. 310 of 1976 in Extraordinary suit No. 8 of 1974 between Ajita Debt v. Hosenara Begum whore in paragraph 4 the said Abhay Pada Bagchi who is the husband and constituted attorney of Smt. Ajita Debi, the appellant, stated as follows:

'I am in possession of the said entire property comprised of in holding being 8/2 Palm Avenue, Calcutta in the manner as follows:

1. Actual physical possession 8 cottahs of land including the building landing thereon.

2. 75 Cottahs through tenants as follows:

(a)Gopal Chandra Saha


(b) R.S. Sharma


(c) AtamSingh


(d) RabiGaraj


(e)Dhanbir Shaw

1 cottah

(f)Soffi Garaj


(g)Sarbeshwar Pradhan

1 cottah

(h)Bhagwan Shaw


(i)Abdul Sattar

7 cotthas

Out of the aforesaid first two tenants have filed a suit in Alipur Court, claiming to be the owner of their respective holding as aforesaid by adverse possession and they also obtained an injunction restraining the respondents Nos. 7, 8 and 9 from executing the decree by means of police help or otherwise.

7. Mr. Mukherjee rightly submitted that from the said statement of Abhoy Pada Bagchi who at that time claimed to be in possession of the entire premises No. 8/2 Palm Avenue, Calcutta, in the manner aforesaid and also stated that the present applicant, Gopal Chandra Saha, along with one R.S. Sharma filed a suit in the Alipur Court claiming their respective holdings by adverse possession and obtained an injunction by filing a suit in the Alipur Court preventing the purchaser in the auction purchase in execution of the mortgage decree from obtaining possession by police help. Therefore, those are prima facie contradictory statements as Smt. Ajita Debi is claiming possession and alleging that one of the present applicants, Gopal Chandra Saha, was her tenant in respect of 30 cottahs where the appellant has filed a suit claiming as owner of the said portion of the premises by title by adverse possession and obtained injunctionto prevent the auction purchaser to get possession through police help which was granted to them. Mr. Mukherjee submitted that the alleged rent receipts which are annexed at the time of the interlocutory application in the suit filed in the lower court the same appear to be signed by one of the Nawabs but not as constituted attorney on behalf of the heirs of the other Nawab. Mr. Mukherjee thereafter referred to the principle of granting injunction in an interlocutory application and cited the well-known decision of the Division Bench of this Court in Richard B. T. H. Chow v. James Chow Wakin, (1971) 75 Cal WN 173 paragraph 11 at page 178 and also Halbury's Laws of England, 4th Edition, Volume 24 page 538 Article 935 where the principle has been summarised and it appears that when serious question is to be tried injunction may be issued and reference to the American Cynamids' case in (1975) 1 All ER 504 at page 510 (C) where the principle is laid down. He also referred to Spry on Equitable Remedies at pages 421-422. Mr. Mukherjee also submitted that the Court is to assist the purchaser in a Court sale but has been held at bay by various contrivances by illegal and unauthorised occupiers at different stages from the very beginning. The balance of convenience is entirely in favour of not granting any injunction in this case. Higher right of the auction purchaser is beyond doubt and high degree of probability is in favour of the auction purchaser, the opposite party. The applicants are veteran litigants and it would be great hardship on the opposite parties if any order is made in this application. This is a revision application under Section 115 of the Code of Civil Procedure which has got a limited scope. He submitted that one owner of the property is alleged to have granted an agreement and the alleged rent receipts and he has not acted on behalf of the other. Further, Mr. Mukherjee submitted that tenancy, if any, in favour of the applicants was not in the ordinary course of management. He referred to the letter dated 30th of September, 1957, which is at page 32 of the petition being the alleged letter of tenancy. Thereafter, Mr. Mukherjee cited several decisions under Section 65A of the Transfer of Property Act Those are in Mangru Mahto v. Taraknathji Tarkeshwar Math : [1967]3SCR125 , Madan Mohan Singh v. Raj Kishori Kumari, 21 Cal WN 88 at p. 92:(AIR 1917 Cal 222), Gobinda Chandra Saha v. Sasadhar Mandal, AIR 1947 Cal 73, Kamakshya Narayan Singh v. Ghokan Ram, : [1953]4SCR108 and in the last decision it has been held that when there is no defence, order to uphold any lease by a mortgagor, it is the lessee who wanted to resist the claim of the mortgagee to establish that the lease in his favour was granted on the usual terms in the ordinary course of management and if he establishes such a plea, that is a complete answer to the claim of the mortgagee. But if the lessee fails to establish this position he has no defence to an action at the instance of the mortgagee that the lease is not binding upon him.

8. Mr. Mukherjee thereafter referred to the decisions in Maganlal Jagjiwandas, v. Lakhiram Haridasmal, : AIR1968Guj193 and Muhammad Juman Mia v. Akali Mudiani, AIR 1943 Cal 577 at p. 584 where the principle of granting lease by the mortgagor under Section 65A of the Transfer of Property Act, has been laid down. Mr. Mukherjee also submitted that the landlord and the said Sailaja Ranjan Chaki are not made parties to the petition and that is very significant. Mr. Mukherjee submitted that in the revisional jurisdiction this court cannot go into the question of Section 65A of the Transfer of Property Act or Section 52 of the Transfer of Property Act in detail. He submitted that in the Additional District Judge's judgment there is no error in law or miscarriage of justice. He further submitted that the cases cited by the petitioner have no application in the facts of this case.

9. After careful consideration of the respective submissions and considering the materials placed before me at this stage and after going through the judgments of the Munsif and the Additional District Judge Alipur, I am of the view that this is not a fit case where this court should exercise its revisional jurisdiction under Section 115 of the Code of Civil Procedure. There is no illegal exercise of jurisdiction by the Appellate Court. I do not find that the said jurisdiction was exercised with material irregularity whereas it appears to me that the learned Munsif should not have granted the injunction on such meagre materials. This is not a case where this Court should exercise its jurisdiction under Section 115 of the Code of Civil Procedure. From thematerials disclosed before me the present application appears to me to be a clear abuse of the process of the Court and it bears strange similarities with the case which went up to Supreme Court where also a veteran litigant in an ejectment suit tried to prevent possession by all sorts of vexatious judicial proceedings and in that context the observation of Krishna Iyer, J. is very illuminative and instructive which laid down a guideline for judges and warning for the litigants. The said decision is T. Arivandandam v. T.V. Satyapal, : [1978]1SCR742 where Krishna Iyer, J.: observed in para. 5 at p. 470 (of SCC) : (at p. 2423 of AIR) as follows:

'We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepetently resorted to. From the statement of the facts found in the judgment of the High Court it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful, not formal, reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue he should exercise his power under Order VII, Rule 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C. P. C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.

'It is dangerous to be too good''

Then again in para. 7 Krishna Iyer, J: observed at pp. 470-471 (of SCC) : (at p. 2423 of AIR) as follows:

'We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon onelawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for pending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy Courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramesesh for his young candour and correct advocacy'.

It appears to me that that case bears a strange similarity to the present case. In any event, those observations apply with full force to the present legal proceedings.

10. In the result, the application is dismissed with costs.

11. As it is purely a question of fact and only hypothetical question of law has been raised by creating untrue and false facts only to hang over the properties which are in wrongful possession of the petitioner, in this revisional application, as such, in my view, there is no question of any matter of public importance or conflict of decision and therefore the prayer for leave to appeal before the Hon'ble Supreme Court, is refused.

12. Mr. P.K. Das appearing for the opposite parties Nos. 1 to 3 opposes the oral application on behalf of the petitioner.

13. Having regard to the peculiar and special circumstances of this case it will be a great injustice to grant any stay in this case.

14. Let a plain copy of this judgment, countersigned by the Assistant Registrar (Court) be supplied to the learned Advocate appearing on behalf of the petitioner, if possible, in course of today.

15. On application, if any, made, office will expedite issue of certified copy of this judgment according to rules.

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