LINGAM B C DIED Vs. STATESENKO LARISSA

JUDGEMENT

(1.) A learned single Judge of this Court has ordered to implead the applicants in Application No. 2807 of 1986 as party-defendants in C.S. No. 134 of 1986, a suit for partition. This, he has ordered exercising the Court's power in this behalf to pass orders without any application, although he has found that the person who claimed authority under the power of attorney, allegedly executed by the applicants therein, was not competent to represent them. Two appeals accordingly are preferred, one by the Plaintiff against the order to add the applicants in Application No. 2807 of 1986 as party-defendants and the other on behalf of the applicants therein in respect of that part of the order, in which the learned single Judge has found the power of attorney document not valid. It is not in dispute that the estate with respect to which the plaintiff and the defendants in C.S. 134 of 1986 are in dispute for partition, belonged to one Dr. V. Natarajan since deceased. In the plaint, a claim for partition and separate possession of 1/7th share in the properties has been advanced by the plaintiff alleging that Dr. Natarajan died on 13-5-1984 leaving no issues and no other preferential heir than the plaintiff and the defendants. According to the plaintiff, Dr. Natarajan's wife predeceased him and he died intestate. Plaintiff and defendants 3 and 6 are brothers of late Dr. Natarajan. Defendants 1, 2, 4 and 5 are sisters. The applicants, however, have sought to be impleaded as party-defendants in the suit saying that a natural son to the 6th defendant Vinayagam, known as Balamani Natarajan, was adopted by Dr. Natarajan as his son, since he had no children and Balamani Natarajan had predeceased his adopted parents, Dr. Natarajan and his wife, leaving behind his adopted parents, his wife, the 1st applicant and daughter, 2nd applicant. Dr. Natarajan's wife died in January, 1983 leaving behind the properties mentioned in plaint schedules A to D, which properties, devolved equally on Dr. Natarajan and his grand daughter, the 2nd applicant and after the death of Dr. Natarajan, his estate also devolved on the 1st applicant and her daughter, i.e. to say, the daughter of the adopted son of Dr. Natarajan, known as Margaritha. According to the applicants, they alone were/are entitled to Inherit the entire estate of Dr. Natarajan and his wife Jayammal. They would suffer seriously if brothers and sisters of Dr. Natarajan were allowed to proceed without they being impleaded as parties to partition the suit properties.

(2.) IT is on the record that 1st applicant who has claimed to be the wife of the adopted son of Dr. Natarajan, lived in a foreign land earlier known as U.S.S.R. One V. Cheenu Prabhakaran claiming to be the power of attorney agent filed the petition on their behalf.

(3.) INDEED, the Courts have to correct themselves many a time to bring the administration of justice in tune with the principles of law that are indicated in the judgments of the Supreme Court. We can take for an illustration a Full Bench Judgment of this Court in the case of Central Brokers v. Ramanarayana Poddar & Co. A.I.R. 1974 SC 1786 = 94 L.W. 91 S.N, in which over-ruling an earlier judgment of this Court in Abdul Nabhi Saheb v. Ramadashmahah O.S.A. No. 103 of 1989, judgment dated 3/10/1991, since reported in 1993-1-L.W. 132 (F.B.) the Court expressed that an order made under S. 10 of Code of Civil Procedure, or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in Clause 15 of the Letters Patent and would, therefore, be not appealable. In Shah Babulal Khimji v. Jayaben supra, the Supreme Court has given a specific illustration, viz., an order staying or refusing to stay a suit under S. 10 of the Code of Civil Procedure to be treated as a judgment for appeal under Clause 15 of the Letters Patent of this Court. The Full Bench Judgment of this Court has, thus, been found wrong and, what it over-ruled in the judgment of a Bench of this Court in the case of Abdul Nabhi Saheb v. Ramadashmamah 1991 T.L.N.J. 166. since reported in 1993-1-L.W. 127 is acknowledged as correct in law. A Bench of this Court, of which one of us is a member, while dealing with the case attracting Section 10 of the Code of Civil Procedure, has observed in the case of Radhika Komel Parekh v. Komel Parekh A.I.R. 1990 Delhi 130 as follows:? ?Before we proceeded to hear the appeal, learned counsel for the respondent questioned the maintainability of O.S.A. No. 94 of 1992 arising out of the order in Application No. 69 of 1992 on the ground that an order passed on an application for stay of the proceedings under Section 10. C.P.C. is not a ?judgment? and thus no appeal under Clause 15 of the Letters Patent is maintainable. He relied upon a Full Bench decision of this Court in Central Brokers v. Ramarayana Poddar & Co. (A.I.R. 1954 Madras, 1057 = 67 L.W. 729) (F.B.) in which overruling an earlier judgment of this Court in Abdul Nabhi Sahib v. Ramadashmamah (A.I.R. 1943 Madras 371 = 61 L.W. 370) the Court expressed that an order made under S. 10, Civil P.C., or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in CI. 15 of the Letters Patent and would, therefore, be not appealable. The Full Bench of this Court in this behalf mainly relied upon a judgment of the Supreme Court in Asrumati Debi v. Rupendra Debi (A.I.R. 1953 S.C. 198 = 66 L.W. 371) in which two tests have been laid down to find out whether an adjudication in a particular processing is a judgment or not; if they are so (1) whether it terminates the suit or processing, and (2) whether it affects the merits of the controversy between the parties in the suit itself. .. The decision in the case of Govindarajulu v. Dever and Co. (A.I.R. 1954 Madras 248 = 66 L.W. 914) or in Angadu Narasimhalu Chettiar's case (1991 (II) M.L.J. NRC 1 = 1992-1-L.W. 429) (supra) in which it has been held that an order transferring a suit from one Court to another is not a judgment within the meaning of Clause 15 of the letters Patent, stands on a different footing and distinguishable from the Full Bench Judgment in the case of Central Brokers (A.I.R 1954 Madias 1057 = 67 L.W. 729 (F.B.) (supra) in which it has been held that an order made under S. 10 Civil P.C. or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in Cl. 15 of the Letters Patent and would, therefore, be not appealable. Govindarajulu's case (A.I.R. 1954 Madras 248) and Angadu Narasimhalu Chettiar's case (1991 (II) M.L.J. NRC I = 1992-1- L.W. 429) (supra) are distinguishable for the reason that there may not be any occasion, in the case of an order to transfer a suit or refuse to transfer a suit from one Court to another, for a judgment at interlocutory stage will be an order of moment or affecting any party. We, are, however, spared of any exercise of distinguishing the Full Bench judgment which, on the face of it, cannot be distinguished from the facts of the instant case or of recording any difference of opinion and a reference thus to a larger bench or request to the Chief Justice for such an order for the reason of a judgment of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben A.I.R. 1981 S.C. 1786 in which this aspect of the matter has been fully gone into and it is stated in no uncertain terms that an order staying or refusing to stay a suit under Section 10 C.P.C. is appealable under Cl. 15 of the Letters Patent. There is, however, no reference in this judgment of the Supreme Court to the Full Bench judgment of this Court in the case of Central Brokers A.I.R. 1954 Madras 1057 = 67 L.W. 729 (F.B.) (supra), but the, case of Asrumati Debi v. Kumar Rupendra Deb Raikot A.I.R. 1953 S.C. 195 = 66 L.W. 37 (supra) which has been relied upon by the Full Bench of this Court as stating the law on the subject, has been referred to and the Supreme Court has said as follows: ?This Court also has incidentally gone into the interpretation of the word ?judgment? and has made certain observations but seems to have decided the cases before it on the peculiar facts of each without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Court has to be settled once for all some time or the other. In this connection, in Asrumati Debi v. Kumar Rupendra Deb Raikot, (1953 SC 1159 = (A.I.R. 1933 SC 198 = 66 L.W. 37) this Court observed as follows:? (at p. 200):? In view of this wide divergence of judicial opinion, it may be necessary for this Court at some time or other to examine carefully the principles upon which the different view mentioned above purports to be based and attempt to determine with so much definiteness as possible the true meaning and scope of the word ?judgment? as it occurs in Clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a ?judgment? within the meaning of Clause 15 of the Letters Patent.? After referring however to the various other judgments of the Supreme Court and analysing the entire ambit of the scheme of the Letters Patent and the provisions of the Code of Civil Procedure, both old and new, the Supreme Court in Shah Babulal Khimji's case 1 (supra) has stated as follows:?