Rameshwar Mandir Committee vs Shri. Krishna Bahadur Chettri

Meenakshi Madan Rai, J.—The impugned Order and Decree was passed by the Learned District Judge, South Sikkim at Namchi, in Title Suit No. 02 of 2013, on 18-09-2014, based on a Compromise Petition dated 30-07- 2014, filed by the Respondents No. 1, 2, 3, 4 and 5 herein, who were the Plaintiff and Defendants No. 1 to 4 respectively, before the Learned Trial Court. In terms of the Compromise Petition the suit property was divided equally amongst the Respondents No. 1 to 5. The Appellant who was the Defendant No. 5 before the Learned Trial Court assails both in this Appeal.

Before the Learned Trial Court, the case of the Plaintiff was that, one Harka Maya Chettri, the grandmother of the Plaintiff, the Defendants No. 1 to 3, and the mother of Defendant No. 4, was the owner in possession of land measuring about 18.50 acres recorded in different plot numbers, situated in Kerabari Block, Malbasey, South Sikkim. After her death in July 1965, the Plaintiff and the Defendants No. 1 to 4 became owners of the property in equal shares. That, Harka Maya Chettri during her lifetime had gifted away 2.65 acres of land from the above-mentioned property in favour of the Defendant No. 5 the Appellant herein, for construction of a Temple. As per the Plaintiff, Defendant No. 5 is now trying to encroach upon the entire suit property claiming to be the owner. It was also alleged that Defendant No. 5 had in fact sold land to the Food Corporation of India for a sum of Rs. 2,00,00,000/- (Rupees two crores) only, but due to an order of status quo, the registration of land could not be completed. It was further alleged that the land records were surreptitiously changed from the name of the Harka Maya Chettri to the name of the Defendant No. 5 when in fact the gifted portion was only 2.65 acres. The Plaintiff apprehending disposal of the portions of the suit land by other parties, the same being unpartitioned at that relevant time, approached the Court claiming ⅕th share of the total land belonging to Harka Maya Chettri except the gifted area of 2.65 acres. The prayers of the Plaintiff are detailed in Paragraph 15 of the amended Plaint dated 21-10-2013.

The Defendants No. 1 to 4 filed a Joint Written Statement, inter alia, admitting the averments in the Plaint to the extent that the land belonged to Late Harka Maya Chettri and 2.65 acres was gifted to Rameshwar Mandir Committee which had in fact sold the land to Food Corporation of India and the land records had been changed from the name of Harka Maya Chettri to the name of Defendant No. 5 without their knowledge. They also admitted that they are in joint possession of the suit property, i.e., Plaintiff and the Defendants No. 1 to 4. However, they denied that efforts were being made by them to dispose of the property without the knowledge of the Plaintiff and prayed that the Court partition the property as per Law declaring the share of the Plaintiff and the Defendants No. 1 to 4.

The Defendant No. 5 failed to file any Written Statement and as records would reveal on 28-12-2013, one Milan Chettri claiming to be the Secretary of Defendant No. 5 appeared before the Court and sought time to engage a Counsel. On the next date so fixed, i.e., 05-02-2014, the Defendant No. 5 failed to appear and file its Written Statement, consequently, the Learned Trial Court ordered that the Defendant No. 5 shall be proceeded ex parte. Following this Order, on 26-02-2014 as the parties sought to explore the possibilities of an amicable settlement, the matter was forwarded to the Lok Adalat in South Sikkim at Namchi and the parties directed to appear therein. On 14-05-2014, the matter was returned unresolved from the Lok Adalat to the Court, wherein the Plaintiff and the Defendants No. 1 and 2 appeared. On 24-06-2014 the next date fixed, the Plaintiff appeared so did the Defendants No. 1 to 4, but the Defendant No. 5 was proceeded ex parte. On 30-07-2014, a Joint Application was filed by the Plaintiff and the Defendants except the Defendant No. 5 to the effect that they had settled the matter at their level. By its Order dated 01-08-2014, the Court noted that the main parties had settled the matter mentioning the terms and conditions of settlement. On the same day, it was, inter alia, prayed by Counsel for the Defendant No. 1 to 4, that, 2.65 acres of land gifted to the Defendant No. 5 by Late Harka Maya Chettri be excluded from the settlement. The Learned Trial Court after hearing the submissions and being satisfied that, the concerned Application had been made voluntarily, passed a Preliminary Decree, and appointed an Advocate Commissioner for demarking the concerned property as per the share of the parties, with the assistance of an Amin from the District Collectorate, South, directing the Amin to submit his Report by the next date. Subsequently, after all necessary steps were taken, on 18-09-2014, in terms of the Commissioner''s Report, the Final Decree of partition was drawn.

In Appeal, one of the arguments raised before this Court by Learned Senior Counsel for the Appellant was on the point of limitation. On this count, he relies on Paragraph 3 of the amended Plaint and submits that admittedly a portion of the suit land was gifted away in the year 1962. That, the Surveyor''s Report reveals that as per the old land records of 1951-52 the plots of land bearing plot nos.163, 164, 166 and 168 measuring a total area of 5.50 acres is recorded in the name of Rameshwar Mandir at Kerabari Block, South Sikkim (Page 15 of the Paper Book). That apart, it was also submitted that the Survey Operations carried out in 1979-80 indicate that 5.50 acres of land was recorded in the name of Mandir Committee (as evident from Page 21 of the Paper Book). Thus, the suit is barred by limitation. Reliance was placed on the decision in Khatri Hotels Private Limited and Another v. Union of India and Another, AIR (2011) SC 3590 vide which the Hon''ble Apex Court while discussing Article 58 of the Limitation Act, 1963 and Article 120 of the Indian Limitation Act of 1908, inter alia, held that if a Suit is based on multiple courses of action, the period of limitation would begin to run from the date when the right to sue first accrues. It was clarified that successive violation of the right will not give rise to fresh cause and the Suit will be liable to be dismissed, if it is beyond the period counted from the day when the right to sue first accrued.

Close on the heels on this argument, was the contention that of no cause of action arises against the Appellant as by their own admission, the landed property in dispute is in the name of the Appellant not only in the year 1962, but also as evident from the records of 1950-51 (based on Page 15 of the Paper Book) as already argued herein above.

In the third limb of his argument, it was pressed that Defendant No. 5 could not have been proceeded ex parte as the date was not fixed for hearing and the Defendant No. 5 was only required to file Written Statement on the said date. Reliance was placed on the decisions of the Hon''ble Apex Court in Jaspal Singh v. Municipal Corporation of Delhi, AIR (1972) SC 230 and Sangram Singh v. Election Tribunal, Kotah and Another, AIR (1955) SC 425.

Following this argument was the contention that, the Court could not have accepted the Compromise Decree under Order 23, Rule 3 of the Code of Civil Procedure, 1908 (for short "CPC") since although the Defendant No. 5 was arraigned as a party, he had not signed on the Compromise Decree. It was also expostulated that in view of the fact that there is no cause of action, the Plaintiff has no locus standi to file the instant Suit, reliance for which was placed on M/s. Kusum Ingots and Alloys Ltd. v. Union of India and Another, AIR (2004) SC 2321 and Most. Rev. P.M.A. Metropolitan and Others, etc. etc. v. Moran Mar Marthoma and Another etc., etc., AIR (1995) SC 2001.

Learned Senior Counsel took the stand that the Learned Trial Court had no jurisdiction to try the Suit as the relevant Authority to consider such matters would be the Ecclesiastical Department in terms of Notification No. 59/HOME/98 dated 26-10- 1998 issued by the Government of Sikkim, Home Department. Besides which no right accrues to the Plaintiff and the Defendants No. 1 to 4 as no document has been shown to prove that Harka Maya Chettri owned the land. For this, reliance was placed in Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, (2012) 8 SCC 706. Invoking the decision in Maya Devi v. Lalta Prasad, AIR (2014) SC 1356 it was urged that even if the impugned Order and Decrees are ex parte, the Plaintiff is required to prove its case which has not been done in the instant matter. It was contended that besides the above arguments, Milan Chettri was not authorised by the Defendant No. 5 to appear in the Court and it was not verified by the Learned Court as to whether Notice had been served correctly. Hence, the impugned Order and Final Decree of the Learned Trial Court be set aside.

Per contra, the arguments advanced by Learned Counsel for the Respondents No. 1 to 5 pertained to Section 97 of the CPC in that in the instant case the Final Decree is based on the Preliminary Decree, therefore, when the Law does not allow the aggrieved party to dispute the correctness of the Preliminary Decree, then what could be the stand of the Appellant in the matter concerning the Final Decree. In this regard, reliance was placed in Mool Chand and Others v. Dy. Director, Consolidation and Others, AIR (1995) SC 2493 and Venkatrao Anantdeo Joshi and Others v. Malatibai and Others, (2003) 1 SCC 722. On the point raised by the Appellant that notice was not served on the correct representatives of the Appellant, it was argued that since the Appellant Committee is an unregistered Committee, therefore, the question of serving Notice on its representative does not arise.

Having heard the arguments of Learned Counsel at length, I have carefully perused the records of the Learned Trial Court as well as the impugned Order and Decree and given due consideration to the arguments.

Firstly, dealing with the argument that the Defendant No. 5 could not have been proceeded ex parte as the date was not fixed for hearing, we may beneficially refer to the decision in Jaspal Singh (supra)2, where the Hon''ble Apex Court while discussing Order 17, Rule 2 of the CPC, inter alia, discussed the term "hearing of the suit" and held as follows;

"4. �������.. A consideration of Order 17, Rule 2 fortifies me in the view expressed above. That provision is:-

"2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit."

I find that the provisions contained in O.9 of the Code have been made expressly applicable to the subsequent dates to which the hearing of the suits may have been adjourned. ����. �������������.����������

The hearing of the suit would be on a date to which it may have been adjourned to be taken up by the Court for applying its mind to it. Where the suit stands adjourned for merely acquiring the knowledge as to what has happened in a pending transfer application moved before the District Judge, then it cannot be held that the adjourned date would be for hearing of the suit. No authority has been cited before me which may persuade me to any other view."

[emphasis supplied]

The above extract of the Judgment elucidates in no uncertain terms as to what "hearing of the suit" means. That having been clarified, we may now turn to the provisions of Order 9, Rule 6 which reads as follows;

"6. Procedure when only plaintiff appears.-(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;

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This provision thus lays down that, an order that the Suit be heard ex parte shall be made, inter alia, when the Suit is called "for hearing". As to what would be the first hearing of the Suit, we may usefully refer to Order 14, Rule 1 (5) of the CPC which reads as follows:-

"1. Framing of issues.-(1) ������

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(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 or Order 10 and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

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From a reading of this Section, it is manifest thus that the first hearing of the Suit is the day of settlement of issues.

On perusing the Order of the Learned Trial Court dated 05-02-2014, it is clear therein that the date was fixed for filing of Written Statement. The Order, inter alia, reads as follows;

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Date is fixed for filing of Written Statement by the Defendant No. 5.

It seems the Defendant No. 5 is not interested in contesting the matter which is clear from its absence despite the knowledge about today''s date. It shall, accordingly, be proceeded ex parte.

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Thus, it is clear that the date was fixed only for filing of Written Statement and not for hearing, therefore, as apparent from the decision of Jaspal Singh (supra)2, it was not the stage for the Court to proceed ex parte against the Defendant No. 5. The Defendant can be proceeded ex parte only from the day the matter is fixed for hearing and not for filing of Written Statement or other miscellaneous matters. Hence, there should be no further quandary on this aspect.

That having been said, it is the constant refrain of the Appellant that Milan Chettri did not represent them. In this context, we may first refer to the Order of this Court in I.A. No. 01 of 2015 where it was noticed that Defendant No. 5 was given adequate Notice. However, the next question that arises even while agreeing with the submission of Learned Counsel for the Respondents that it was not possible to summon everyone from the Committee, being an unregistered Committee, but it was incumbent on the Plaintiff/Respondent No. 1 to have verified whether Milan Chettri was in fact the representative of the Mandir Committee since although unregistered, which is a different legal point altogether, it is not denied that they had a functional Executive Body. One cannot also overlook the fact that in the Plaint although the Mandir Committee has been arraigned as Defendant No. 5 no representative of the Committee has been mentioned. The fact that a Committee, Company, Body, Trust, etc., is required to be represented by a person is no more res integra. The Plaintiff has thus erred on this count. The Learned Trial Court for its part has failed to verify the authenticity of the representation of Milan Chettri. It may be argued that no such provisions exists in the Code but it must be borne in mind that every party in the Court must be given a fair chance to put forth their case and the Court must be conscious of the principles of natural justice and bear in mind the object of doing substantial justice to all parties leaving no room for perpetuating illegality, whichever party the illegality may be emanating from. It would not be out of place to mention here that as far back as in 1955 the Apex Court in Sangram Singh (supra)3, held that,

"(17) Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

(18) �� But that a law of natural justice exists in the sense that a party must be heard in a Court of law, or at any rate be afforded an opportunity to appear & defend himself, unless there is express provision to the contrary, is, we think, beyond dispute. ��."

It is also evident from the Orders of the Learned Trial Court that no effort has been made to inform the Defendant No. 5 of its decision to forward the matter to the Lok Adalat since the Lok Adalat is independent of the functioning of the Court and an opportunity could have been afforded to the Defendant No. 5 to appear therein. Needless to mention that the Orders do not reflect as to whether Defendant No. 5 appeared before the Lok Adalat.

Thus, in conclusion, having considered the facts and circumstances of the matter and in view of the discussions herein above, without delving into the merits of the case, the impugned Order and Decree of the Learned Trial Court are set aside and the Appeal disposed of with the following directions;

(i) The matter is remanded to the Court of the Learned District Judge, South Sikkim at Namchi, for de novo trial from the stage of issuance of summons, and is to be disposed of within a period of eight months from the date of receipt of this Judgment.

(ii) Summons to the Appellant be issued in terms of the provisions of the CPC, due consideration being paid to the provisions of Order 1, Rule 8 .

(iii) The Title Suit be restored to its original number in the File of the Learned District Judge, South Sikkim, at Namchi.

(iv) It is reiterated here that the remarks and observations made in this Judgment shall not be construed as expressions of this Court on the merits of the case.

No orders as to costs.

Copy of this Judgment be forwarded to the Learned Trial Court for information and compliance.

Records of the Learned Trial Court be remitted forthwith.