ARJUN KR SARKAR Vs. LATIKA RANI GHOSH

JUDGEMENT

(1.) -This is an application under section 115 Civil Procedure Code against an order passed on 17.9.91 in Misc. Appeal No. 134 of 1991 by learned Additional District Judge, fourth court, Alipore.

(2.) The petitioner as a plaintiff filed a suit in the third court of Munsiff at Alipore for partition claiming one anna share against Dhirendra Nath Ghosh, Ashutosh Ghosh and Alekjan Bibi as defendants. The said suit was initially numbered as Title Suit No. 75 of 1958 which was eventually renumberes as 84 of 1962 in the First Additional court of Munsiff, Alipore and subsequently renumbered as T.S 104 of 1989 in the Second Additional court of Munsiff, Alipore. The Ghosh defendants contested the suit denying the plaintiffs right, title, interest and contending, inter alia, that the defendant Alekjan Bibi's interest was acquired by them by means of ouster. A preliminary decree was passed on 16.9.64 declaring the plaintiff-petitioner's one anna share in the suit properties. Title Appeal 2515 of 1964 was preferred against that preliminary decree and it was dismissed. A second appeal being S.A No. 1150 of 1971 was preferred against the judgment of dismissal of the first appeal and the suit was remanded for a decision on the question of ouster of Alekjan Bibi as pleaded by the Ghosh defendants No. 1 and 2. After remand, the suit was again decreed in preliminary form on 22.6.85. Against that decree no appeal was, however, preferred. The defendant No. 2, Asuthosh Ghosh died on 1.3.84, that is to say, before the passing of the preliminary decree on 22.6.85 and as the plaintiff petitioner was not aware of the death, which was also not reported to the plaintiff or the court, no steps could be taken by the plaintiff for substitution in place of the deceased defendant No. 1. In pursuance of the preliminary decree, partition commissioner was appointed who carried out measurement of the lands. At that stage, on 27.1.86, the defendant No. 1 filed an application for recording abatement of the suit due to non-substitution within the time limit in place of the deceased defendant No. 2 and upon a contested hearing of that application, the trial court by its order dated 25.8.86 rejected that application holding, inter alia that the suit being a suit for partition could not abate due to non-substitution of the heirs of the deceased defendant. While rejecting the application the court gave the liberty to the plaintiff for bringing the heirs and legal representatives of the deceased defendant No. 2 on record. No appeal was preferred against the said order and in pursuance of this order, the plaintiff filed an application on 7.11.86 under order 1 Rule 10 read with Order 6 Rule 17 and section 151 CPC for impleading the heirs of the deceased defendant No. 2 and as the said application was not opposed by the defendant No.1 the trial court allowed the application ex parte by its order dated 13.1.87 impleading the heirs of the deceased defendant No. 2 as defendants in the suit. Thereafter on 3.6.89, the defendants filed another application for setting aside the preliminary decree that was passed on 25.8.86 on the ground that it was a nullity having been passed against the defendant No. 2 who was already dead and also filed an application for staying of the work of the partition commissioner. On a contested hearing the court rejected this application by its order dated 3.4.90 holding, inter alia, that the defendants having unsuccessfully raised a similar question by their earlier application dated 27.1.86, is estopped from agitating the self-same matter over again. Against the said order dated 3.4.90 of the trial court rejecting the defendants' application for setting aside the preliminary decree dated 22.6.85, the defendants moved the District Judge in revision being C.R. No. 142 of 1990 which was subsequently withdrawn on 17.5.90 without any leave being taken. Finally, the defendants filed an independent suit being T.S. No. 261 of 1990 in the 6th court of Munsiff at Alipore for a declaration that the preliminary decree passed in the earlier suit was a nullity. The defendants moved an application for injunction restraining the petitioner who was the defendant No. 1 in the subsequent suit from proceeding with the earlier suit. Upon a contested hearing of the matter, the learned Munsif rejected the application for injunction by its order dated 17.2.97 principally on the ground that their similar prayer for setting aside that particular preliminary decree was rejected by order dated 3.4.90 passed in the earlier suit. Against this order of rejection of the application for injunction in the subsequent suit, the plaintiffs of the subsequent suit preferred Misc. Appeal No. 134 of 1997 and the lower appellate court by the impugned order dated 17.9.98 allowed that appeal by setting aside not only the order under appeal but also the preliminary decree on a finding that it was a nullity without however going into the question of legality or propriety of the order under appeal and without granting the temporary injunction prayed for. And hence the present revisional application at the instance of the plaintiff of the earlier suit who is defendant in the subsequent suit.

(3.) It has been urged on behalf of the plaintiff-petitioner of the earlier suit that the learned Additional District Judge acted illegally and without jurisdiction in setting aside the preliminary decree passed in the earlier suit in the Misc. Appeal which arose out of an interlocutory order rejecting the application for injunction in the subsequent suit without at all considering the previous orders passed on 25.5.86, 13.1.87 and 8.4.90 in the earlier suit as well as the fact that the revisional application being C.R. No. 142 of 1990 preferred against the order dated 3.4.90 rejecting the application for setting aside the preliminary decree was unconditionally withdrawn and that the learned Additional District Judge should have held that the application for temporary injunction in the subsequent suit was barred by the principles of res judicata.