Biswanath Paul vs Paresh Nath Paul & Ors
2021 Latest Caselaw 1728 Cal

2    08.03.2021                      F.A.281 of 2016
&
                                          With
3
as                        CAN 1 of 2011(Old CAN 8150 of 2011)
                                          With
                          CAN 7 of 2015 (Old CAN 2345 of 2015)
                                          With
                          CAN 8 of 2019 (Old CAN 4163 of 2019)
                                          With
                          CAN 9 of 2020 (Old CAN 396 of 2020)
                                     Biswanath Paul
                                           Vs.
                                Paresh Nath Paul & Ors.
                                          With
                                    F.A.T.73 of 2021
                                          With
                                      CAN 1 of 2021
                                    Bela Paul & Ors.
                                           Vs.
                                 Smt. Milon Paul & Ors.


                  Mr.   Rabindra Nath Dutta,
                  Mr.   Sibasish Ghosh,
                  Mr.   Hare Krishna Halder,
                  Mr.   Koushik Bhattacharyya.
                                   ...for the Appellant in F.A.281 of 2016
                                  & the respondents in F.A.T.73 of 2021.

Mr. Abhijit Ray.

...for the Respondent Nos.1(b) & 1(c) in F.A.281 of 2016 and Appellants in F.A.T.73 of 2021.

These two appeals are taken up together as

they arise from a common judgement for the

purpose of avoiding of prolixity of repetition of

facts. A suit for partition and separation of shares

is filed by the plaintiffs/respondents alleging that

the property described in the suit originally

belonged to the father of the plaintiffs and the

defendants viz., late Madhusudan Paul and his co-

sharers Gobardhan Paul, Jagabandhu Paul and

Prabhabati Paul having equal shares therein. It is

further stated that the said property was allegedly

partitioned between the then co-sharers amicably

by executing the partition deed on 14th August,

1957 and the property which is described in the

schedule was allotted to the father of the plaintiff

being Madhusudan Paul. Upon the death of the

father, the said property devolved upon the

plaintiffs and the defendants in equal shares. It is

further alleged in the plaint that feeling

inconvenience in continuing with the joint

possession of the said undivided property, the

plaintiff asked for amicable partition and having

refused to agree, the suit for partition is filed.

On the other hand, the defendant no.1

contested the suit and took a plea that the suit is

bad for non-joinder of necessary parties as the

heirs of Jagabandhu Paul and Gobardhan Paul

having acquired right title and interest have not

been impleaded as parties therein. It is further

indicated that the earlier suit filed by the plaintiff

for partition was dismissed on contest on 28th

February, 1989 and there is a gross suppression of

such material fact. A counter claim was filed

seeking partition in respect of the suit property

and the other property alleged by such defendant

to be the joint property. It is not in dispute that in

course of the suit, an application was taken out by

the defendant who filed a counter claim for

impleadment of left out co-sharers and the same

was allowed by the trial court.

However, while taking up of the suit for

passing the preliminary decree, the court noticed

that though the addition was made at the behest

of the defendant who filed the counter claim but

shall not reap to the benefit of the plaintiffs as it is

restricted to the counter claim and not the plaint

filed by the plaintiff. It is further indicated that all

the properties were not included in the plaint by

the plaintiffs though such properties find place in

the counter claim filed by the said defendants. The

trial court proceeded to dismiss the suit holding

that all co-sharers were not impleaded as parties

and all the joint properties were not also included

in the plaint.

Though the counter claim is in the nature

of a cross suit but have been incorporated under

Order VIII Rule 6A of the Code of Civil Procedure to

avoid two separate trials and the same set of

evidence to be recorded by the court. It is to

minimise the litigation and to provide a speedy

remedy to the parties. Though the provision of the

plaint applies to counter claim as well but it is a

nexus to the suit and, therefore, one has to

understand the concept of the counter claim in the

perspective of the disputes between the parties. If

the addition has been allowed at the behest of

either of the parties to the proceeding, such

addition in fact is made in the proceeding itself

and cannot be restricted either to a counter claim

or the plaint as the case may be.

The object behind the incorporation of

order VIII Rule 6A of the Code of Civil Procedure by

an amendment of the Code of Civil Procedure

despite having included the provision relating to

set off was that the party should not be compelled

to redress his remedy against the plaintiff in a

separate suit but if the cause of action or the

property being the subject matter of suit is

intertwined therein, the same can be conveniently

decided in one proceeding.

In view of the above, we do not feel that it

was proper on the part of the court to dismiss the

counter claim as well as the suit for non-joinder of

necessary parties. However, in course of hearing of

these appeals, application for amendment has

been taken out by the defendant/appellant seeking

to incorporate a property which was not included

in the suit itself. Since we have decided to set

aside the judgment and decree passed in both the

suit as well as the counter claim, we feel that an

opportunity must be given to the parties to make

an application for amendment before the trial

court. We thus grant liberty to the parties to file an

application before the trial court within two weeks

from date and if such application is filed, the trial

court shall dispose of the same within four weeks

from date after affording an opportunity of hearing

to the parties.

We have not gone into the merit or demerit

of the application for injunction filed before us and

if the defendant/appellant still intends to pursue

the said application, liberty is granted to them to

file an application for injunction before the trial

court within the time as indicated hereinabove and

the trial court should also make endeavour to

dispose of the same within four weeks from date

after giving an opportunity of hearing to the parties

and in accordance with law.

Any observations touching upon the

aforesaid application for which the liberty has been

given shall not have any persuasive impact on the

trial court as the same is required to be decided

independently.

Accordingly, both the appeals and the

connected applications are disposed of.

In view of the findings made hereinabove,

the impugned judgment and decree passed by the

trial court in both the cases are set aside. The suit

as well as the counter claim are restored to its

original file and number and are remitted back to

the trial court to decide the same.

Let the lower court records be sent down

immediately through special messenger at the cost

of the appellant in F.A.281 of 2016. Such cost

shall be deposited in course of this week.

(Harish Tandon, J.)

(Kausik Chanda, J.)