Sambhunath Ghosh and ors. Vs. Maniklal Gander and ors. - Court Judgment

Excerpt:

[d.y. chandrachud; anoop v. mohta; roshan dalvi, jj.] - constitution of india - articles 226, 227, 32; bombay industrial relations act, 1946 - section 78; code of civil procedure, 1908 (cpc) - section 115; bombay high court original side rules, 1957 - power of high courts to issue certain writs -- in an appeal by the employer, the industrial court set aside the order of the labour court. in a challenge by the workman to the order of the industrial court, in a petition which invoked articles 226 and 227 of the constitution, a learned single judge of this court delivered judgment which was questioned in a letters patent appeal. writ jurisdiction under article 226 can be exercised for that purpose. is it a correct proposition of law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate courts/tribunals can only be corrected by this court in exercise of powers under article 227 of the constitution of india. certiorari: the power of the high court to issue a writ of certiorari, among other writs, is preserved and recognized by article 226 of the constitution. justice sarkar rejected the argument that high courts were inferior courts as..........application under order 22 rule 9 has been filed for substitution of the other heirs of the deceased, defendant no.6.4. on realising the above such facts, the applicants have come up with the application under order 1 rule 10(2) of the c.p.c., inter alia, to avoid hazards of the procedure under order 22 rule 4 or under order 22 rule 9 of the c.p.c. what cannot be done directly, cannot also be done indirectly. on realising that no such application for substitution has been filed, the applicants have come up with such a prayer for addition of parties after a lapse of more than two years. the learned trial judge has rightly observed that such a recourse has been adopted to avoid the limitation, that is, applicable for substitution of the heirs of the deceased defendant. he has rightly commented that if the prayer is allowed, then the limitation imposed by the statute would be meaningless. so, he has rightly rejected the application.5. so, there is nothing to interfere with the impugned order. this application is dismissed.6. considering the circumstances, there will be no order as to costs.7. urgent xerox certified copy of this order, if applied for, be supplied to the learned.....

Judgment:

1. Challenge is to the order no.10 dated February 17, 2006 passed by the learned Additional District Judge, Sixth Court, Howrah in Title Suit No.103 of 1995 thereby rejecting an application under Order 1 Rule 10(2) of the C.P.C. The plaintiff/opposite party herein instituted a suit being Title Suit No.103 of 1995 for a decree of declaration that the plaintiff has a right as sebait in respect of the suit property as per terms of the Arpannama dated May 5, 1972 and for permanent injunction restraining the defendants from invading upon and interfering with the rights and possession of the plaintiff in respect of the suit property. In that suit, Smt. Chhaya Rani Ghosh was the defendant no.6 and she is the mother of the plaintiff, Joydeb Ghosh. Subsequently, Chhaya Rani Ghosh died and the plaintiff did not take any steps for substitution. Long time thereafter, the heirs of Chhaya Rani Ghosh filed an application under Order 1 Rule 10(2) of the C.P.C. for adding as parties in the suit. That application of the applicants was rejected by the impugned order. Being aggrieved, this application has been preferred.

2. Now, the point for decision is whether the impugned order should be sustained.

3. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff was very much aware of the death of his mother and so, the plaintiff could have taken appropriate steps for substitution of the heirs of the deceased defendant no.6. As per materials on record, the mother of the plaintiff died on September 15, 1997. The plaintiff described the defendant no.6 as proforma defendant and thus, he did not seek any relief against the defendant no.6. For that reason, it is contended before me that since the son of the plaintiff is already in the record, the suit cannot abate and when the plaintiff did not take steps for substitution, the applicants are within their right to file the application for addition of parties under Order 1 Rule 10(2) of the C.P.C. That application for substitution was filed on December 21, 1999, that is, after more that two years from the date of death. Even no steps for setting aside abatement or any application under Order 22 Rule 9 has been filed for substitution of the other heirs of the deceased, defendant no.6.

4. On realising the above such facts, the applicants have come up with the application under Order 1 Rule 10(2) of the C.P.C., inter alia, to avoid hazards of the procedure under Order 22 Rule 4 or under Order 22 Rule 9 of the C.P.C. What cannot be done directly, cannot also be done indirectly. On realising that no such application for substitution has been filed, the applicants have come up with such a prayer for addition of parties after a lapse of more than two years. The learned Trial Judge has rightly observed that such a recourse has been adopted to avoid the limitation, that is, applicable for substitution of the heirs of the deceased defendant. He has rightly commented that if the prayer is allowed, then the limitation imposed by the statute would be meaningless. So, he has rightly rejected the application.

5. So, there is nothing to interfere with the impugned order. This application is dismissed.

6. Considering the circumstances, there will be no order as to costs.

7. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.