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Mohammed Seraj Vs. Adibar Rahaman Sheikh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1172 of 1959
Reported inAIR1968Cal550,72CWN867
ActsEvidence Act, 1872 - Sections 17, 21, 31 and 145; ;Code of Civil Procedure (CPC) , 1908 - Order 3, Rule 4 - Order 41, Rule 1
AppellantMohammed Seraj
RespondentAdibar Rahaman Sheikh and ors.
Appellant AdvocateLala Hemanta Kumar and ;Manick Chandra Banerjee, Advs.
Respondent AdvocateDwijendra Narain Ghose and ;Nirmal Chandra Nandi, Advs.
DispositionAppeal dismissed
Cases Referred and Venkata Narasinha Naidu v. Bhasyakarlu Naidu
- has been stated instead that in hurry some necessary parties have been left out, for which a suit afresh has become necessary after having impleaded them. again, it appears to be worthy of note that the plaintiff takes time to produce the certified copy of the order in title suit no. 153 of 1945 (referred to as 'judgment of t. s. 153/ 45'): vide order no. 23 dated march 13. 1957, in the order sheet. but ultimately he does not produce it. it is produced instead by the defendants and marked ext. c so. the express admission by esban stands. once that is that, it is strong evidence against esban' son and successor in interest, the plaintiff whom il binds 8. an attempt is made to get round such cleat and damaging admission, on tht-authority of ramabai shriniwas nadgir v. govt. of bombay.....

Bijayesh Mukherji, J.

1. Is the admission in the plaint of a suit, permitted to be withdrawn with liberty to sue afresh of any effect, in the suit instituted afterwards, in pursuance of the liberty so given? That is the principal point raised upon this appeal by the plaintiff from an appellate judgment and decree of affirmance

2. The stance the plaintiff takes is: Plot No 208, admeasuring, 84 acres, under Khatian no 208, of mouja Bara, within the jurisdiction of Nalhati police-station, in the district of Birbhum, appertains to a Jama of Rs. 16-13as. 10 pies, under the landlord Maharaj Bahadur Singh. As the result of a partition amongst the co-sharers, it falls to the exclusive share of Hi at Sk. Seized of the plot so, Ijjat Sk. executes a heba-bil-ewaj, exhibit 1, for just that in favour of his nephew Esvan Sk. The date of a document as this is Baisakh 3, 1344 B. S., corresponding to April 16, 1937. Ever since, Esban Sk has been in possession thereof; and, after his death his son, Seraj, the plaintiff in the suit out of which this appeal arises.

3. The stance the defendants take is: Their predecessor in interest, one Ekram Hossain, took settlement of the land in controversy from the landlord Debaprasanna Mukherji in whose khas possession it then was So he did on payment of Nazar of Rs 160 and at a iama of Rs. 6, for which he was granted a receipt, exhibit A, on Jaistha 29, 1350 B. S., corresponding to a date in mid-June 1943.

4. In the plaint, exhibit C, of a previous suit Title Suit No. 153 of 1945, by the present appellant's father, Esban Sk, against Ijjat Sk. and Ekram Hossain as the principal defendants, as also Debaprasanna Mukherji, Maharaj Bahadur Singh and the recorded tenants as pro forma defendants, the admission made by him (Esbatl is, to notice only the gist of it:

1 Plot No 208 does not appertain to the jama of Rs. 16-13As.-10 Pies.

2 It was all along in possession of Debaprasanna Mukherji and his predecessors for lone over twelve years.

5. What remains then of the plaintiff's case founded on the land appertaining to the jama of Rs 16-13as.-10 pies under Maharaj Bahadur Singh? Little or nothing. And the defendants' case rested on settlement from Debaprasanna Mukherji ie well-high proved if the admission stands, The learned judges in the courts below hold that the admission, not rebutted in the second suit (out of which this appeal arises), does stand. So they dismiss the suit Hence this appeal

6. Mr. Lala Hemanta Kumar, appearing for the appellant contends that the admission cannot stand It cannot, because the suit the plaint of which contains such admission having been withdrawn, the admission stands withdrawn too. Mr. Ghose, appearing for the respondents, contends that the statement in the plaint remains, capable of boine pressed into service in a subsequent suit (as the present one is), no matter that the prior suit has been withdrawn.

7. An admission is not conclusive even of a matter admitted: Section 31, Evidence Act 1 of 1872 The maker of an admission is at liberty to prove that it was made under a mistake Here, in the second suit, the plaintiff makes no attempt even, to prove so. As the learned appellate judge observes:

''Before the learned Munsiff, the plaintiff gave no evidence regarding this admission by Esban in Title Suit No. 133 of 1945.'

More in the application dated November 19, 1945 exhibit 6, for withdrawal of the suit it has not been stated that this part of the averments in the plaint is a mistaken one It has been stated instead that in hurry some necessary parties have been left out, for which a suit afresh has become necessary after having impleaded them. Again, it appears to be worthy of note that the plaintiff takes time to produce the certified copy of the order in Title Suit No. 153 of 1945 (referred to as 'judgment of T. S. 153/ 45'): vide order No. 23 dated March 13. 1957, in the order sheet. But ultimately he does not produce it. It is produced instead by the defendants and marked Ext. C So. the express admission by Esban stands. Once that is that, it is strong evidence against Esban' son and successor in interest, the plaintiff whom il binds

8. An attempt is made to get round such cleat and damaging admission, on tht-authority of Ramabai Shriniwas Nadgir v. Govt. of Bombay AIR 1941 Bom 144. where Beaumont C. J. lays down that an admission by a party in his pleading in one suit is not finding on him in another suit. The reason why his Lordship holds so sitting with Sen J., is; Had the suit been a going one the party could have amended the pleading and undone the error. It will therefore, be a strange thing to hold that when the suit is no more and the chance to amend the leading is gone, a party is to be bound for till lime by its admission Such an approach merits three answers. One no question of an error does arise here. The plaintiff had a good enough opportunity in the second suit To say that it was an error. But be did not say so. Two the same Court ha explained in Dattatraya v. Shan-kar ATR 1960 Bom 153 that an admission of fact in one proceeding may be regarded as good evidence in a subsequent proceeding, Ramabai's ase AIR 1941 Rom 144 not laying down anything to the contrary Three, the recent Supreme Court decision in Basant Singh v. lanki Singh : [1967]1SCR1 renders Ramabai case AIR 1941 Bom 144 no longer good law Indeed, it has been disapproved and an admission by the defendant- in a Previous plaint signed and verified by them about the year of the death of a certain person was reckoned against then in a later suit the defendants having not shown that it was untrue Such is the law laid down by Bachawa J speaking for the Court So this sort of an it tempt by the appellant to flet the express, admission seen here in the prior suit must fall

9. Equally ineffective appears to be-the reliance placed upon Joy Chandra Chakrabarti v Aswini Kumai Dutt. (1905) 9 Cal WN CX1.VTT the original judgment in which has been requisitioned from the record-room and examined, at the desire of Mr. Lala, The Kitio of this case appears to be that the effect of an erroneous statement of fact in a plaint is spent with the withdrawal of the suit. So the key to this decision lies here: erroneous statement of fact, which, as the judgment of Maclean, C. J., sitting with Mittra, J. reveals, has been taken for granted. I cannot take so the admission of Esban Sk. in the previous suit Would I could. Again, P. N. Mooker-jee, J.. sitting with Renupada Mukherji, J.. in Chandra Kanta Goswami v. Ram Mohini Debi, : AIR1956Cal577 considers the correctness of the decision in Joy Chandra's case (1905) 9 Cal WN CXLVII open to doubt if it goes so far as to hold that mere withdrawal of a suit destroys the effect of an admission made therein. True it is in the case before P. N. Mookerjee, J. the order was payment of costs condition precedent to the institution of a fresh suit; and on failure of such payment, the suit was to stand dismissed. The evidence did not disclose if such costs were paid. Hence, on non-payment, dismissal of the suit would be there, and not withdrawal. So circumscribed, it would be no authority, as Mr Lala submits, on the question of the effect of withdrawal of a suit. But the doubt expressed by his Lordship is there to be taken into reckoning

10. Another class of case Mr, Lala cites in support of his contention that a suit withdrawn with leave of the court to sue afresh is a suit which does not exist in the eve of law The suit not existing, the plaint thereof, with admissions, averments and all cannot exist too. The first such case in order of date, is Parbhu Dayal v. Mandan Singh. (1911) 12 Ind Cas 323 (Oudh) a decision of Chamier, J. C. of the then Oudh Chief Court A suit for sale on a simple mortgage bond was allowed to be withdrawn in October 1907 with liberty to sue afresh On March 22, 1910 the fresh suit was instituted inside of two years from August 7 1908 when the Limitation Act, 9 of 1908 had come into force Section 31, Sub-section (1) thereof, enabled the mortgagee so to do a suit within 2 years from the date of the passing of the Limitation Act 1908 or within 60 years from the date when the money secured by the mortgage became due. whichever the earlier But Sub-section (2) of Section 31, prescribing inter alia that when a mortgage suit for sale was withdrawn after July 22, 1907 and before August 7, 1908 an application for restoration was to be made within 6 months from 7-8-1908. was sought to be foisted upon the suing mortgagee. In that case, his suit even if treated as an application under sub-section (2) would have failed, filed as it was on March 22 1910 - much beyond 6 months from August 7 1908. In that context Chamier, J. C held that withdrawal of the suit in October 1907 relegated the plaintiff in the same position as if he had not brought any suit at all Nothing like any admission in the previous plaint bulked large there as it does here.

11. The Full Bench decision of this Court in Purna Chandra Chatterjee v. Naren-dra Nath Choudhury : AIR1925Cal845 , reveals the lone voice of Suhrawardy, J. emphasizing that a suit, allowed to be withdrawn with leave to sue afresh, should be regarded as never brought, ceasing to be available for any purpose. But so broad a statement goes much more, if I may say so, with respect, than what the Full Bench is called upon to answer, whether a suit for enhancement of rent under S. 109 of the Bengal Tenancy Act is barred or not when an application under S. 105 Ibid for settlement of rent is withdrawn with liberty to bring a fresh suit. And Section 109 makes the mere making of the application under S. 105 enough to taboo the suit, no matter that the application made is withdrawn later. Nothing like any admission in the previous 11s bulks large in this case too and cannot therefore, reach the case on hand.

12. The same consideration applies mutatis mutandis to Sashi Bhusan v. Moti-bala Dassi : AIR1945Cal317 where S. 37A, sub-section (3) of the Bengal Agricultural De'btors Act, 7 of 1936, it is held, cannot bar an application under sub-section (2) by the debtor before the Board, even if, he had been to the Civil Court for relief under Section 36 of the Bengal Money-lenders Act, but only to withdraw it under Order 23, Rule 1, of the Civil Procedure Code, with liberty to sue afresh, as indeed the mortgagor-debtor there did The same1 principle again: for the purpose of the subsequent lis, no previous lis which would have otherwise been a clog to the later lis. is deemed to exist Not that the admission made there does not exist. It exists very much indeed, ever though there has been the withdrawal. Indeed, nothing more should be read into this decision. The context is the filing of a fresh lis Within that periphery the decision must remain, saying not a word about the admission made in the previous lis.

13. Bhimangouda v Sangappa Irappa AIR 1960 Mysore 178 turns on the plaintiff abandoning his alternative claim in the earlier suit to set aside an alienation for absence of legal necessity withdrawing the suit itself with liberty to sue afresh prayed for and granted and bringing the fresh suit with a claim to set aside alienation over again on just that ground. In this context it is held the parties are relegated to a position as if the earlier suit was not brought. So, here also, the ratio must be limited to that and that only, not wiping out clear admissions in a previous plaint Abandoning an alternative relief does not connote an admission that the facts on which it is rested (absence of legal necessity in the case under review) do not exist

14. The last case that remains to be noticed is Mt. Diali v Lachman Singh, AIR 1946 Lah 256. There the plaint of the previous suit adverts to the property as ancestral. But the written statement passes it by. Such admission by non-traverse is confined to the earlier suit only instead of being treated as an admission under Section 17 of the Evidence Act. But what is before me is an admission of assertion, not an admission by non-traverse. Again in the Mt. Diali's case, AIR 1946 Lah 256 the previous pleadings were not put in even; whereas in the case on hand the previous plaint gets into evidence as exhibit C.

15. In sum, suits may come and go, withdrawn with or without liberty to sue afresh, dismissed or decreed, - no matter which, - but statements made therein, - no matter where, in pleadings, petitions, affidavits, or evidence - remain for ever and for all purposes too allowed by law such as to be proceeded with as admissions, when they are found to be such, so long as they are not rebutted, (section 17 et seq., Evidence Act), or to be confronted with under S. 145 ibid. Otherwise the court, no less the party interested, will be deprived of very valuable evidence, nothing to say of a premium being put on reckless allegations with no apprehension of the makers thereof coming to grief in future for such glibness. Mr. Ghose's contention, therefore prevails over Mr. Lala's paragraph 6 ante. I find so

16. Mr. Ghose likes me to strike down the suit as barred by limitation, as the appellate Judge has done. But that 1 cannot very well do. Because the learned Judge in the court of first instance distinctly records that the issue on limitation (issue No. 2) was not urged before him, meaning thereby that it was not pressed before him. The learned appellate Judge has taken it as such Now, once an issue is not pressed before the trial court, it is not open to the party doing so to agitate it over again in the court of appeal. See, for example, Prasanna Kumar v. Adya Sakti Dassi : AIR1942Cal586 ; Premchand Manickchand v Fort Gloster Jute ., : AIR1959Cal620 ; Sales Tax Officer, Banaras v. Kanhaiyalal, : [1959]1SCR1350 and Venkata Narasinha Naidu v. Bhasyakarlu Naidu, (1902) 6 Cal WN641-29 Tnd App 76 (PC) the last case being an authority for the proposition that a Vakil's general powers in the conduct of a suit includes the power to abandon an issue which in his discretion, he thinks it inad visable to press. What is more, the recorded evidence does not show, as the appellate Judge thinks it does, that the plaintiff was not in possession within 12 years of the date of the suit. This point, therefore, fail; the respondents.

17. In the result, the appeal falls andis dismissed.

18. I make no order as to the costs of this appeal.

19. Leave to appeal under clause 15 of the Letters Patent has been asked for. Theimportance of the matter demands that thereshould be a far more authoritative decisionthan is possible in the hands of a singleJudge I therefore, allow the leave prayed for.

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