Page No.# 1/7 vs Smt. Dula Bose And 9 Ors
2021 Latest Caselaw 160 Gua

                                                                  Page No.# 1/7

GAHC010017622020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : CRP/10/2020

         SMT. SUDHA KONA GUHA AND 3 ORS
         W/O- LATE BIRENDRA LAL GUHA, R/O- NAGNAHA LANE, SILCHAR TOWN,
         CACHAR, ASSAM.

         2: SMT. JOYA ROY CHOUDHURY
          D/O- LATE BIRENDRA LAL GUHA
         W/O- SRI RONOJ ROY CHOUDHURY
          R/O- NAGNAHA LANE
          SILCHAR TOWN
          CACHAR
         ASSAM.

         3: SRI ASHISH KR. GUHA
          S/O- LATE BIRENDRA LAL GUHA
          R/O- NAGNAHA LANE
          SILCHAR TOWN
          CACHAR
         ASSAM.

         4: SRI BIKASH GUHA
          S/O- LATE BIRENDRA LAL GUHA
          R/O- NAGNAHA LANE
          SILCHAR TOWN
          CACHAR
         ASSAM

         VERSUS

         SMT. DULA BOSE AND 9 ORS
         D/O- LATE NRIPENDRA CH. BOSE, PANCHAYAT ROAD, SILCHAR.

         2:SRI SHYAMAL PAUL
          S/O- LATE BIJAY KR. PAUL
          C/O- SAYAN HOTEL
                                           Page No.# 2/7

NAGNAHA LANE
SILCHAR.

3:SRI ARUP KR. NAHA
 S/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

4:SRI ASHOK KR. NAHA
 S/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

5:SRI ANUP KR. NAHA
 S/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

6:SRI ALOK KR. NAHA
 S/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

7:SRI ARINDAM NAHA
 S/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

8:SMT. MILI NAHA
 D/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

9:SHELI DEY
 D/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
 P.O. AND P.S.- SILCHAR
 DIST.- CACHAR.

10:MOLY GUHA
 D/O- LATE GYANENDRA CH. NAHA
 R/O- ULLASKAR DUTTA SARANI (JAIL ROAD)
                                                                                      Page No.# 3/7

             P.O. AND P.S.- SILCHAR
             DIST.- CACHAR




Advocate for the Petitioner   : MR D CHAKRABORTY

Advocate for the Respondent : MS. S SENAPATI (R 1 & 2)




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                            ORDER

Date : 20.01.2021

Heard Mr. D. Chakraborty, learned counsel for the petitioner. Also heard Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Ms. S. Katakey, learned counsel for the respondents nos. 1 and 2.

2. By this revision under Section 115 (1) CPC, the petitioner has assailed the order dated 10.08.2015 passed by the learned Munsiff No. 1, Cachar, Silchar in connection with petition no. 144/30 dated 08.04.2013 in TS 729/2006, being a petition under Order XII Rule 6 CPC, which was filed by proforma respondent nos.1, 3, 4, 5, 7 and 9. The said respondents are the defendant nos. 1 to 3, 5 and 7 in the suit. In the suit, the petitioners, the plaintiff, had sought for a declaration of right, title and interest over the schedule land, confirmation of possession and declaration that the defendant nos. 1 to 8 had no right, title and interest for possession beyond area specified therein and that the agreement dated 25.09.2000 executed by the said defendants in favour of the defendant no. 9 was illegal and did not convey any right or authority in favour of the defendant no. 6 and the subsequent sale of room by defendant no.

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9 within the building raised on Dag no. 6692 did not attract the schedule land, permanent injunction and other reliefs.

3. It is submitted at the Bar by the learned counsel for the petitioner that the defendant nos. 1 to 8 did not contested the suit and did not file their written statement. However, they had filed the said petition no. 144/30 on 08.04.2013 seeking decree on admission.

4. On contest by the defendant nos. 9 and 10, the matter was heard and the learned Munsiff no. 1, Cachar, Silchar by order dated 08.10.2015, rejected the said petition, amongst others, by arriving at a conclusion that the defendant nos. 9 and 10 had also claimed acquiring of interest over the suit land on the strength of the sale deed referred therein.

5. The learned counsel for the petitioner submits that as the defendant nos. 1 to 8 have admitted the right of the plaintiffs, there was no impediment for the learned trial Court to decree the suit insofar as the said defendants are concerned. It is submitted that the said defendants had clearly admitted that their interest is in a land to the north of the schedule land and that schedule land was not the land for which the agreement was made.

6. The learned Senior Counsel for the respondent nos. 1 and 2, being the defendant nos. 9 and 10 in the suit has submitted that the plaintiffs are claiming their right jointly and severally, against the defendant nos. 1 to 8. However, while defendant no. 6 had died long back, the defendant no. 8 had died on 23.02.2011 and as they were not substituted, the suit has abetted. He further submits in support of the order impugned herein on the ground that without deciding the validity of the agreement dated 25.09.2000 executed by the defendant nos. 1 to 8 in favour of defendant no. 9 (respondent no.1), the suit cannot be decreed in part.

7. On a pointed query of the Court about the status of the suit, the learned counsel for the petitioner has submitted that the plaintiffs have filed an application before the learned Page No.# 5/7

trial Court under Order XXIII Rule 1 sub-rule (3) (a) (b) read with Section 151 CPC for leave to withdraw the suit and to institute a fresh suit. In this connection, the learned Senior Counsel for the respondents has referred to the said petition annexed as Annexure-A to his affidavit-in-opposition.

8. It is seen that the defendant nos. 1 to 8 have not filed their written statement, as submitted by the learned counsel for the petitioner. Therefore, in the proceedings of the suit, there is no pleading regarding "admission". As per provisions of Rule 6 of Order XII of CPC, it is provided that where admission of fact have been made either in the pleading or otherwise whether orally or in writing, the Court may at any stage of the suit, either of the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. Therefore, it is apparent that the admission of fact must have been made either in the pleading or otherwise. Applying the principle of ejusdem generis, the general word "otherwise" has to be read in consonance with the preceding word, i.e. "pleadings". The provisions of Order VI Rule 1 of the Code of Civil Procedure defines pleading as- "pleading" shall mean plaint or written statement. As per the provisions of Section 141 CPC, it is provided that the procedure provide in the Code with regard to the suit shall be followed so far it can be made applicable, in all proceedings in any court of civil jurisdiction. Yet, by applying the provisions Section 141 CPC, a petition cannot be treated at par with the definition of pleading as defined in the Rule 1 or Order VI of the CPC. The provision of Section 141 of the CPC is merely with regard to procedure to be followed and does not alter the status of a 'petition' to that of a 'plaint'. Therefore, the petition no. 144/30 dated 08.04.2013, even if taken note of, the contents thereof is not acceptable to be a pleading within the meaning of Rule 1 Order VI of the CPC. Therefore, the suit could not have been decreed on admission when the defendant nos. 1 to 8, who had filed the said petition have not even submitted any pleadings.

9. Having taken note of the petition filed by the petitioner-plaintiff under Order XXIII Rule 1 sub-rule (3) (a) and (b) CPC for withdrawal of the suit, the present revision application can Page No.# 6/7

be said to be vexatious proceedings, intended to delay the trial. The application filed for withdrawal of the suit itself indicates that the petitioner is well aware that there are defects in the suit. Therefore, when there was no admission on part of the defendant nos. 9 and 10 (respondent no. 1 and 2), there is escape from the point that the suit cannot be decreed against the defendant nos. 9 and 10. The learned counsel for the petitioner has not been able to demonstrate before this Court from any authority on the point that a suit can be decreed twice in respect of determination of right, title and interest to defendant nos. 1 to 8 and subsequently, it is permissible for adjudication of the right, title and interest of other co- defendant nos. 9 and 10. On that count also this application fails. Admittedly, the petitioners had not applied for decree of the suit on admission. Therefore, they cannot be said to be an aggrieved party. In this revision, the said defendant nos. 1 to 8 have not filed their affidavit to support the petitioners. Therefore, the said defendant nos. 1 to 8 have allowed the impugned order to attain finality.

10. On perusal of the impugned order, the Court does not find the said order to be vitiated by any jurisdictional error. The learned court below did not fail to consider any factual aspect or that the legal provisions were wrongly appreciated. Hence, the said order is not vitiated by any jurisdictional error. The petitioners have not been able to show that the learned Court below had exercised a jurisdiction not vested in it, or have acted in exercise of its jurisdiction illegally or with material irregularity. Hence, no case is made out for interference with the impugned order in exercise of power under Section 115 CPC.

11. Having noticed from the submission made by the learned Senior Counsel for the respondent nos. 1 and 2 that the defendant nos. 6 and 8 have expired and there has been no substitution, the trial Court is required to take note of the same.

12. This revision stands dismissed.

13. Having filed a vexatious petition, the Court is inclined to impose a cost of Rs.5,000/- on Page No.# 7/7

the petitioners and in favour of the defendant nos. 9 and 10, which shall be deposited before the learned trial Court within a period of 6(six) weeks from today failing which, it would be open to the learned trial Court to include this cost in the decree.

JUDGE

Comparing Assistant