IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP NO.29 OF 2017 1. Sri Nitesh Ghosh, Son of Late Narendra Nath Ghosh. 2. Sri Ashim Saha, Son of Sri Ajit Kr. Saha. 3. Sri Alak Ghosh, Son of Late Hari Das Ghosh. 4. Sri Arun Saha, Son of Sri Amuly Charan Saha. 5. Sri Niranjan Banik, Son of Late Nikunja Bihari Banik. 6. Sri Tarun Kanti Sarkar, Son of Late Arun Kanti Sarkar. 7. Sri Pannalal Jain, Son of Late Kanti Lal Jain. 8. Sri Swapan Sen, Son of Late Nirod Ranjan Sen. All are residents of Kharupetia Town, Mouza: Kharupetia, PS: Kharupetia, District: Darrang, Assam..Petitioners/Defendant Nos.2 to 9 -Versus- 1. Smt. Patiya Devi Agarwal @ Sureka, Wife of Late Prahlad Rai Kyal. 2. Sri Bijay Kumar Agarwal @ Sureka @ Kyal, Son of Late Mirzamal Agarwal alias Sureka alias Kyal. 3. Sri Shreeram Agarwal @ Sureka @ Kyal, Son of Late Mirzamal Agarwal alias Sureka alias Kyal. 4. Sri Prem Kumar Agarwal @ Sureka @ Kyal, Son of Late Mirzamal Agarwal alias Sureka alias Kyal. 5. Sri Bikash Agarwal @ Sureka @ Kyal, Son of Late Rupchand Kyal. 6. Sri Rajendra Kr. Sureka, Son of Late Prahlad Rai Kyal. 7. Sri Krishna Kr. Sureka, Son of Late Prahlad Rai Kyal. CRP No.29/2017 Page 1 of 12
8. Smti. Chanchal Devi Agarwal @ Sureka @ Kyal, Wife of Late Sanjay Kyal. 9. Sri Sanskar Kyal, Son of Late Late Sanjay Kyal. 10. Sri Vaibhav Kyal, Son of Late Sanjay Kyal. Respondent Nos.9 & 10 are the minor sons of Late Sanjay Kyal and as such they are represented by their mother Smti. Chanchal Devi Agarwal @ Sureka @ Kyal, All are residents of Fancy Bazar, M.S. Road, Guwahati- 781001, District: Kamrup, Assam...Respondents/Plaintiffs 11. Sri Subhkaran Jain, Son of Late Tolaram Jain, Resident of M.S. Road, Guwahati-781001, District: Kamrup (M), Assam, 12. Sri S.R. Bora, The then Circle Officer, Dalgaon Revenue Circle, Darrang, Assam...Proforma Respondents/ Defendant Nos.11 & 12 B E F O R E HON BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the petitioners For the respondent Nos.1 to 10 : Mr. S.P. Roy, Advocate. : Mr. S.K. Goswami, Advocate. Date of hearing : 8 th November, 2017. Date of Judgment & Order : 12 th December, 2017. JUDGMENT & ORDER By this Civil Revision Petition filed under Article 227 of the Constitution of India, the petitioners, who are defendant Nos.2 to 9 in Title Suit No.17/2015, question the order dated 06.12.2016 (Annexure-5) passed by the learned Civil Judge, Darrang, Mangaldai, in Title Suit No.17/2015, whereby the learned Civil CRP No.29/2017 Page 2 of 12
Judge rejected the application filed by the petitioners under Order 14 Rule 1 of the CPC for framing preliminary issues. 2. In the suit filed by the plaintiffs, numbering 10, the defendant No.1 is one Sri Subhkaran Jain. As noticed earlier, defendant Nos.2 to 9 are the present petitioners. Plaintiff Nos.9 and 10 are minors and they are sons of Late Sanjay Kyal. The mother of plaintiff Nos.9 and 10 is Smt. Chanchal Devi Agarwal @ Sureka @ Kyal and she is the plaintiff No.8 in the said suit. The following recital appears in the array of parties in respect of plaintiff Nos.9 and 10: Plaintiff Nos. 9 and 10 are the minor sons of Late Sanjay Kyal and as such they are represented by their mother Smt. Chanchal Devi Agarwal @ Sureka @ Kyal. 3. The case projected in the plaint is that the predecessor-in-interest of the plaintiffs, Late Mirzamal Agarwal alias Sureka alias Kyal was the owner of a plot of land measuring 12 Bigha 4 Katha and 4 Lecha, covered by Dag Nos.972, 973 and 974 in Patta No.793 of Village Kharupetia, Mouza-Kharupetia. Mirzamal Agarwal alias Sureka alias Kyal expired in the year 1968. At the time of death of Mirzamal, he had five sons, namely, Prahlad Rai Kyal, Rupchand Kyal, Bijay Kr. Kyal, Shreeram Kyal and Prem Kr. Kyal. Plaintiff No.1 is the wife of Prahlad Rai Kyal, plaintiff No.2 is Bijay Kr. Agarwal alias Surekha alias Kyal, plaintiff No.3 is Shreeram Agarwal alias Sureka alias Kyal and plaintiff No.4 is Prem Kumar Agarwal alias Sureka alias Kyal. Prahlad Rai Kyal expired on 25.04.1996 leaving behind his wife Smt. Patia Devi Agarwal @ Sureka (plaintiff No.1) and two sons, namely, Sri Rajendra Kr. Sureka and Sri Krishna Kr. Sureka, who are plaintiff Nos.6 and 7, respectively. Rupchand Kyal expired in January, 1996 leaving behind his wife Smt. Sulochana Devi Kyal and two sons, Sanjay Kyal and Bikash Kyal. Sanjay Kyal expired on 24.02.2005 leaving behind his wife Smt. Chanchal Devi Agarwal alias Sureka alias Kyal and two sons, namely, Sanskar Kyal and Vaibhav Kyal, who are plaintiff Nos.8, 9 and 10, respectively. In the year 2014, Smt. Sulochana Devi Kyal, wife of Late Rupchand Kyal also expired. Bikash Agarwal @ Sureka @ Kyal is plaintiff No.5. 4. Out of the aforesaid 12 bigha 4 katha 4 lecha of land, the names of plaintiff Nos.1, 6 and 7 had been mutated in respect of 3 bigha 1 katha 8 lecha of CRP No.29/2017 Page 3 of 12
land in the year 1998 as per amicable settlement between the parties and they had sold 2 bigha 1 katha 5 lecha and as such the plaintiffs are owners of 10 bigha 2 katha and 19 lecha of land, as described in Schedule-A to the plaint. Defendant No.1 and the father of plaintiff Nos.2, 3 and 4 were close friends. Defendant No.1 was requested to look after the suit land in absence of the plaintiffs as he had business establishment at Kharupetia. The defendant No.1, however, fraudulently sold 9 bigha 2 katha and 16 lecha of land to defendant Nos.2 to 9. From the news item flashed in the electronic media in the year 2013, the plaintiffs came to learn that their land is the subject-matter of some controversy in regard to delivery of and handing over of possession and, accordingly, the plaintiff No.7 made enquiries and, on his enquiries, he came to know that the defendant No.1, in connivance with the Circle Officer, Dalgaon, as well as the Lat Mandal of the area, mutated land measuring 9 bigha 2 katha 16 lecha vide an order passed by the Circle Officer, Dalgaon, on 27.04.2011 recording the name of the defendant No.1 and, thereafter, the defendant No. 1 sold the entire 9 bigha 2 katha 16 lecha of land. The mutation order reflected that the mutation was done treating the defendant No.1 to be the legal heir of Late Mirzamal Agarwal and by virtue of partition. Subsequently, by an order dated 02.03.2011, the names of respondent Nos.2 to 9 were mutated in the records of right and endorsement was made in the Chitha on 12.04.2013. 5. The plaintiffs had prayed for the following reliefs: (i) (ii) Declaration of right, title and interest of the plaintiffs over the suit land more fully described in Schedule B of the plaint and confirmation of possession. Declaration that defendant Nos.2 to 9 cannot claim any right, title and interest over the suit land described in Schedule B, on the basis of the sale deed No.105/2013 dated 21.03.2013, executed by the defendant No.1. (iii) Precept may be issued to cancel the mutation order dated 27.04.2011 granted by Circle Officer, Dalgaon, and endorsement made in Chitha dated 04.07.2011, by which name of the defendant No.1 was mutated in the revenue record as pattadars, as well as Mutation order dated CRP No.29/2017 Page 4 of 12
02.04.2013 and endorsement made in Chitha dated 12.04.2013 by which names of the defendant Nos.2 to 9 were recorded as pattadars in the revenue record in Schedule B land. (iv) Plaintiffs also pray for permanent injunction restraining the defendants from disturbing peaceful possession and enjoyment of the suit land. (v) Plaintiffs also pray for a declaration that sale deed No.105/2013 dated 21.03.2013 executed in the office of the Sub-Registrar, Dalgaon, Darrang by defendant No.1 in favour of defendant Nos.2 to 9 as void and inoperative in law and no title can be transferred by the aforesaid sale deed in favour of defendant Nos.2 to 9. (vi) Any other relief/reliefs for which the plaintiffs are entitled. 6. Summonses were issued by the learned trial Court on 15.05.2015. On 29.09.2015, the defendant Nos.2 to 9 filed an application under Order 14 Rule 1 CPC and the application was registered as Petition No.1556/2015. In the said petition, prayer was made to frame two preliminary issues, which are as follows; (a) (b) Whether the suit is liable to be taken off the file as the minor plaintiff Nos.9 and 10 are not represented by any guardian and next friend? Whether the plaint is liable to be returned to the plaintiffs for not serving under Section 80 CPC to the proforma defendant No.10 i.e. Circle Officer and without taking leave from this Court for institution of the suit as required under Section 80(2) of the CPC? 7. An objection was filed by the plaintiffs stating that no preliminary issues as prayed for can be framed. It is stated therein that the plaintiffs Nos.9 and 10 are represented by their mother, who is a natural guardian in absence of the father, who had already expired. 8. The learned trial Court, after hearing the learned counsel for the parties, held that since the minors are represented by natural guardian, the same satisfies the requirement of Order 32 Rule 1 and 2 CPC. With regard to framing of preliminary issue in respect of notice under Section 80 CPC, the learned trial Court held that whether the respondent No.10 had acted in his official capacity or not is a CRP No.29/2017 Page 5 of 12
matter of fact which has to be decided on the basis of evidence and therefore, it being a mixed question to law and fact, cannot be decided by framing a preliminary issue. 9. Mr. S.P. Roy, learned counsel for the petitioner has submitted that the learned trial Court committed jurisdictional error in rejecting the petition filed by the petitioners by misconstruing the provisions contained in Order 32 and Section 80 CPC. He submits that the learned trial Court ought to have framed preliminary issues and decided the same. In support of his submission he placed reliance on the following (i) Amar Nath Dogra Vs. Union of India, reported in AIR 1963 SC 424, (ii) State of Maharashtra & Anr. Vs. Sri Chander Kant, reported in AIR 1977 SC 148, (iii) Bihari Chowdhary & Anr. Vs. State of Bihar & Ors., reported in AIR 1984 SC 1043, (iv) Ali Ahmad Vs. Said Mian & Anr., reported in AIR 1923 Lah 188, and (v) Bachh Raj Vs. Sunder Mal & Ors., reported in AIR 1963 Rajasthan 119. 10. Mr. S.K. Goswami, supporting the impugned order, has placed reliance on (i) Foreshore Co-operative Housing Society Ltd. Vs. Praveen D. Desai (Dead) through Legal Representatives & Ors., reported in (2015) 6 SCC 412, (ii) Satti Paradesi Samadhi and Pillayar Temple Vs. M. Sakuntala (Dead) through Legal Representatives & Ors., reported in (2015) 5 SCC 674, (iii) Narain Singh Vs. Supurna Kuer & Anr., reported in AIR 1968 Patna 318, (iv) Brij Kishore Lal Vs. Satnarain Lal & Ors., reported in AIR 1954 Allahabad 599 and (v) Nirmal Chandra Ray & Ors. Vs. Khandu Ghose & Ors., reported in AIR 1965 Calcutta 562. 11. I have heard the learned counsel for the parties and have perused the materials on record. 12. Though the petition was filed under Order 14 Rule 1 CPC, having regard to the controversy, it will be appropriate to extract Order 14 Rule 2 CPC. It reads as under: 2. Court to pronounce judgment on all issues (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. CRP No.29/2017 Page 6 of 12
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 13. A perusal of Order 14 Rule 2 CPC goes to show that it engrafts the concept of a preliminary issue. Order 14 Rule 2 CPC confers power upon a Court to pronounce judgment on all the issues subject to the exception carved out under Sub-Rule 2 which provides that where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law, it may try the issue first, if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. The present Order 14 Rule 2 CPC was substituted with effect from 01.02.1977. Prior to its substitution Order 14 Rule 2 read as under: Issues of law and of fact:- Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. 14. A comparison of Sub-Rule 2 as it existed earlier to the amendment and the one after amendment would clearly indicate that before the amendment it was obligatory and mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of issues until after the issues of law had been determined as contrasted with the amended provision where a mandate is given to the Court that notwithstanding the case may be disposed of on a preliminary issue, a Court has to pronounce judgment on all the issues. The only exception to this is CRP No.29/2017 Page 7 of 12
contained in Sub-Rule 2, which relaxes the mandate to a limited extent by conferring discretion upon a Court to the effect that if the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the same relates to the jurisdiction of the Court or a bar to the suit created by law in force. 15. In Foreshore Cooperative Housing Society (supra), the Supreme Court had observed that jurisdiction is an authority to decide a given case one way or other. Further, even if no party had raised objection with regard to jurisdiction of the Court, the Court has power to determine its own jurisdiction. In other words, in a case, where the Court has no jurisdiction, it cannot confer upon it jurisdiction by consent or waiver of the parties. 16. In Satti Paradesi Samadhi and Pillayar Temple (supra), the Supreme Court held that on a plain consideration of the language employed in Sub-Rule 2 of Order 14 CPC, it can be stated with certitude that when an issue requires an enquiry into facts it cannot be tried as a preliminary issue. 17. Section 80(1) CPC reads as follows: 80. Notice (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office ofa) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; CRP No.29/2017 Page 8 of 12
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. 18. In the State of Maharashtra (supra), the Supreme Court held that provisions of Section 80 CPC are express, explicit and mandatory and that the language of Section 80 CPC makes it clear that a notice is to be given against not only the Government but also against the public officer in respect of any act purported to be done under his official capacity. No distinction can be made between acts done illegally and in bad faith and acts done bonafide in official capacity. 19. In Amar Nath Dogra (supra), the Supreme Court had held that if a suit was filed against Government after duly issuing notice under Section 80 CPC but was subsequently withdrawn with permission of Court to file a fresh suit, fresh notice under Section 80 CPC before the fresh suit is filed is not necessary. 20. In Bihari Chawdhary (supra) the Supreme Court reiterated the proposition that a suit against the Government or a public officer, to which requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until the expiration of a period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for under Section 80 CPC and if filed before the expiry of the said period, the suit is to be dismissed as not maintainable. 21. In the instant case, neither the Government nor a public officer is a defendant. The defendant No.10 is arrayed as a proforma defendant by name. It is another matter that he has been described as the then Circle Officer, Dalgaon Revenue Circle, Darrang. On the basis of the parties to the suit it does not appear that the suit was instituted against the Government or against a public officer. But then there is also a prayer in the suit to cancel the mutation order dated 27.04.2011, the endorsement made in Chitha dated 04.07.2011, the mutation order CRP No.29/2017 Page 9 of 12
dated 02.04.2013 and the endorsement made in Chitha dated 12.04.2013, which are acts of a public officer. 22. In view of the reliefs claimed for, whether the Government or a public officer is a necessary party or whether they should have been arrayed as parties is another matter. The Court will not, at this stage, go into the question as to whether the Government or a public officer, in the facts and circumstances of the case, should have been made party and a notice under Section 80 CPC was required to be issued. Such an exercise is beyond the scope and ambit of a preliminary issue. Even if a notice under Section 80 CPC is not issued, though required, such a suit does not touch upon jurisdiction of a Court. 23. Order 32 Rule 1 CPC provides that a suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Sub-Rule (1) of Rule 2 of Order 32 provides that where a suit is instituted by or on behalf of a minor without the next friend, the defendant may apply to have the plaint taken off the file, with cost to be paid by the pleader or other person by whom it was presented. 24. Sub-Rule (2) of Rule 2 of Order 32 CPC provides that notice of such application shall be given to such person and the Court after hearing objections, (if any), may make such order in the matter as it thinks fit. 25. In Ali Ahmad (supra), the facts were that the suit instituted by the minor plaintiff without a next friend was dismissed by the trial Court and the appellate Court. In second appeal before the High Court of Lahore, it was held that sufficient time should be given to enable the minor to have himself properly represented in the suit by a next friend by taking steps to remedy the defect in the plaint. 26. In Bachh Raj (supra), the Rajasthan High Court held that Order 32 Rule 2 CPC does not only contemplate taking off a plaint but it also contemplates rectification of the error in presentation of the suit. 27. In Narain Singh (supra), the Patna High Court held that where a next friend does not come to represent the minor, the Court can appoint any person to act as a guardian of the minor in that legal proceeding. It was also held that the CRP No.29/2017 Page 10 of 12
next friend can be any person, not necessarily any of the guardians, enumerated in Section 4 of the Hindi Minority and Guardianship Act, 1946. 28. In Brij Kishore Lal (supra), it was observed that if some formalities for the appointment of a guardian had not been observed, but if the guardian had agreed to act as guardian and has done something in the suit to show that he accepted his appointment as a guardian, the mere fact some formalities were overlooked or not observed, or there was no formal order of appointment, would not vitiate the proceedings or would not affect the result of the suit, provided there has been no prejudice to the minor. In Shiv Baran Singh (supra), the minor was represented by his mother and it was held that absence of a formal order of Court appointing guardian shall not vitiate the proceeding unless prejudice is shown to have been caused. Shiv Baran Singh (supra) had followed the decision of Brij Kishore Lal (supra). 29. In Nirmal Chandra Ray (supra), the suit was filed by the minors, who were not represented by their mother, who was their natural guardian, but by their brother who was also a defendant in the suit. In the above circumstances, it was held that there was no representation of the minor. 30. In the instant case, the minors are represented by their mother. The minors father had also expired. Order 32 Rule 4 CPC provides that any person who is of a sound mind and has attained majority may act as next friend of a minor or as his guardian in a suit subject to the conditions that interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian in the suit, a plaintiff. 31. The words, may make such order in the matter as it thinks fit appearing in Sub-Rule 1 of Rule 2 of Order 32 CPC is of wide import and it must be that the said provision empowers the Court to permit the suit instituted by or on behalf of a minor to be continued after taking steps to see that the next friend of the minor is named and brought on record to conduct the suit on behalf of the minor. Order 32 Rule 2 CPC does not provide that only recourse that can be had by the Court in the event of the minor not being represented to have the plaint taken off the file. If the Court thinks fit an alternative order for rectification of the error and for continuance CRP No.29/2017 Page 11 of 12
of the suit can be made. Except the omission of the words next friend it is already noted that the minors are represented by their natural guardian. On the issued raised by the defendant Nos.2 to 9, no preliminary issue, as contemplated under Order 14 Rule 2 CPC can be framed. 32. In view of the above discussion, no case is made out to interfere with the order of the learned trial Court. 33. Accordingly the petition is dismissed. No cost. 34. Registry will send back the lower Court records. J U D G E RK/Madhu/ M. Sharma CRP No.29/2017 Page 12 of 12