Calcutta High Court (Appellete Side)
Md. Yousuf And Others vs Sk. Muluk Chand on 19 August, 2021
AD. 155.
August 19, 2021.
MNS.
C. O. No. 3902 of 2006
(Via video conference)
Md. Yousuf and others
Vs.
Sk. Muluk Chand
Mr. Sabir Ahmed,
Mr. Shraman Sarkar
... for the petitioners.
Ms. Rita Patra
...for the opposite party.
Affidavit-of-service filed in Court today be
taken on record.
Heard both sides.
The present revisional application has
been filed against an order, whereby the
appellate court dismissed the petitioners'
application under Order XXIII Rule 1 of the Code
of Civil Procedure for withdrawing the suit at the
appellate stage with leave to file a fresh suit on
the same cause of action.
The appellate court, in the impugned
order, categorically referred to the findings of the
trial court and came to the conclusion that the suit
was dismissed by the trial court on several
grounds, over and above the ground that it was
not maintainable in law. As such, the appellate
court refused the prayer of the petitioners.
Learned counsel for the petitioners
contends that the appellate court has ample
power to look into the erroneous findings of the
trial court under Section 107 of the Code of Civil
Procedure. That apart, is it argued that since the
suit was dismissed primarily on the ground of
maintainability, the findings of the trial court would
not otherwise operate as res judicata and, as
such, there was no bar on the appellate court
allowing the application of the petitioners.
Learned counsel appearing for the
opposite party contends that the trial court did not
dismiss the suit merely on technical grounds or
on the ground of non-maintainability, but also
entered into the merits of the case and, as such,
the appellate court was justified in rejecting the
prayer of the petitioners at this belated stage.
It is seen from the trial court's judgment, a
copy of which is handed over in Court today,
which is kept on record, that the trial court,
although arriving at the finding that the suit was
being dismissed on the ground of maintainability,
touched on the merits of the case and also came
to certain findings regarding there being no cause
of action for filing of the suit and non-joinder of
necessary parties, apart from making the
observation that the plaintiffs had failed to prove
their case beyond reasonable doubt. The trial
court also reflected upon the evidence, as it
appears from the judgment itself.
Learned counsel for the petitioners is
justified in contending that the appellate court has
ample power to set aside even findings of the trial
court, in the event, the main appeal is
maintainable in so far as the decree went against
the appellants.
In the present case, the trial court might
have gone overboard in entering into the merits of
the case by considering the evidence on record,
despite having held that the suit is not
maintainable. That apart, the test applied by the
trial court, regarding the plaintiffs having failed to
establish their case beyond doubt, is contrary to
the principle of preponderance of probability,
which is the relevant yardstick in civil matters.
However, such questions cannot be adjudicated
upon by this Court within the limited scope of the
present revisional application.
The impugned order was otherwise within
the jurisdiction of the appellate court, since, after
suffering dismissal of their suit, it would not be
appropriate to grant the plaintiffs the liberty to
withdraw the suit with leave to file afresh on the
same cause of action at the appellate stage.
However, it will be open to the plaintiffs-
appellants to canvass the points, as indicated
above in the appeal, for consideration of the
appellate court whether the findings of the trial
court on merits ought to be interfered with by the
appellate court in order to prevent such findings
operating as res judicata subsequently, since the
suit was primarily dismissed on a point of
maintainability.
C. O. No. 3902 of 2006 is disposed of
accordingly, without interfering with the impugned
order, but in the light of the above observations.
There will be no order as to costs.
Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance with the requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
