Sanjib Saha & Anr. vs Andrew Yule And Co. Ltd

Ananya Bandyopadhyay, J.:-

The plaintiff seeks leave to file a Judges’ Brief of Documents and for appointment of a Commissioner for recording the evidence of the plaintiff’s witnesses and their cross-examination.

The Learned Counsel appearing for the plaintiff submits that the suit has remained pending for several years despite the orders passed upon consent on 22^nd May, 2003 and 21^st May, 2009. The defendant had undertaken obligations relating to payment of occupational charges and construction upon the demised premises. The defendant thereafter ceased payment of occupational charges from December, 2019. By the order dated 21^st May, 2026 passed in APOT No. 78 of 2026, the Division Bench struck off the defence of the defendant in consequence of the defaults recorded in the orders dated 22^nd May, 2003 and 21^st May, 2009.

The Learned Counsel submits the plaintiff thereafter sought to proceed with the suit in terms of the liberty recognised by the order of the Hon’ble Supreme Court dated 17^th December, 2024. It was contended, after the said order of the Hon’ble Supreme Court, the defendant did not seek any independent adjudication of the issue raised in G.A. No. 8 of 2023. According to the plaintiff, the subsequent order of the Division Bench dated 21^st May, 2026 materially altered the procedural position by striking off the defence, and the plaintiff should now be permitted to proceed towards adjudication of the suit.

The Learned Counsel appearing for the defendant submits the present application cannot proceed at this stage. According to him, the question raised in G.A. No. 8 of 2023, viz, whether the suit had ceased to survive as an adjudicable proceeding, was expressly directed by the Division Bench to be tried as a preliminary issue before the suit proceeded any further. Reliance is placed upon the order dated 10^th April, 2024 passed in APOT No. 68 of 2024, the subsequent orders dated 24^th April, 2024 and 18^th February, 2025 passed by this Court, the order of the Hon’ble Supreme Court dated 17^th December, 2024 and the order dated 21^st May, 2026 passed by the Division bench of this Court in APOT No. 78 of 2026.

The Learned Counsel for the defendant has also relied upon U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Ram Saroj & Ors., reported at (2007) 2 SCC 138, and Prabhat Pan & Ors. v. State of West Bengal & Ors., reported at AIR 2015 Cal 112 (FB), in support of the principles of judicial discipline and the binding effect of an operative direction of a superior Court. Reliance has further been placed upon Asma Lateef & Anr. v. Shabbir Ahmad & Ors., reported at (2024) 4 SCC 696, in relation to the stage at which a question concerning jurisdiction is to be addressed.

The controversy arising from the rival submissions is confined to the sequence in which the pending proceedings are required to be conducted. The immediate question is whether the plaintiff can proceed with the substantive trial, including recording of evidence upon the issues arising in the suit, without first having the question raised in G.A. No. 8 of 2023 determined.

The order dated 10^th April, 2024 passed by the Division Bench in APOT No. 68 of 2024 is imperative. The Division Bench directed the question raised in G.A. No. 8 of 2023 should be tried as a preliminary issue in the suit on the basis of the application and the affidavits exchanged thereto, before the suit proceeded any further. The Division Bench further recorded: “The Learned Single Judge may direct documents to be disclosed relating to that issue only, invite evidence to be adduced in court or by commission, whichever the court deems fit and proper and decide the question as soon as possible.”

The Division Bench thereafter recorded, depending upon the decision on the preliminary issue, suitable directions could be made either disposing of the suit or directing that the suit be tried and determined on all issues arising therein.

The language of the Division Bench is expressively distinct. The sequence of adjudication was prescribed by the Division Bench; the mode of receiving evidence, if necessary, was left to the discretion of the learned Single Judge. The order permitted evidence to be adduced either in Court or by commission, according to what the learned Single Judge deemed fit and proper. The present prayer for appointment of a Commissioner must therefore be examined within that precise framework.

The order dated 24^th April, 2024 recorded the aforesaid direction. The order dated 18^th February, 2025 again recognised the jurisdictional question was to be tried as a preliminary issue at the first instance. The order dated 12^th December, 2025, while dealing with the claim for occupational charges, also recorded the existence of the direction for determination of the maintainability issue as a preliminary issue.

The principle of judicial discipline has direct application. In U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Ram Saroj & Ors., reported at (2007) 2 SCC 138, the Supreme Court stated in paragraph 26: “Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself….”

The Supreme Court further held that when the decision of a coordinate Bench of the same High Court is brought to the notice of another Bench, it is to be respected and is binding. The principle is worthy of recognition where the Court is dealing not merely with a proposition of law of significance in an earlier decision, but with a specific procedural direction of the Division Bench in the very suit which remains pending before this Court. The direction dated 10^th April, 2024 has neither been recalled nor expressly varied.

The Full Bench decision in Prabhat Pan & Ors. v. State of West Bengal & Ors., reported at AIR 2015 Cal 112 (FB), also requires notice. The Full Bench observed: “A judgment is an authority for the legal position that it expressly decides and not anything else which is deemed to have been considered or decided.”

The Full Bench explained that the ratio of a judgment has to be gathered from the judgment read as a whole and in the context in which the question arose. Such principle assumes importance while examining the subsequent order dated 21^st May, 2026 passed in APOT No. 78 of 2026. The Division Bench in that proceeding dealt with the consequence of the defendant’s failure to comply with the monetary obligations recorded in the earlier orders and struck off the defence. The Division Bench was not called upon in that proceeding to adjudicate the question raised in G.A. No. 8 of 2023. No determination was attracted that the suit had ceased to survive as an adjudicable proceeding. Such a determination cannot, therefore, be attributed to the order dated 21^st May, 2026 merely because the procedural position of the defendant thereafter has been altered.

The order dated 21^st May, 2026 consequently requires to be read for what it actually decided. Striking off the defence and determining whether the suit remains maintainable are distinct judicial acts. The former regulates the defendant’s participation in the suit; the latter concerns the competence and continuance of the proceeding itself. The order dated 21^st May, 2026 decided the former question and did not decide the latter.

The order of the Hon’ble Supreme Court dated 17^th December, 2024 does not lead to a different conclusion. The Hon’ble Supreme Court declined interference with the order of the Division Bench and permitted the Learned Single Judge to proceed with the suit in accordance with law, having regard to the developments which had taken place during its pendency. The Hon’ble Supreme Court did not adjudicate the question raised in G.A. No. 8 of 2023 and did not expressly recall or vary the direction dated 10^th April, 2024 concerning the preliminary issue. The liberty to proceed in accordance with law has therefore to be read along with the operative directions already governing the suit.

The decision of the Supreme Court in Asma Lateef & Anr. v. Shabbir Ahmad & Ors., reported at (2024) 4 SCC 696, bears upon the stage at which a jurisdictional objection requires adjudication. In paragraph 38, the Supreme Court observed at paragraph 49: “……the question of jurisdiction has to be determined at the commencement and not at the conclusion of the enquiry.”

The proposition in Asma Lateef (supra) does not prescribe an inflexible procedure for every question touching jurisdiction. In the present proceeding, the sequence arises more specifically from the order dated 10^th April, 2024 of the Division Bench. Asma Lateef (supra) nevertheless reinforces the rationale for addressing the competence of the Court to proceed before embarking upon substantive adjudication.

The submission that the order dated 21^st May, 2026 has rendered the preliminary issue incapable of further consideration cannot, therefore, be accepted. The striking off of the defence did not constitute an adjudication of the issue raised in G.A. No. 8 of 2023. The subsequent appellate order altered the procedural position of the defendant; it did not alter the specific direction of the Division Bench dated 10^th April, 2024 concerning the sequence of adjudication.

The plaintiff’s prayer for a Judges’ Brief of Documents can accordingly be considered, but the documents at this stage must relate to the preliminary issue. The Division Bench itself contemplated disclosure of documents “relating to that issue only”. Documents directed exclusively towards the substantive issues of the suit need not be introduced into the present evidentiary exercise before the preliminary issue is determined.

The prayer for appointment of a Commissioner requires separate consideration. The order dated 10^th April, 2024 expressly permitted evidence to be adduced either in Court or by commission, leaving the choice to the Learned Single Judge. The Court is therefore required first to determine whether oral evidence is necessary for adjudication of the preliminary issue. If such evidence is considered necessary, the Court shall thereafter determine whether the evidence should be recorded in Court or through a Commissioner. The proposed Commission cannot, at this stage, become an avenue for recording evidence upon the substantive issues of the suit.

The distinction is important. The present order does not deny the plaintiff the procedural opportunity contemplated by the order dated 10^th April, 2024. It merely preserves the sequence directed by the Division Bench and confines any evidentiary exercise at this stage to the preliminary issue. The order dated 21^st May, 2026 striking off the defence shall continue to operate according to its terms. Nothing in the present order restores any part of the defence already struck off.

The question raised in G.A. No. 8 of 2023 shall be tried and determined as the preliminary issue before the suit proceeds upon its substantive issues, in terms of the order dated 10^th April, 2024 passed by the Division Bench in APOT No. 68 of 2024.

The plaintiff shall be at liberty to file a Judges’ Brief of Documents confined to documents relevant to the aforesaid preliminary issue.

The Court shall thereafter determine whether oral evidence is necessary for adjudication of the preliminary issue. If evidence is considered necessary, the Court shall determine whether such evidence is to be recorded in Court or through a Commissioner, in exercise of the liberty expressly contained in the order dated 10^th April, 2024.

Any evidence recorded before determination of the preliminary issue shall remain confined to matters relevant to G.A. No. 8 of 2023. Evidence relating to the substantive issues of the suit shall not be recorded at this stage.

The order dated 21^st May, 2026 passed in APOT No. 78 of 2026 striking off the defence of the defendant shall continue to operate. Nothing contained in the present order shall revive or enlarge the defence already struck off.

Upon determination of the preliminary issue, appropriate directions shall follow in accordance with the result thereof and the order dated 10^th April, 2024.

G.A. No. 10 of 2026 is accordingly disposed of.

Next date be fixed on 14^th December, 2026.