KIRAN CHANDRA PRAMANIK Vs. PURNA CHANDRA PRAMANIK

JUDGEMENT

(1.) The property in suit, which is a plot of land in the town of Khulna, twelve and half cottas in area, is a part of a bigger block of 25 cottas, which originally belonged to defendant 1 and one Krishnadhone Pramanik in equal shares, On 8 January 1927 defendant 1 sold his undivided eight annas share in the block of 25 cottas to the plaintiffs, who thereafter instituted a suit for partition against Krishnadhone Pramanik. That suit terminated on 8 January 1929 with a compromise decree. A commissioner of partition was appointed and the block was partitioned by metes and bounds; the northern half with an area of 12 cottas was allotted to Krishnadhone and the southern half with an area of 12 cottas was allotted to the plaintiff. While the partition suit was pending defendant 1 sued defendant 2 for arears of rent on the allegation that the latter was a tenant under him of 10 cottas of land out of the said block of 25 cottas at a rental of Rs. 5-8-0. This 10 cottas of land has fallen to the plaintiff's allotment. The said suit was decreed ex parte on 25 July 1928. The plaintiff's case is that this was a false suit, based on a fictitious tenancy, instituted with a view to deprive him of the full benefit of his property, and the decree passed therein is a collusive one. Prima facie it is a suspicious proceeding, but as the merits of the case have not been investigated nothing need be said further about it at this stage.

(2.) Then followed certain proceedings between the plaintiffs and the defendants to this suit which have complicated matters, by reason of the misguided advice which the plaintiff received and by the Court omitting to make orders in strict conformity with the rules laid down in the Civil Procedure Code; but, in my judgment, if the substance and not the form of those orders, which I will hereinafter notice, be looked into, there is no difficulty in answering the question as to whether the suit out of which this appeal arises is maintainable or not. The proceedings which I have mentioned above are the proceedings of a title suit instituted by the plaintiff of the present suit against the defendants of this suit on 19 November 1928 while the partition suit was pending. That suit was numbered Title Suit 644 of 1928 and on transfer as Title Suit 558 of 1928. In that suit the plaintiff after reciting his title, and the fact that the aforesaid partition suit was pending stated that defendant 1 had obtained a collusive rent decree against defendant 2. He however prayed for a declaration of his title and for a declaration that the tenancy of defendant 2 under defendant 1 at a Jama of Rs 5-8-0 was a fictitious one and for injunction for restraining defendant 1 from executing his rent decree against defendant 2. The last mentioned prayer became unnecessary in the course of the trial as it was said that defendant 2 had satisfied the said decree out of Court. He did not value the lands in suit and pay ad valorem court-fee stamp but affixed to his plaint a court-fee stamp of Rs. 20 only. The Munsiff gave him a decree in terms of his prayer on 10 August 1929, that is granted him a declaration that the alleged tenancy of defendant 2 under defendant 1 was a fictitious one. The defendants preferred an appeal from the said decree being Title Appeal No. 393 of 1929. The Subordinate Judge by his judgment dated 30 May 1931 held that the suit as framed was not maintainable; the plaintiff being out of possession was bound to ask for recovery of possession, but as the plaintiff had made an application for amendment of his plaint for including a prayer for possession, while his suit was pending in the trial Court, he remanded the case to the trial Court. The order as made is in the following terms: It is accordingly ordered that the appeal be allowed and the decision of the lower Court be set aside and that the suit be remanded to the lower Court for fresh trial after amendment of the plaint as prayed for by the plaintiff by his petition of 12 July, 1929, and upon payment of the proper amount of Court-fees by him. Costs in this Court and in the lower Court will abide the final result.

(3.) Having regard to the fact that the plaint contained a prayer for permanent injunction whether the Subordinate Judge took a correct view of Section 42 of the Specific Relief Act, may be open to question in view of the decision of this Court in Joy Narain Sen V/s. Srikantha Roy, 1922 Cal 8, but that question need not be considered now. On 15 June 1931 the records were received by the trial Court and on 15 July 1931 the application for amendment of the plaint was allowed, and the plaintiff was directed to give the proper value of the disputed property within a week and to put in the deficit court-fee. On 22 July, 1931 the plaintiff took no steps in those directions, but no order could be passed on that date as the presiding officer was absent and the case was adjourned to 25 July 1931. On the adjourned date the plaintiff put in an application for withdrawing the suit with liberty to bring a fresh suit on the same cause of action, but that application being refused on 3 August 1931, the plaintiff taking no further steps, the suit was dismissed for default with costs to the defendants including costs of the appellate Court.