Calcutta High Court
Dina Nath Parolia & Anr vs Bhartia Steel And Engineering Company ... on 16 January, 2024
Author: I. P. Mukerji
Bench: I. P. Mukerji
IA No. GA 1 of 2022
APOT No. 179 of 2022
with
EOS No. 58 of 1987
IN THE HIGH COURT AT CALCUTTA
In appeal from its
ORDINARY ORIGINAL CIVIL JURISDICTION
CIVIL APPELLATE JURISDICTION
Dina Nath Parolia & Anr.
Versus
Bhartia Steel And Engineering Company Pvt. Ltd.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 16th January 2024
Appearance:
Mr. Debnath Ghosh, Advocate
Mr. Sarosij Dasgupta, Advocate
Ms. Saheli Bose, Advocate
for the appellants
Mr. Utpal Bose, Sr. Advocate
Ms. Madhupriya, Advocate
Mr. Aniruddha Sinha, Advocate
for the respondent
The Court: As these legal proceedings are pending for a
considerable length of time, we do not wish to keep this appeal
pending.
We are disposing of it after admitting it, by this judgment
and order, on dispensing with all formalities.
A suit for eviction involving a property on Dharmatala Road
in Howrah was filed in 1985 in the Howrah Court and tried in this
court on transfer.
On 9th December 2014 a part decree was passed directing
eviction of the appellant. The other part of the decree directed an
inquiry into and award of mesne profits.
The part of the decree directing eviction was affirmed by the
appeal court on 27th July 2017. A Special Leave Petition against that
judgment and decree was dismissed by the Supreme Court.
In other words, an ordinary suit arising out of a lessor-
lessee relationship was finally decreed directing eviction of the
appellant and award of mesne profits as assessed by a Special
Referee.
The bone of contention in this appeal is quite an
extraordinary plea which was raised before the Special Referee by
the appellants. They stated before him that it had come to light that
the suit property had vested in the state government and had
become thika property under the West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 1981 and continued to be so under
the West Bengal Thika Tenancy (Acquisition and Regulation) Act,
2001. Mr. Debnath Ghosh, learned counsel appearing for the
appellants stated that by a document of 2005 he would be able to
prove that the property had so vested. He wanted a direction from
the Special Referee to recall the witness of the respondent before her
and to cross-examine him on that point. It was refused by her.
An application was made before the court complaining of
the decision of the Special Referee which resulted in the impugned
judgment and order dated 7th September 2022 rejecting the prayer
of the appellants.
Learned counsel for the appellants made very forceful
arguments based on K. K. Velusamy vs. N. Palanisamy reported in
(2011) 11 SCC 275. In this case the Supreme Court ruled that the
court had power under Order XVIII Rule 17 read with section 151 of
the Civil Procedure Code to recall a witness and obtain further
evidence from him if the facts of the case so required.
This proposition cannot be doubted by anybody.
Mr. Ghosh citing Sarwan Kumar & Another vs. Madan Lal
Aggarwal reported in (2003) 4 SCC 147 submitted that a decree by a
court inherently lacking in jurisdiction was a nullity. The said
decree was a nullity in the eye of law, since the property had vested
in the State as thika property and the civil court had no power
under the said Act to go into any question regarding such property.
The point could be taken at any time and even at the execution
stage.
The question is whether in the facts and circumstances of
the present case, the prayer in this application should be allowed.
First of all, throughout the carriage of proceedings the
question whether the property was thika or not was not raised at
any stage. On the basis of an ordinary suit between landlord and
tenant or lessor and lessee the suit was entertained, tried and
decreed and the decree affirmed upto the Supreme Court.
There are obstacles in the way of Mr. Debnath Ghosh's
client.
First of all, a decree affirmed upto the stage of the Supreme
can only be reopened by a competent forum and this court in its
appellate jurisdiction is not one of them. It cannot be said that the
suit as framed and prosecuted or the proceedings upto the Supreme
Court were a nullity or that the courts had inherent lack of
jurisdiction, as the thika issue was never raised.
Therefore, the purpose which the appellants seek to achieve
by agitating that the property is thika property and hence the said
decree of the court was a nullity and had no effect on them has little
or no relevance. The appellants would have to first get the decree set
aside or stayed by a competent court before venturing on this line.
At any rate, the issue whether the property is thika or not
under the said act can only be tried and determined by the
Controller. The Special Referee or even this court does not have the
competence to try this issue.
In those circumstances the question whether the appellant
would be allowed to recall the respondent's witness and cross-
examine him is answered in the negative.
Our observations are to be taken as tentative. We leave it
open to the appellants to take an exception to the report of the
Special Referee as and when it is signed and published which shall
be decided by the learned trial judge while awarding mesne profits.
The appeal and the connected application are disposed of
accordingly.
(I. P. MUKERJI, J.)
(BISWAROOP CHOWDHURY, J.)
R. Bose
