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Kumar Sarat Kumar Roy Vs. Dharamdas Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal738
AppellantKumar Sarat Kumar Roy
RespondentDharamdas Bhattacharjee
Cases ReferredKunja v. Monindra Chandra Roy
Excerpt:
- .....and arises out of a suit commenced by the plaintiff for setting aside an ex parte decree in a rent suit, namely, rent suit no. 24 of 1931 of the court of the second munsif of krishnagar, in which the present defendant was the plaintiff, on the ground of fraud and also on the ground that the court which decided the rent suit had no jurisdiction to try the suit under the provision of section 144, ben. ten. act. the facts really are not disputed. the present defendant as plaintiff had instituted a title suit against the present plaintiff in the court of the munsif at krishnagar in which he claimed recovery of possession of certain properties and mesne profits. the suit was decreed ex parte in favour of the present defendant and it was executed by being transferred to kalna court where.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal on behalf of the defendant and arises out of a suit commenced by the plaintiff for setting aside an ex parte decree in a rent suit, namely, Rent Suit No. 24 of 1931 of the Court of the second Munsif of Krishnagar, in which the present defendant was the plaintiff, on the ground of fraud and also on the ground that the Court which decided the rent suit had no jurisdiction to try the suit under the provision of Section 144, Ben. Ten. Act. The facts really are not disputed. The present defendant as plaintiff had instituted a title suit against the present plaintiff in the Court of the Munsif at Krishnagar in which he claimed recovery of possession of certain properties and mesne profits. The suit was decreed ex parte in favour of the present defendant and it was executed by being transferred to Kalna Court where a miscellaneous case was started on the objection of the present plaintiff who was the judgment-debtor. Ultimately a compromise was effected and the present plaintiff agreed to occupy the half-share of the two plots of land, namely, plots Nos. 106 and 1841, as a tenant at a rental of Rs. 16 and Rs. 13 odd per annum respectively. The Rent Suit No. 24 of 1931 was instituted by the present defendant on the basis of this solenama. It was one suit claiming two decrees in respect of the two jamas as contemplated by Section 144, Ben. Ten. Act. This rent suit was not contested by the defendant and it culminated in an ex parte decree which is now sought to be set aside. The trial Court came to the conclusion that there was no fraud which might be said to have vitiated the decree, and that although there was some technical defect in the service of the processes it could not form sufficient ground upon which a decree could be set aside. It further held that the Krishnagar Court had jurisdiction to pass a decree in the rent suit inasmuch as both the two plots of land were within the jurisdiction of Nakashipara thana which is in the District of Nadia. Against this decision, the plaintiff took an appeal to the lower Appellate Court and the lower Appellate Court set aside the decree of the trial Court on two grounds, namely, (1) that there was no proper service of notice as contemplated in Section 148(g), Ben. Ten. Act, and (2) that one of the two plots of land in suit, namely O.S. 1841, being situated outside the jurisdiction of the Krishnagar Court, that Court could not pass any decree in that rent suit.

2. It is against this decision that the present second appeal has been preferred. Mr. Das who appears in support of this appeal has argued first of all that the defect if any as regards service of notice was cured by the provisions of Section 21 and Section 18, Civil P, C. In my opinion this contention cannot be given effect to. The suit was decided ex parte in the absence of the defendant and it could not be said that there was any waiver on the part of the defendant to take this objection as is contemplated by Section 21, Civil P.C. Moreover, the question does not arise before the Appellate or Revisional Court; but a separate suit has been instituted by the plaintiff to have this decree set aside. In my opinion a separate suit would always lie to have such a decree set aside or to get it declared a nullity on the ground that the Court passing the decree had no territorial jurisdiction as regards the subject matter of the suit. In this view I am fortified by the decision of this Court in Kunja v. Monindra Chandra Roy AIR 1923 Cal 619.

3. As regards the application of Section 18, Civil P.C., I think that none of the requirements of that section have been complied with in this case. There was no indication that there was any uncertainty as regards the local limits of jurisdiction of two or more Courts where the property in suit was alleged to be situated and there was no statement recorded to that effect by the trial Court Judge as is necessary under the provisions of that section. The first contention therefore raised by Mr. Das must fail and is overruled. Mr. Das next argues that Title Suit No. 419 of 1924 was instituted in the Court of the Munsif of Krishnagar and that suit related to both these plots. As a decree was passed in that suit which has not been challenged by the present plaintiff, the decision in that suit is conclusive on the point that both these two plots of land are situated within the jurisdiction of Krishnagar Court. This contention also in my opinion cannot succeed.

4. The Krishnagar Court had perfect jurisdiction to decide the title suit which related to the two plots of land, under the provision of 8. 17, Civil P.C., when one of them is admittedly within the jurisdiction of Krishnagar Court. The question as to whether C.S. plot No. 1841 was also within the jurisdiction of Nakashipara thana and hence come within the territorial jurisdiction of Krishnagar Court, was neither raised nor decided either expressly or impliedly in that suit. This argument therefore is also of no avail to the defendant.

5. Mr. Das has lastly argued that this decree in so far as it relates to plot No. 106 cannot be set aside inasmuch as it is admittedly within the jurisdiction of Krishnagar Court. This contention appears to me to be sound. Section 144, Ben. Ten. Act, contemplates separate claims, separate decrees and also separate payment of court-fees. In fact it is a consolidation of several rent suits into one in which separate decrees have got to be passed by the Court and which are to be separately executed. In my opinion, the suit in respect of the jama which related to plot 106 could certainly be tried by the Krishnagar Court and the decree in respect of the same must be upheld unless it could be said that the decree was obtained by fraudulent suppression of notices. It is conceded that there was no fraud established by any evidence coming from the plaintiff's side. The only defect complained of was that there were no two witnesses regarding the service of summons as is laid down in Section 148(g), Ben. Ten. Act. In my opinion, even if there were defects in service, they might have been grounds for setting aside the ex parte decree under Order 9, Rule 13, but unless there was fraud with regard to service which kept the defendant in ignorance of the suit or unless by putting in a false return the plaintiff kept the Court in ignorance of the real state of affairs and thus enabled it to pass a decree which otherwise it could not have passed, no suit for setting aside the decree would lie. In my opinion therefore the third contention of Mr. Das must succeed. The appeal is therefore allowed in part. The decree of the lower Appellate Court is modified and it is held that the decree of the Munsif, Second Court, Krishnagar passed in Rent Suit No. 24 of 1931 must be set aside in so far as it relates to the claim in respect of C.S. plot No. 1841, but in so far as the decree is passed with regard to plot No. 106, it must be allowed to stand. No order is made as to costs of this Court.


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