ASHIS KUMAR GHOSH Vs. GOPAL CHANDRA GHOSH

JUDGEMENT

(1.) Mr. Sabyasachi Bhattacharyya, learned Counsel for the appellants, had challenged this judgment of affirmance in this second appeal, deciding the maintainability of the suit on the question of forum, on the ground that Order 23 Rule 3 proviso read with the explanation and Rule 3A of the Code of Civil Procedure (CPC) would not stand in the way of the maintainability of a suit by persons who were not parties to the suit since compromised when the scope of challenge under Rule 3 proviso read with explanation and Order 43 Rule 1(a)(ii) or within the scope of Order 21 Rule 101 read with section 47 CPC, had elapsed. The suit would not be barred by reason of the specific provision in the Contract Act relating to void and voidable contracts where fraud was alleged in such a circumstances. He had led us through various provisions of CPC as well as the Contract Act and the decisions of this Court in Gostd Behari Pramanik vs. Malati Sen, AIR 1985 Cal 379 and Suraj Kumari vs. District Judge, Mirzapur, AIR 1991 All. 75. Respondents' contention :

(2.) Mr. Mukherjee, learned Counsel for the respondents, on the other hand, pointed out that by virtue of the provisions incorporated in the 1976 CPC, the legislature has expressed its intention to shorten the litigation and confine and restrict the forum in certain cases where there were scope for invention of mode and method to lengthen the proceedings. Order 23 Rule 3 proviso read with Rule 3A and the explanation indicates such an intention which is again supported by Order 43 Rule 1A which virtually permits an appeal in such a case despite section 96(3) CPC. In support of his contention he sought to draw analogy from the provisions contained in section 47 and Order 21 Rule 101 CPC. According to him, the forum being restricted, there is no scope for maintaining Separate suit. He further contended that the compromise was effected between Manmotha Kumar Ghosh and Kanak Kumar Sarkar in 1978, some months before Manmotha Kumar died admitting the title of Kanak Kumar in respect of the certain properties. The plaintiffs were claiming through Manmotha by virtue of an alleged Will purported to be executed by Manmotha, on which probate had been applied for; and that too the scope of the suit was restricted in respect only of two properties in which the plaintiffs were seeking to restrain the respondents from proceeding with some suit against some other persons. Therefore, in such a case, according to him, both the Courts below were justified in holding that the suit was not maintainable. Mr. Mukherjee had also relied on the decisions in Banowarilal vs. Chando Devi & Anr., AIR 1993 SC 1139; Morium Bibi & Ors. vs. Musst. Showkatara Begum & Ors., 98 CWN 1974; Jnanendra Chandra Nath (deed) vs. Pabitra Bhowmik & Ors., 1992(1) CLJ 130 and S. M. Seeni Ibrahim Sahib & Anr. vs. S. M. Sultan Ibrahim, 2000(9) SCC 536. Reply of the appellants :

(3.) In reply Mr. Bhattacharyya, learned Counsel for the appellants, submitted that the plaintiffs were no more entitled to get the benefit from the proviso read with the explanation under Rule 3 Order 23 CPC after the compromise decree had been passed. Since the plaintiffs had discovered the situation long after the decree was passed and no appeal having been preferred, the benefit arising out of Order 43 Rule 1A was not available to his client. Then again the provisions of section 96(3) bars an appeal. At the same time, no execution having been levied, there was no scope for availing of the benefit either of section 47 or of Order 21 Rule 101. In such a circumstance, therefore, the suit was the only remedy in view of the principle of ubi jus ubi remedium. Therefore, both the learned Courts below went wrong in dismissing the suit on the ground of maintainability. The question: