Pasupati Dutta Vs. Smt. Kalpana Dutta and Ors. - Court Judgment

G.A.No.109 of 2015 C.S.No.521 of 1992 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Pasupati Dutta versus Smt.

Kalpana Dutta & ORS.For the Plaintiff : MRS.Suparna Mukherjee, Advocate Mr.Amit Chatterjee, Advocate For the Defendants : Mr.H.Banerjee, Advocate Mr.S.Ray, Advocate Mr.Nayeemuddin Munshi, Advocate Mr.A.Chakraborty, Advocate Mr.A.Chowdhury, Advocate Mr.Animul Haque, Advocate Mr.Abul Mansoor, Advocate Hearing Concluded on : May 06, 2015 Judgment on : May 13, 2015 DEBANGSU BASAK, J.

A preliminary decree dated July 24, 2014 has been passed in the present suit for partition.

The plaintiff has applied for modification of such preliminary decree primarily on two grounds.

The fiRs.ground being that the learned Counsel for the plaintiff was not heard on July 4, 2014 when the hearing of the suit was concluded.

The second ground being that the dwelling house at Premises No.21, Girish Avenue, Kolkata- 700003 should be attempted to be partitioned by metes and bounds in accordance with the scheme proposed.

In support of the contention that the preliminary decree dated July 24, 2014 could be modified, learned Counsel for the plaintiff relies upon 75 Calcutta Weekly Notes page 416 (Steel & Allied Products Ltd.v.Gerbueder Bohlar & Co.).Referring to the scheme for partition submitted by way of an affidavit affirmed on behalf of the plaintiff on April 6, 2015, it is submitted that a Valuer may be appointed so as to find out the total area of the premises concerned floor wise and the value of the property so that the modality of the partition as suggested could be worked out.

The application is opposed by the defendant Nos.1A and 1B as well as the defendant No.2.

On behalf of the defendant Nos.1A and 1B it is submitted that, the preliminary decree has attained finality.

The same could only be modified by review under the provisions of Order 47 Rule 1 of the Code of Civil Procedure, 1908.

The present application is not one for review of the decree.

In any event no ground for review exists.

The same could also be modified by a procedure recognized by the Code of Civil Procedure, 1908.

Section 151 of the Code is not available to the petitioner.

Moreover, the preliminary decree dated July 24, 2014 and the present application has been made on January 8, 2015.

The application therefore is barred by limitation.

So far as the ground of the learned Counsel for the plaintiff not being heard on July 4, 2014 is concerned, it is submitted that the suit had been heard on diveRs.dates.

On July 4, 2014 the learned Counsel for the plaintiff did not appear during the entire period when the suit was heard.

Since the learned Counsel for the plaintiff did not appear on July 4, 2014 for professional reasons the question of recalling the decree on such ground does not arise.

Engagement of the learned Counsel for the plaintiff in another Court is no ground for recall the decree.

Relying upon All India Reporter 1963 Supreme Court page 992 (Venkata Reddy & Ors.v.Pethi Reddy) it is submitted that, the preliminary decree dated July 24, 2014 has attained finality between the parties.

It could be modified and/or reviewed under the provisions of the Code of Civil Procedure, 1908.

The present application does not fit any of the provisions of the Code of Civil Procedure, 1908.

On behalf of the defendant No.2 it is submitted that, the preliminary decree dated July 24, 2014 has attained finality between the parties.

It is also contended that the present application is barred by limitation.

In support of the contention that, the preliminary decree has attained finality and should not be modified in the manner sought to be done reliance is placed on All India Reporter 1963 Supreme Court page 992 (Venkata Reddy & Ors.v.Pethi Reddy) and 1995 Volume 5 Supreme Court Cases page 631 (Mool Chand & Ors.v.Dy.

Director, Consolidation & Ors.).It is submitted that Section 151 of the Code of Civil Procedure, 1908 could not invoked to grant the reliefs sought as there are specific provisions in the Code.

In this regard reliance is placed on 2008 Volume 2 Supreme Court Cases page 488 (State of Uttar Pradesh & Ors.v.Roshan Singh & Ors.) and 2005 Volume 2 Supreme Court Cases page 256 (National Institute of Mental Health & Neuro Sciences v.C.Parameshwara).I have considered the rival contentions of the parties and the materials made available on record.

In the present suit a preliminary decree dated July 24, 2014 has been passed.

Such preliminary decree dated July 24, 2014 was passed after hearing all the parties concerned.

Adequate opportunity had been afforded to the plaintiff to participate in the hearing of the instant suit.

As the application narrates the incidents happening with regard to the hearing of the suit, the suit was heard finally on July 4, 2014 when two learned Advocates engaged on behalf of the plaintiff did not appear for the entirety of the period of time when the suit was heard.

The parties appearing on that day were heard.

The absence of the lawyers for the plaintiff on that day is explained on the ground of professional engagement of two Advocates for the plaintiff in other Courts on the date of hearing of the suit.

In my view, the same cannot be a ground for either recall of the preliminary decree or a modification thereof.

The absence of the third Advocate for the plaintiff for his personal difficulty does not improve the situation for the plaintiff as he had other Advocates other than the one who could not come due to his personal reasons.

Venkata Reddy & ORS.(supra) has held as follows:“………………………………………………….A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment.

Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code.

A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive.

No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree – the decree which would be executable would be the final decree.

But the finality of a decree or a decision does not necessarily depend upon it’s being executable.

…………………………………………….” Mool Chand & ORS.(supra) has held that if an appeal is not filed against a preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against the final decree.

Roshan Singh & ORS.(supra) has dealt with object of Section 151 of the Code of Civil Procedure, 1908.

It has held that its object is to supplement and not to replace the remedies provided for in the Code of Civil Procedure, 1908.

It has also held that Section 151 of the Code of Civil Procedure, 1908 would not be available when there is an alternative remedy.

The power under Section 151 of the Code of Civil Procedure, 1908 is restricted.

The inherent powers of the courts are in addition to the powers specifically conferred on it.

If there are express provisions covering a particular topic, then the inherent power could not be exercised.

National Institute of Mental Health & Neuro Sciences (supra) has held that the jurisdiction of the Court under Section 151 of the Code of Civil Procedure, 1908 cannot be exercised so as to nullify a provision of the Code of Civil Procedure, 1908.

In Steel & Allied Products LTD.(supra) the Division bench has considered the provisions of Chapter 16 Rule 24 of the Original Side Rules of this Hon’ble High Court.

It has been held that the Court retains the jurisdiction to recall or modify an order even after signing the same if such order has not been filed in terms of Chapter 16 Rule 24 of the Original Side Rules of this Hon’ble High Court.

It notes other authorities for the proposition that in the Original side, an order which has been drawn up but has not been completed or filed could be reconsidered by the Judge who made it as such an order has not been perfected.

In the present case, the preliminary decree dated July 24, 2014 would attain finality between the parties once the same is sealed and filed.

The department has not sealed and filed the preliminary decree dated July 24, 2014 in terms of Chapter 16 Rule 24 of the Original Side Rules of this Hon’ble High Court.

Till such time the preliminary decree is sealed and filed the decree is not perfected and, therefore, does not attain finality.

The Court passing the decree retains the jurisdiction to reconsider it.

Chapter 16 Rule 24 of the Original Side Rules of this Hon’ble High Court is as follows:“24.

Orders to be sealed and filed.- Every order after being signed shall be sealed and filed forthwith.” The plaintiff has stated in paragraph 3 of its application that the judgment and decree dated July 24, 2014 has not been drawn up, completed and filed.

The two sets of defendants opposing the application have used two affidavits.

While dealing with such averments made in the petition, the two sets of defendants have contended that the decree has become operative from the date of its pronouncement and that, the plaintiff could not take advantage of a failure or lapse on the part of the department in drawing up the decree.

Such a contention is not available to the defendants.

Under Rule 27 of Chapter 16 an application is required to be made for drawing up of every decree and order other than an order directing a person to furnish security.

A requisition has to be made to the Registrar, Original Side in writing by the party whose favour the decree or order was made within three days from the date of the decree or the order.

In default of his applying within such time, any other party to the suit may make such application by a requisition in writing to the Registrar, Original Side within seven days from the date of the decree or order for drawing up, completion and filing of the same.

In the present case, the plaintiff had three days from the date of the decree to apply for drawing up and completion by submitting a requisition to such effect with the Registrar, Original Side.

The plaintiff has not done so.

Two sets of defendants in their affidavits have not disclosed any material to suggest that either the plaintiff had applied for drawing up or completion of the decree in terms of Rule 27 of Chapter 16 or that any of them had done so within the stipulated period or at all.

The materials made available on record therefore suggest no application for drawing up of the decree had been made by any of the parties to the present suit till date.

Rule 27 of Chapter 16 also provides that if no application is made under Rule 27 for drawing up a decree or order within the time prescribed therein, the decree or the order shall not be drawn up except under order of the Court or a Judge to be obtained, unless otherwise ordered, by petition ex parte.

Such an application in terms of Rule 27 of Chapter 16 has not been made to Court.

Therefore, in terms of Rule 27 Rule 16 in the event no application for drawing up and completion of the decree or order is made to the Registrar, Original Side within the time stipulated therein or within the time permitted by the Court, the department is not required to draw up a decree or an order.

In such circumstances, the contention of the defendants that the department was at fault in not drawing up the decree cannot be accepted.

None of the parties to the suit had applied for drawing up and completion of the decree.

In such circumstances, applying the ratio of Steel & Allied Products LTD.(supra) it could be said that the preliminary decree dated July 24, 2014 did not attain finality in absence of the same being drawn up, sealed and filed.

Consequently, the Court retains the jurisdiction to reconsider, recall or modify such a decree.

Since the preliminary decree dated July 24, 2014 had not been perfected the ratio laid down in Venkata Reddy & ORS.(supra) and Mool Chand & ORS.(supra) are not attracted.

Two immovable properties involved in the present suit have been dealt with by the decree dated July 24, 2014.

The properties were directed to be put up for sale by public auction by such decree.

One of the immovable properties is admittedly a dwelling house.

The plaintiff resides therein.

None of other parties to the suit claim to be residing at the dwelling house.

Prior to the passing off the preliminary decree, I had endeavoured that the parties try to work out a scheme for partition of the two immovable properties concerned.

To such effect I had directed the parties to hold meetings.

Such endeavour did not bear any fruitful warranting a decision in the suit on merits.

When the preliminary decree dated July 24, 2014 was passed the scheme for partition as proposed by the plaintiff was not placed before me.

The scheme for partition now sought to be explored relates to the dwelling house only.

The plaintiff is not claiming any modification of the preliminary decree with regard to the immovable property concerned.

Since the plaintiff is residing at the dwelling house and since in my view, the scheme for partition propounded by the plaintiff could be explored so as to allow the dwelling house or such portion thereof as may be possible, to be retained by a family member, a modification of the preliminary decree dated July 24, 2014 as prayed by the plaintiff is warranted.

In view of the ratio laid down in Steel & Allied Products LTD.(supra) and the preliminary decree dated July 24, 2014 not being drawn up, sealed and filed in terms of Chapter 16 Rule 24 of the Original Side Rules of this Hon’ble High Court, I modify the preliminary decree in the manner and to the extent as provided hereafter.

I direct the Commissioners of Partition appointed by the preliminary decree dated July 24, 2014 to explore the possibility of effecting partition of the dwelling house being Premises No.21, Girish Avenue, Kolkata- 70003 in accordance with the shares of the parties.

The parties are at liberty to take allotment jointly if they express such a desire.

The Joint Commissioners of Partition will consider the scheme for partition submitted as Annexure-B to the affidavit affirmed by Supriya Dutta on April 06, 2015 in respect of the dwelling house.

The plaintiff will bear all costs and expenses of the Commissioners of Partition.

The plaintiff will also bear the costs and expenses of the Valuer.

The Commissioners of Partition will proceed expeditiously as possible.

The Commissioners of Partition will convene a meeting of the parties within 7 days hereof and will proceed to appoint a Valuer forthwith preferably within a fortnight from date.

The Commissioners of Partition will submit a report to this Hon’ble Court on the next date of hearing of the suit.

In the event, the plaintiff is unable to bear any of the costs, expenses and fees required to be incurred to implement this order, the modifications made herein shall stand recalled forthwith.

The preliminary decree dated July 24, 2014 would stand revived in its entirety in such an event.

C.S.No.521 of 1992 will appear in the monthly list of July 2015 for consideration of the report of the Joint Commissioners of Partition.

G.A.No.109 of 2015 is disposed of.

No order as to costs.

[DEBANGSU BASAK, J.].