Nirmal Mondal & Ors vs Sri Utpalendu Mondal & Ors
2023 Latest Caselaw 4758 Cal

S/L 18
04.08.2023
Court. No. 29
Suvayan
                             CO 2034 of 2022

                           Nirmal Mondal & Ors.
                                   Vs.
                       Sri Utpalendu Mondal & Ors.

                Mr. Sounak Bhattacharyya
                Mr. Chandra Nath Sarkar
                Mr. Sounak Mandal
                Mr. Abhirup Haldar
                Mr. Anirban Saha Roy
                Mr. Pradipta Sen
                                                       ...for the petitioners.

                Mr. Gobinda Chandra Baidya
                                                 ...for the opposite parties.

                1.

Both the petitioners and the opposite parties are

represented by their respective learned Advocates.

2. Heard learned Advocates for the parties at length.

3. The instant revisional application as filed under

Article 227 of the Constitution of India is now taken up

for passing appropriate order.

4. In this revisional application the defendants of

Title Suit No. 16965 of 2012 as pending before the learned

Civil Judge (Senior Division), 9th Court at Alipore has

assailed the said Court's order dated 20.06.2022 as

passed in said suit whereby and whereunder the

defendants' application under Order 14 Rule 2 read with

Sections 11 and 151 of the Code of Civil Procedure dated

20.06.2014 (hereinafter referred to as the 'said

application') as filed by the defendant No. 1 was rejected

on contest with cost of Rs. 7,000/- to be paid by the

defendant No. 1 to the plaintiffs. The defendants of the

said suit felt aggrieved and, thus, preferred the instant

revisional application.

5. In support of the instant revisional application,

learned Advocate for the defendants/petitioners at the

very outset draws attention of this Court to the plaint as

filed in Title Suit No. 16965 of 2012 vis a vis the copy of

the said application which was turned down by the

learned Trial Court by the impugned order. It is

contended on behalf of the defendants/revisionists that

on comparative study of the schedule of the plaint of Title

Suit No. 16965 of 2012 and schedule of Title Suit No. 80

of 1966 which has been mentioned in page No. 3 of the

said application, it would reveal that both the schedules

are identical. It is further contended on behalf of the

defendants/petitions that the parties of Title Suit No.

16965 of 2012 as well as parties of Title Suit No. 80 of

1966 are either almost identical or they are litigating

under same title. It is further contended on behalf of the

revisionists/defendants that while passing the impugned

order learned Trial Court has not only failed to visualise

the similarity of the subject matter of the two suits as well

as the parties to the said two suits or the parties litigating

under the same title but also came to a wrong finding that

provision of Section 11 of the Code of Civil Procedure has

got no application in respect of a previous suit between

the same parties and in respect of the self-same subject if

the earlier suit has been decreed on compromise.

6. Mr. Bhattacharyya in support of his contention

places his reliance upon two reported decisions, viz.,

Rama Narang vs. Ramesh Narang and Another

reported in (2006) 11 Supreme Court Cases 114 and

Shankar Sitaram Sontakke and Another vs.

Balkrishna Sitaram Sontakke and others reported

in (1954) AIR (SC) 352.

7. It is contended by Mr. Bhattacharyya that in the

aforesaid two reported decisions, the Hon'ble Apex Court

has made it clear that a compromise decree is also a

decree unless such compromise decree is set aside by

invoking the provisions of Order 23 Rule 3 of the Code of

Civil Procedure and, therefore, under no stretch of

imagination it can be said that the compromise decree as

passed in Title Suit No. 80 of 1966 on July 29, 1969 ought

not to be construed as a decree for coming to a logical

finding while applying the provision of Section 11 of the

Code of Civil Procedure. It is further contended on behalf

of the revisionists/defendants that the reported decision

of Pulavarathi Venkata Subba Rao vs. Valluri

Jagannadha Rao & Ors. reported in AIR 1967 SC

591 as relied upon by the learned Trial Court while

passing the impugned order has not been considered by

the Hon'ble Apex Court in the reported decision of Rama

Narang (Supra) which has been passed by a co-

ordinate Bench of similar strength of the Hon'ble

Supreme Court.

8. It is contended further by Mr. Bhattacharya that

since the reported decisions of P.V. Subba Rao

(Supra) and Rama Narang (Supra) are contrary, the

learned Trial Court ought to have followed the judgment

which appears to the Court to state the law accurately or

more accurately than the other conflicting judgment, in

view of the reported decision of Bholanath Karmakar

vs. Madan Mohan Karmakar & Ors. reported in

AIR 1988 CAL 1.

9. It is, thus, contended that this is a fit case for

allowing the instant revisinal application as also the said

application as filed before the learned Trial Court by the

defendant No. 1 of the said suit.

10. Per contra, Mr. Baidya, learned Advocate for the

plaintiffs/opposite parties at the very outset draws

attention of this Court to the written objection as filed by

his clients before the learned Trial Court against the said

application. Attention of this Court is also drawn to the

photocopy of the written statement as filed in Title Suit

No. 80 of 1966, photocopy of the compromise decree as

arrived at in Title Suit No. 80 of 1966 and the copy of the

plaint as filed in Title Suit No. 16965 of 2012 before the

learned Trial Court. It is contended by Mr. Baidya that

though there lies similarity in the schedule of the

properties as involved in the Title Suit No. 16965 of 2012

and Title Suit No. 80 of 1966 but it cannot be said that the

parties in Title Suit No. 80 of 1966 and the parties in the

subsequent suit being Title Suit No. 16965 of 2012 are

either same or litigating under the same title. It is further

contended by Mr. Baidya that though in the written

objection as filed by the plaintiffs it is was specifically

averred that plaintiffs' predecessor in interest was not

made party in the earlier suit but learned Trial court while

passing the impugned order has wrongly recorded that

the plaintiffs of the present suit have been made parties in

earlier suit.

11. Drawing further attention of this Court to the

plaint as filed in Title Suit No. 16965 of 2012 and to the

plaint as filed in Title Suit No. 80 of 1966 it is contended

by Mr. Baidya that plaintiffs/opposite parties' predecessor

in interest, namely, Atul Krishna Mondal, since deceased

purchased a portion of the schedule mentioned property

on 08.05.1966 from one Mahendra Nath Mondal and the

earlier suit being Title Suit No. 80 of 1966 was filed on

29.08.1966. It is, thus, contended by Mr. Baidya that

since Title Suit No. 80 of 1966 was filed later to the

purchase of the portion of the schedule mentioned

property and since the said Atul Krishna Mondal being

the predecessor in interest of the present

plaintiffs/opposite parties had not been made parties in

Title Suit No. 80 of 1966, it cannot be said that the

plaintiffs' predecessor in interest have been made party in

Title Suit No. 80 of 1966 basically on an analogy that Atul

Krishna Mondal's vendor Mahendra Nath Mondal was a

party in Title Suit No. 80 of 1966.

12. On perusal of the certified copy of the impugned

order, this Court finds that the learned Trial Court while

passing the impugned order has come to a wrong finding

at least prima facie that the plaintiffs and/or their

predecessor in interest was made party in the earlier suit

and thereafter proceeded to dispose of the said

application in a completely different perspective which in

considered view of this Court is not correct.

13. In view of such wrong finding as recorded by the

learned Trial Court in the impugned order this Court

considers that the impugned order is required to be set

aside and learned Trial Court be directed to hear out the

said application afresh keeping all the points open to be

taken by the parties to T.S. No. 16965 of 2012.

14. In view of the discussion made hereinabove, the

impugned order dated 20.06.2022 as passed by the

learned Civil Judge (Senior Division), 9th Court at Alipore

in Title Suit No. 16965 of 2012 is hereby set aside.

Learned Trial is hereby directed to rehear the defendant

No. 1's application as filed under Order 14 Rule 2 read

with Sections 11 and 151 of the Code of Civil Procedure

afresh.

15. Considering the fact that in the written objection as

filed by the plaintiffs in Title Suit No. 16965 of 2012 there

occurred several typographical errors, this Court grants

liberty to the plaintiffs of the said suit to amend the

written objection for removal of the said typographical

errors only so as to enable the learned Trial Court to

arrive at a logical conclusion in respect of the said

application.

16. Learned Trial Court is hereby directed to dispose of

the said application under Order 14 Rule 2 read with

Sections 11 and 151 of the Code of Civil Procedure

positively within a period of 60 days from the date of

communication of this order.

17. With the aforementioned observation, the

revisional application being CO 2034 of 2022 is disposed

of.

18. Parties and learned Trial court are to act on the

server copies of this order.

19. Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Partha Sarathi Sen, J.)