Mahadeo Lal Khemka Vs. Dwarika Prasad Khemka & Ors.
EmailAppeal: Civil Appeal No. 3299 of 1988.
(Arising out of SLP (C) No. 5696 of 1984)
(Arising out of SLP (C) No. 5696 of 1984)
Petitioner: Mahadeo Lal Khemka
Respondent: Dwarika Prasad Khemka & Ors.
Apeal: Civil Appeal No. 3299 of 1988.
(Arising out of SLP (C) No. 5696 of 1984)
(Arising out of SLP (C) No. 5696 of 1984)
Judges: RANGANATH MISRA & M.N.VENKATACHALIA, JJ.
Date of Judgment: Sep 20, 1988
Head Note:
SUIT FOR PARTITION
Suit decreed by trial court after rejecting the plea of previous partition – Appeal before the High Court dismissed for non-compliance – First appeal not restored – Appellant allowed to institute proceedings either by partition or for dissolution of the firm at Calcutta which had been excluded from partition by the trial court – Defendants not to take the plea of res judicata as a bar to such action.
JUDGEMENT:
O R D E R
1. Special leave granted.
2. Heard Mr. F.S. Nariman, counsel for the appellant and Mr. Shankar Ghose, counsel for the respondents, It is difficult for us to dispose of the matter without making a brief reference to the background in which the matter has been brought before this court. The appellant was one of the defendants in a suit for partition which was decreed by the Trial Court after rejecting the defence plea of previous partition. In the first appeal before the Patna High Court, there was a demand for payment of printing charges. The appellant paid the money to his Advocate’s Clerk who passed on a receipt to him but the same was not deposited within the time granted by the court and extension was obtained on a false plea that funds had not been received though it had been remitted by money order. The High Court called upon the counsel for the appellant to file an affidavit that the money had already been remitted but that affidavit was not filed and the appeal was dismissed by non-compliance of the order. Later on, an affidavit to the effect that the money had not been paid earlier and was being paid to the counsel was obtained from the appellant’s son who had obviously not been told by his father that the money has already been paid under a receipt. This action on the part of the appellant was not at all justified.
3. Having failed to have the restoration of the first appeal before the High Court on the basis of an application for recalling the order, the special leave petition has been filed before this Court.
4. After hearing learned counsel for the parties we are of the view that ends of justice require that the order of the Trial Judge which has now been affirmed by the High Court by dismissal of the appeal should be confined to the properties which formed the subject-matter of the suit excepting the firm at Calcutta by the name of Srilal Dwarika Prasad. We may point out that the trial court itself recorded the following finding in regard to the firm:-
“so I find that the plaintiffs are entitled for partition as claimed but this partition also granted right to the defendant to partition the properties of Shrilal Dwarika Pd. Firm because it is the assertion of the defendant in his evidence and additional written statement that this firm has grown from joint family property. So onus is on the plaintiff to disprove this assertion of the defendant but plaintiff (P.W.6) in his evidence has stated that since this suit is not for that property he did not file Bhai Khata of that firm and he simply denied that firm is not the joint family property. Then the onus shifts on the defendant to establish as to how this Calcutta business has got own from the joint family property. But neith er the plaintiff nor defendant filed any document regarding the firm Srilal Dwarika Prasad and so at present it is very diffi cult to partition that firm of Calcutta because no documentary evidence is forth-coming. The burden is on the defendant to establish the same. But only on the basis of circumstantial evidence property can not be partitioned. As such the property cannot be partitioned. As such the property of Calcutta Srilal Dwarika Pd. firm is excluded from partition in the present suit.”
5. We are of the view that even if the first appeal is not restored, the appellant’s interest if any, relating to the firm at Calcutta should not be prejudiced and notwithstanding what has been said in the judgment of the Trial Judge, in the suit for partition, it shall be open to him to institute appropriate proceedings either by partition or for dissolution of the firm as he may be advised and the defendants shall be free to raise all tenable defences except that the plea of res judicata on the basis of the partition decree as a bar to such action shall not be permitted. The appeal is disposed of accordingly. There shall be no order for costs.
1. Special leave granted.
2. Heard Mr. F.S. Nariman, counsel for the appellant and Mr. Shankar Ghose, counsel for the respondents, It is difficult for us to dispose of the matter without making a brief reference to the background in which the matter has been brought before this court. The appellant was one of the defendants in a suit for partition which was decreed by the Trial Court after rejecting the defence plea of previous partition. In the first appeal before the Patna High Court, there was a demand for payment of printing charges. The appellant paid the money to his Advocate’s Clerk who passed on a receipt to him but the same was not deposited within the time granted by the court and extension was obtained on a false plea that funds had not been received though it had been remitted by money order. The High Court called upon the counsel for the appellant to file an affidavit that the money had already been remitted but that affidavit was not filed and the appeal was dismissed by non-compliance of the order. Later on, an affidavit to the effect that the money had not been paid earlier and was being paid to the counsel was obtained from the appellant’s son who had obviously not been told by his father that the money has already been paid under a receipt. This action on the part of the appellant was not at all justified.
3. Having failed to have the restoration of the first appeal before the High Court on the basis of an application for recalling the order, the special leave petition has been filed before this Court.
4. After hearing learned counsel for the parties we are of the view that ends of justice require that the order of the Trial Judge which has now been affirmed by the High Court by dismissal of the appeal should be confined to the properties which formed the subject-matter of the suit excepting the firm at Calcutta by the name of Srilal Dwarika Prasad. We may point out that the trial court itself recorded the following finding in regard to the firm:-
“so I find that the plaintiffs are entitled for partition as claimed but this partition also granted right to the defendant to partition the properties of Shrilal Dwarika Pd. Firm because it is the assertion of the defendant in his evidence and additional written statement that this firm has grown from joint family property. So onus is on the plaintiff to disprove this assertion of the defendant but plaintiff (P.W.6) in his evidence has stated that since this suit is not for that property he did not file Bhai Khata of that firm and he simply denied that firm is not the joint family property. Then the onus shifts on the defendant to establish as to how this Calcutta business has got own from the joint family property. But neith er the plaintiff nor defendant filed any document regarding the firm Srilal Dwarika Prasad and so at present it is very diffi cult to partition that firm of Calcutta because no documentary evidence is forth-coming. The burden is on the defendant to establish the same. But only on the basis of circumstantial evidence property can not be partitioned. As such the property cannot be partitioned. As such the property of Calcutta Srilal Dwarika Pd. firm is excluded from partition in the present suit.”
5. We are of the view that even if the first appeal is not restored, the appellant’s interest if any, relating to the firm at Calcutta should not be prejudiced and notwithstanding what has been said in the judgment of the Trial Judge, in the suit for partition, it shall be open to him to institute appropriate proceedings either by partition or for dissolution of the firm as he may be advised and the defendants shall be free to raise all tenable defences except that the plea of res judicata on the basis of the partition decree as a bar to such action shall not be permitted. The appeal is disposed of accordingly. There shall be no order for costs.
