Sri Basudev Ghosh & Others vs Sri Gopinath Ghosh & Others
2022 Latest Caselaw 8082 Cal

06.12.2022
 Court No.32
  rpan/02


                                FAT 74 of 2022
                                       +
                             IA No.: CAN 1 of 2022
                                       +
                            IA No.: CAN 2 of 2022
                                       +
                             IA No.: CAN 3 of 2022
                                       +
                             IA No.: CAN 4 of 2022

                         Sri Basudev Ghosh & Others
                                  - Versus -
                         Sri Gopinath Ghosh & Others


                     Mr. Probal Mukherjee,
                     Mr. Sanjib Seth,
                     Mr. Susenjit Banik
                                  ... for the Applicants/Appellants.
                     Mr. Sukumar Bhattacharya,
                     Mr. Subhasis Chakraborty,
                     Ms. Oindrila Chatterjee,
                     Ms. Swaralipi Sarkar
                                  ... for the Respondent Nos.1, 12 & 36.

Mr. Buddhadeb Ghoshal, Ms. Souri Ghosal, Mr. Prabhat Kr. Singh ... for the Respondent no.13.

The applicants have preferred the application being

CAN 2 of 2022 praying for leave to prefer appeal against

the preliminary judgment and decree dated 24 th January,

2019 passed by the learned Civil Judge (Senior Division),

3rd Court at Howrah, District - Howrah in a partition suit

being T.S. No.39 of 1988. Along with the said application,

the applicants have filed an application for condonation

of delay being CAN 1 of 2022, an application for stay

being CAN 3 of 2022 and an application for substitution

being CAN 4 of 2022.

Mr. Probal Mukherjee, learned advocate appearing

for the applicants submits that the learned Court passed

the preliminary decree failing to appreciate the provisions

of the Hindu Succession Act, 1956 (in short, Act of 1956),

as amended in the year 2005. According to him, the

term 'property' as referred to in Section 14 of the Act of

1956 has been explained to include immovable property

of a female Hindu acquired in lieu of maintenance and

accordingly she had a right to claim partition. In view

thereof, the plaintiffs consciously impleaded Hingurbala

(hereinafter referred to as Hingur), widow of Basanta

Kumar Ghosh (hereinafter referred to as Basanta), as a

defendant in the said suit filed in the year 1988,

categorically stating inter alia in paragraph 3 of the plaint

that Hingur, on the death of her husband 'inherited his

undivided 1/3rd share of suit property in limited interest

and right of Hindu widow, which has become absolute in

respect of her aforesaid share of suit property on

enforcement of Hindu Succession Act'.

He argues that the revision application challenging

the order dated 7th August, 2007 was dismissed for

default. There was, thus, no decision on merits. The

order dated 7th August, 2007 was passed being oblivious

of the fact that Tarulata was brought on record upon

allowing an application for substitution and that upon

her demise, her heirs being the applicants earned a right

to be substituted but as no substitution application was

filed on behalf of the plaintiffs, the appellants filed an

application under Order 1 Rule10 (2) of the Code. The

order dated 7th August, 2007 was, thus, erroneous and

the same can be challenged in the present appeal

preferred against the preliminary decree. The applicants

are, thus, entitled to prefer the present appeal. In

support of such contention, he has placed reliance upon

the provisions of Section 105 of the Code.

Mr. Ghoshal, learned advocate appearing for the

respondent no.13 submits that the rule of Hindu law

prevalent when Basanta expired in the year 1935

deprived Hingur of any right in the properties of Basanta.

The provisions of the Hindu Women's Rights to Property

Act, 1937 (in short, Act of 1937) had no manner of

application in the lis since Basanta died intestate prior to

commencement of the said Act of 1937. Section 14 of the

said Act of 1956 would apply to property possessed by

Hindu family to which she had some kind of title. In view

thereof, the applicants being the heirs of Tarulata have

earned no right to prefer appeal against the preliminary

decree. In support of such contention reliance has been

placed upon the judgment delivered in the case of Suraj

Mal and Others -vs- Babu Lal and Another, reported in

AIR 1985 Delhi 95.

Mr. Ghoshal submits that the principles of res

judicata can be invoked in separate subsequent

proceedings and also applies in different stages in the

same proceedings. The revision application preferred

against the same having been dismissed, the issue has

attained finality moreso when the said order had merged

with the preliminary decree passed on 7th August, 2007.

Thus, the lis pertaining to the claim of the applicants in

the properties had attained finality and cannot be

reopened. In support of such contention reliance has

been placed upon the judgments delivered in the cases of

Bhanu Kumar jain -vs- Archana Kumar & Anr., reported

in AIR 2005 SC 626, Satyadhyan Ghosal and Ors. -vs-

Deorajin Debi and Ors., reported in AIR 1960 SC 941 and

in the case of Shri Sudhendu Nath Banerjee & Ors. -vs-

Bibhuti Chandra Chakraborty & Ors., reported in 1990 (2)

CHN 9.

Drawing our attention to the averments made in

the application being CAN 1 of 2022, Mr. Bhattacharya,

learned advocate appearing for the respondent nos.1, 12

and 36 submits that the applicants have filed the present

application about 15 years after the applicants' prayer for

addition was rejected on 7th August, 2007. It is the

contention of the applicants that their learned advocate

in the Court below was one Sanjib Seth and on his advice

the applicants engaged one Tarit Kumar Bhattacharya,

learned advocate to file the revision application. It has

been alleged by the appellants that they lost contact with

Mr. Bhattacharya since the month of June, 2013 and

that in the month of December, 2018, with the help of

Mr. Sanjib Seth, they came to learn that the revision

application has been dismissed on 16 th September, 2013.

By the time the present application could be filed upon

obtaining certified copy of the order of dismissal, the

preliminary decree was passed on 24 th January, 2019.

Such explanation given is absolutely unacceptable. The

applicants filed the revision application in the year 2007

and took no steps. The delay is totally attributable to the

appellants and such delay is intentional and malafide.

Upon misrepresenting the actual facts, the appellants

have approached this Court and such conduct disentitles

them to the relief as prayed for.

Mr. Bhattacharya further argues that as no period

of limitation has been prescribed for filing an application

for leave to appeal, an application under Section 5 of the

Limitation Act ought to have been filed in connection with

the application for leave to appeal since a period of three

years had expired prior to filing the application for leave

to appeal. The said application is, thus, barred by law in

view of the provisions of Article 137 of the Limitation Act.

In reply, Mr. Mukherjee submits that there had

been no delay of three years, as alleged by Mr.

Bhattacharya, since the preliminary decree was passed

on 24th January, 2019 and the application for leave to

appeal was filed on 24th March, 2022. The period of delay

stood intervened by a period lost due to pandemics. In

view of the judgment delivered by the Hon'ble Supreme

Court, the period from 15th March, 2020 till 28th

February, 2022 stood excluded and would not count

towards limitation. As such, there had been no delay in

preferring the application for leave to appeal.

Heard the learned advocates appearing for the

respective parties and considered the materials on

record.

While granting leave to prefer appeal against the

preliminary decree it needs to be ascertained as to

whether there exists a prima facie case and as to whether

the denial of such relief would cause irreparable loss and

injury to the applicants which cannot be compensated by

payment of money. In the backdrop of the admitted fact

that the plaintiffs themselves impleaded Hingur as a

defendant in the suit for partition, the issue as to

whether Hingur acquired right over the concerned

properties in lieu of maintenance needs to be decided

finally. The schedule of the amendment application

reveals that the prayer was for deletion of the defendant

nos. 9 and 11. In spite of being conscious about the

averments made in support of Hingur in paragraph 4 of

the plaint, no averment was made in the amendment

application for deletion of such pleading.

The order passed in the revision application is an

order of dismissal for default. The learned advocate

engaged by the applicants failed to appear before the

Court. The said decision is not on merits of the

controversy in issue.

In the said conspectus, we are of the opinion that

an arguable case has been made out by the applicants.

We are also satisfied with the explanation given towards

the delay that had occurred.

Accordingly, the application for leave to appeal is

allowed upon condoning the delay.

It is made clear that the observations made in this

order granting the prayer for leave to appeal shall have

no effect while deciding the appeal finally.

The applications being CAN 1 of 2022 and CAN 2 of

2022 are disposed of.

We have been informed that an application has

already been filed for appointment of a Commissioner of

partition. The learned Court below shall be at liberty to

hear out and dispose of the said application. In the event

the said application is allowed and the Commissioner of

partition is appointed, the commission proceeding shall

continue, however, no final decree shall be passed till the

disposal of the appeal. The aforesaid order is being

passed to avoid multiplicity of judicial proceedings.

The application for stay being CAN 3 of 2022 is,

accordingly, disposed of.

The application being CAN 4 of 2022 is an

application for substitution of the legal heirs of the

respondent no.4, namely, Samir Ghosh, who expired on

24th October, 2022 leaving behind his legal heirs, as

detailed in paragraph 2 of the application. The legal

heirs of Samir Ghosh are his wife, namely, Mousumi

Ghosh and one minor son, namely, Souvik Ghosh.

Upon hearing the learned advocates and

considering the averments made in the application we

direct that Mousumi Ghosh and Souvik Ghosh be

substituted in place and stead of Samir Ghosh and

Mousumi Ghosh would represent her minor son, namely,

Souvik Ghosh.

Office is directed to effect necessary correction in

the cause title of the memorandum of appeal.

The application being CAN 4 of 2022 is,

accordingly, disposed of.

Let the hearing of the appeal be expedited.

As Mr. Chakraborty, learned advocate, has entered

appearance on behalf of the respondent nos. 1, 12 and

36 and as Mr. Singh, learned advocate has entered

appearance on behalf of the respondent no.13, service of

notice of appeal upon the said respondents is dispensed

with.

The applicants/appellants are directed to put in

the requisites within two weeks for service of notice of

appeal upon all the respondents except the respondent

nos.1, 12, 13 and 36.

Lower court records be called for through Special

Messenger at the cost of the appellants. Such cost shall

be deposited by the appellants within two weeks.

Immediately, after arrival of lower court records,

the office shall examine the same and, if found complete,

shall issue notice of arrival of lower court records to the

learned advocate appearing for the appellants.

Appellants are directed to prepare requisite

number of informal paper books - printed, typewritten or

cyclostyled, as the case may be, out of Court and file the

same, within four weeks from the date of service of notice

of arrival of lower court records.

All formalities regarding preparation of paper books

are dispensed with but the learned advocate for the

appellants are directed to incorporate all the relevant

documents in the informal paper books.

Liberty to mention.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties, as expeditiously as

possible, upon compliance with the necessary formalities

in this regard.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)