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Sukiman and ors. Vs. Sm. Kancha Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 125 of 1953
Judge
Reported inAIR1959Cal663,63CWN442
ActsIndian Independence Act, 1947 - Section 9; ;Indian Independence (Legal Proceedings) Order, 1947; ;Code of Civil Procedure (CPC) , 1908 - Sections 2(5), 13 and 44 - Order 23, Rule 3
AppellantSukiman and ors.
RespondentSm. Kancha Bibi and ors.
Appellant AdvocateSibakali Bagchi and ;Sudhindra Kumar Kar, Advs.
Respondent AdvocateNaresh Chandra Ganguli and ;Sib Kumar Mazumdar, Advs.
DispositionAppeal allowed
Cases ReferredSyal v. Heyward
Excerpt:
- .....the sole decree in question was passed by the said learned judge, that is, the learned subordinate judge, dinajpur, in or about, november, 1948,--or, more precisely, on or about november 22, 1948, as stated hereinbefore--that is, after the said partition. admittedly also, the court at dinajpur which passed the said sole decree was a court in pakistan after the partition of india and the principal question that arises in his appeal is whether the present west dinajpur court in the indian union, within which or within whose jurisdiction all the parties are or may be living and all. the lands, sought to be partitioned by the impugned partition decree are also situate, has jurisdiction to entertain the present suit and to grant the plaintiffs the reliefs prayed for namely, a declaration that.....
Judgment:

P.N. Mookerjee, J.

1. The appellants before us were the plaintiffs in O. C. Suit No. 16 of 1949 in the Court of the Subordinate Judge, West Dinajpur. In that suit, the prayers were, inter alia, as follows:

'That a decree may be passed, 'declaring that the sole-decree passed in Partition Suit No. 104 of 1947 of the Court of the Subordinate Judge at Dinajpur, is fraudulent' and 'that a decree for injunction may be passed against the defendants restraining them from taking possession of the (suit) lands, according to Sahams, by putting the said sole-decree into execution and from realising any cash money from the plaintiffs.' '

2. The sole-decree, referred to above, was passed in the above Partition Suit No. 104 of 1947 of the Court of the Subordinate Judge at Dinajpur on or about November 22, 1948, and the plaintiffs' main allegation in the present suit was that the said decree had been obtained by fraud by the defendants. In the plaint, there was also an allegation that, in pursuance of the said decree, a Commissioner had been appointed and he had actually come to the disputed properties to make Sahams for the parties and the plaintiffs had come to know of the same on 6-4-1949.

3. The present suit was instituted on 13-6-1949, and it has been dismissed by the learned Subordinate Judge on the preliminary ground that the Court, that is, the Court of the said learned Judge, has no jurisdiction to entertain the said suit. It appears that the defendan's all reside within the jurisdiction of the Court of the Subordinate Judge of West Dinajpur and that the lands, in respect of which the impugned sole-decree for partition was passed, also lie within the jurisdiction of the said Court. It appears also that the plaintiffs have further alleged that the cause of action for the present suit arose, at least in part, because of he Commissioner's visit to the lands in suit for making appropriate Sahams in terms of the impugned sole-decree and that, accordingly, the cause of action also arose, at least in part, within the jurisdiction of the West Dinajpur Court.

4. Before we proceed to deal with the merits of the appeal, it is necessary to refer to two other facts. The partition suit was instituted before the learned Subordinate Judge at Dinajpur prior to the partition of India, the actual date of its institution being some date, prior to 15-8-1947. But the sole decree in question was passed by the said learned Judge, that is, the learned Subordinate Judge, Dinajpur, in or about, November, 1948,--or, more precisely, on or about November 22, 1948, as stated hereinbefore--that is, after the said partition. Admittedly also, the Court at Dinajpur which passed the said sole decree was a Court in Pakistan after the partition of India and the principal question that arises in his appeal is whether the present West Dinajpur Court in the Indian Union, within which or within whose jurisdiction all the parties are or may be living and all. the lands, sought to be partitioned by the impugned partition decree are also situate, has jurisdiction to entertain the present suit and to grant the plaintiffs the reliefs prayed for namely, a declaration that the said partition decree is fraudulent or was obtained by fraud and an injunction, restraining the defendants from taking possession of the suit lands in terms of the said decree. The learned Subordinate Judge has discussed in his judgment certain principles which he attributes to privato international law, and has also referred to certain practical difficulties in support of his view that the suit in question cannot be maintained before a Court in the Indian Union. We shall examine these reasons later on but, as, in our view, the conclusion of the learned Subordinate Judge is erroneous and is not supportable in law, we will first state our own conclusion and give, in brief, the main reasons in support thereof.

5. There can be no question that, apart from the fact that the decree in question was parsed by a Court which, after the partition of India, had gone over to Pakistan, that is, outside the Indian Dominion, the present Court of the learned Subordinate Judge at West Dinajpur would have jurisdiction to entertain the instant suit and also to grant the plaintiff the reliefs, prayed for in their plaint, provided, of course, they succeed in establishing their case of fraud on the merits. The defendants are all, according to the plaint, residents within the jurisdiction of that Court, that is the Court of the learned Subordinate Judge of West Dinajpur. The cause of action also, as alleged in the plaint, has arisen, at least in part, within the said jurisdiction. Prima facie, therefore, that Court will have jurisdiction to entertain the suit and to give the plaintiffs appropria'e reliefs in terms of their plaint, if, of course, their case on the merits as stated in the plaint, is made out.

6. The defendants, however, contended before the learned Subordinate Judge,--and that contention has been repeated before us,--that, as the sole-decree in question was made by a Court, which had fallen in Pakistan after the partition of India and was a Pakistan Court at the time when the said sole-decree was passed, no Court within the Dominion of India or the Indian Union has jurisdiction to give any relief in respect of the said decree. The basic submission, underlying the above con ention, is that the Court in Pakistan is a foreign Court and, therefore, its decree cannot be touched by any Court in the Indian Union. It may be stated here that, although, in the plaint, the prayers were for a declaration and injunction, as set out above, at the top of the plaint there was a description given that the suit was for setting aside a decree and for injunction and the learned Subordinate Judge also treated the instant suit as a suit for setting aside the impugned sole-decree and for consequential injunction. In our opinion, that somewhat misled the learned Subordinate Judge, It may be that a Court in India may not be entitled to set aside a decree, passed by a Court in Pakistan, but we need not express any final opinion on that point, in view of the nature of the reliefs, prayed for herein, namely, for a declaration and in-junc'ion, as set out hereinbefore. But, even accepting that position, we do not think that the present suit should be thrown out on the preliminary ground that the suit, as framed, is not entertainable by the Indian Court. It is perfectly plain that, under Paragraph 4, Sub-paragraph 1 of the Indian Independence (Legal Proceedings) Order, 1947, passed under the Indian Independence Act, 1947, the Court at Dinajpur, which, of course, after the Partition of the Country, fell within the Dominion of Pakistan, retained its jurisdiction over tho suit for partition (Partition Suit No. 104 of 1947, in which the impugned sole-decree was passed) which had been pending there, haivng been validly instituted in the said Court at Dinajpur, prior to the said Partition of India. In view of the terms of sub-paragraph (1) and also of sub-paragraph (3) of the said paragraph 4, it is not possible--nor would it be proper,--to hold that the Dinajpur Court, although it became, after the Partition, a Court of the Pakistan Dominion, was a foreign Court, so far as the Courts in the Dominion of India or the Indian Union were concerned, in respect of the said decree. If it was not a foreign Court, there can be no question that the prayer for declaration that the above impugned decree was viiated by fraud and for consequential injunction could be granted by the learned Subordinate Judge at West Dinajpur (who had, otherwise, jurisdiction to entertain the present suit) in view of the decisions of this Court, reported in Nistarini Dassi v. Nivndo Lal Bose. ILR 30 Cal 369 at pp. 381-3 and Sarthak-ram Maiti v. Nundo Ram Maiti, 11 Cal WN 579 at pp. 580-1. The broad principle; underlying the said decisions, had been recognised and given effect to in an earlier decision of this Court, in the case of Kedar Nath Mookerjee v. Prosomia Kumar Chatterjee, 5 Cal WN 559 and was adopted and approved in the later decision, reported in the Indian Provident Co Ltd. v. Govinda Chandra Das, 27 Cal WN 359 : (AIR 1923 Cal 425), and the matter has lately been fully discussed and the same conclusion has been reached in the recent case of this Court, reported in Asgar Ally and Co. v. V. Satyanarayana, : AIR1957Cal317 . In Statute also (Vide Section 44 of the Indian Evidence Act) we find ample recognition of the said principle.

7. Even if the Dinajpur Court be regarded as a foreign Court, even then there will be no difficulty for the West Dinajpur Court to entertain the instant suit and no difficulty also in its way to grant the reliefs, prayed for in the plaint by the plaintiffs, if, of course, their case on the merits, as stated in the plaint, be made out. This will be amply supported on principle which is well established from very early times under the authority of the leading English case of Abouloff v. Oppen-heimer and Co., (1882) 10 QBD 295, (citing and relying on, inter alia, the famous 'The Duchess of Kingstone's case, (2 Sm. L. C. 784, 8th Ed.)'), explained and re-affirmed and applied in the more recent and oftener quoted English decision in the case of Vadala v. Lawes, (1890) 25 QBD 310, (which discussed and followed Abouloff's case 1882-10 QBD 295), and also fully recognised in the very recent decision in England in In re the Foreign Judgments (Reciprocal Enforcement) Act, 1933, Syal v. Heyward, (1948) 2 KB 443, which latter case, though it may be distinguished on facts and because of the special statute Foreign Judgments (Reciprocal Enforcement) Act, 1933, passed in the meantime, expressly adopted and applied the principle, laid down in the earlier cited authorities. That principle also underlines Section 13 of our Code of Civil Procedure.

8. It is to be remembered further that the impugned decree in the present case is a compromise or sole-decree which, as is well-known, is subject to all the infirmities of the contract or compromise, on which it is made. Indeed, in the matter under consideration, the impugned sole-decree cannot claim greater immunity or protection than the underlying contract, and, as there can possibly be no objection in law to an Indian Court, otherwise competent and having jurisdiction, to grant a declaration in respect of a foreign contract that it is not binding on the parties before it, and to restrain its operation or enforcement within, of course, the territories of India,--we do not think that the jurisdiction of the West Dinajpur Court to entertain the present suit can be ruled out merely on the ground that the impugned sole-decree is a decree of the Pakistan Court.

9. From whatever point of view, therefore, the matter may be looked at, jurisdiction to entertain the present suit cannot be denied to the learned Subordinate Judge of West Dinajpur and the learned Subordinate Judge's view to the contrary cannot be sustained. In our view, therefore, the present suit, as it stands upon the plaint being properly read, would be perfectly entertainable in the Court of the Subordinate Judge of West Dinajpur and should be--and should have been,--dealt with by him on that footing..

10. We have recorded our conclusion and given reasons in support thereof. We would now say a few words with regard to the reasons, given by the learned Subordinate Judge in support of his contrary conclusion.

11. The learned Subordinate Judge, in the first place, felt difficulty from the fact that, according to him, the Court in the present case was 'confronted by the question whether a foreign decree can be set aside by a Court in India', it being 'well settled that no Court will pass a decree which it cannot enforce.' As we have pointed out above, the present suit is not at all a suit for setting aside a decree. It is merely for a declaration and an injunction and its operation may very well be limited within the boundaries of the Indian Union. No question, therefore, arises of setting aside a foreign decree or of passing a decree which cannot be enforced by the Court. The first reason, given by the learned Subordinate Judge, however well-stated and well-based on principle that may be, has, therefore, no application to the facts of this case.

12. The learned Subordinate Judge next envisaged two sorts of complications if the present suit were entertained by him. He felt that it would not be possible for his Court to have access to the original records of the suit at Dinajpur and, therefore, the present suit, even if entertained, could not be effectively disposed of by him. That is a matter which does not not strictly arise at the present stage and we do not think also that any such difficulty will arise at any time in the course of the present proceedings. There is a procedure for having such records, brought before Courts in India, and recourse to such procedure may easily solve or overcome the envisaged difficulty. The learned Subordinate Judge also found himself confronted with another difficulty, namely, that the decree of his court, setting aside the Dinajpur decree, will not bind the Pakistan Court. That also does not strictly arise for consideration in this case. The suit is for a declaration and injunction and the operation of the declaratory decree and of the injunction for the purpose of this case may well be limited or confined within the boundaries of India and that will effectively and sufficiently serve the plaintiffs' purpose. It is not necessary to go across those boundaries for the purpose of giving effect to the said decree. The second complication, envisaged by the learned Subordinate Judge, does not also, therefore, arise in the present case.

13. In the third place, the learned Subordinate Judge felt that he would have no jurisdiction to grant an injunction, unless he was in a position to set aside the decree itself. As we have stated above, no question of setting aside the decree arises in this case, but, even if the first prayer in the plaint was or had been to that effect, even then the other prayer for injunction could not be disallowed merely on the ground that the said first prayer could not be granted by the Court. Indeed, as held by this Court in the two cases, referred to above, namely, 27 Cal WN 359: (AIR 1923 Cal 425) and : AIR1957Cal317 , the Court, even though it may not be competent to set aside the impugned decree, may yet grant the injunction on a finding or declaration that it is not binding on the plaintiffs. The same or a similar view also appears to have been taken in the earlier case of 5 Cal WN 559, also cited hereinbefore.

14. The reasons, given by the learned Subordinate Judge, do not, therefore, apply to the facts of the case before us and his conclusion, based on the same, cannot, as we have said above, be supported and so it must be reversed. The plaintiffs' suit is maintainable in the Court of the learned Subordinate Judge of West Dinajpur and cannot be thrown out by that Court in limine on the preliminary ground of its lack of jurisdiction to entertain and try the same.

15. In the result then, we allow this appeal, set aside the decree of the learned Subordinate Judge and send back the case to him to be dealt with and decided in accordance with law, in the light of our observations made above.

16. Costs of this appeal will abide the final result of the suit.

Law, J.

17. I agree.


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