Case: Official Trustee Of West Bengal Vs. Stephen Court Ltd

as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application. 45. In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of estoppel could not be restricted to a matter in issue, stating : "The rule laid down in Hawlett v. Tarte (10 C.B. (N.S.) 813 was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel" [See also Humphries v. Humphries 1910 (2) KB 531] 46. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf and Others [(2006) 7 SCC 756] , this Court held : "While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict." 47. It was further held : "The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. [See also Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (1981) 1 All ER 897.]" 48. Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation. 51. In Pawan Kumar Gupta v. Rochi Ram Nag Deo [(1999) 4 SCC 243] , it is stated : "The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata." 52. [See also Ferro Alloys Corporation Limited and Another v. Union of India and Others (1999) 4 SCC 149 ].

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. Peter Paul owned merely a piece of land. It executed a deed of lease for a period of 99 years. The lessor, therefore, was entitled to the only rent payable in terms of the said 1919 deed of lease.Even the assignment was required to be made by reason of a registered document, it is beyond any cavil of doubt that as the Official Trustee had all along been receiving stipulated monthly rent from the Company, it was, thus, admitted and acknowledged to be the lessee in respect of the leasehold. The Official Trustee not only accepted the rent, but also allowed the Company to raise a huge structure. It, therefore, accepted the Company as the lessee in respect of the said property.23. The Company, therefore, for all intent and purport became a lessee under the Official Trustee. Although in a case of this nature, applicability of Section 53-A of the Transfer of Property Act may not be of much significance, but whether as an assignee of the leasehold or as a monthly tenant, the Company was entitled to protect its possession. Rightly or wrongly, the question of renewal of the said lease for a further period of sixty years came to be mooted. The offer of the Company was that at the end of the period of lease, the property would vest in the Official Trustee. It is again beyond any doubt or dispute that the Official Trustee could have granted a lease. It could have also extended the period of lease. It could have furthermore entered into a new arrangement with the lessee in possession. It was, therefore, within the province of the Official Trustee to deal with the property in any manner, he thought it fit, subject, of course, to any direction which could be issued by the High Court in exercise of its jurisdiction under Section 302 of the Succession Act and Section 13 of the 1913 Act. The Official Trustee being a statutory authority would be presumed to be aware and understand the provisions of the said Act. It, therefore, instead of dealing with the matter itself asked the Company to file an appropriate application, pursuant whereto the application was filed, no jurisdictional question was could be raised. The Companys locus to maintain the application was not questioned. True an affidavit in opposition had been filed, but it is equally true that therein certain suggestions were made; one of them being enhancement in the quantum of rent. The High Court passed an order enhancing the quantum of rent, which was beneficial to the Officer Trustee. It accepted the same without any demur. Benefit of the order was, thus, taken. It was only at its suggestion, a valuer was appointed. The recommendations of the valuer as regards the quantum of monthly rent which would be payable at the end of the period of lease was not questioned. The High Court also accepted the same. The order of the High Court dated 17.04.1984 must be judged in the aforementioned factual backdrop. The High Court for all intent and purport accepted the suggestions of the Official Trustee.24. Indisputably, again no appeal was preferred therefrom. Mr. Ray made a faint suggestion that the said order being not a judgment within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court was not appealable. Even that be so, an application before this Court under Article 136 of the Constitution of India would lie. No such application was also filed. It was, thus, allowed to attain finality. The parties acted thereupon. The Official Trustee accepted the said judgment and executed a deed of lease strictly in terms thereof.It is true, as was submitted by Mr. Ray, that this Court therein observed that the Official Trustees Act does not envisage any application moved by a person other than the one who was beneficially interested in any trust property or any trustee thereof, but no occasion arose therein for consideration as to what would be the true meaning and purport of the expression "beneficially interested" in the trust property.28. We have noticed hereinbefore that this Court opined that an objector who was a tenant on the ground floor of the said building adjacent to the vacant plot of land of appellant trust had locus standi to Raise anThe decision in Committee of Management of Pachaiyappas Trust (supra) therefore, in our opinion, does not assist the appellant. In that case, the order of the High Court did not attain finality and had not been accepted.34. The principles of estoppel, waiver, acquiescence or res judicata provide to procedural matter. The said provisions are applied to put an end to a subsequent litigation. As would appear from the decisions made thereafter, if the order of the 1984 order of the High Court was not a nullity, the same would apply.35. A distinction indisputably exists between an order which is wrong or void on the one hand, and which having been passed by a court lacking inherent jurisdiction and, thus, being a nullity on the other.In our opinion, the application under Section 302 of the Succession Act by the Company was maintainable and, thus, the High Court was competent to entertain the same.41. An Originating Summons is maintainable under certain situations, as provided for in Chapter XIII of the Calcutta High Court Original Side Rules. The High Court in exercise of the said jurisdiction could not adjudicate as to whether an earlier order passed by it was null and void and was, thus, liable to be set aside. What was questioned by the Official Trustee by taking out an Originating Summons was in effect and substance not only the order passed by the High Court itself but also its own act which had attained finality.42. We have noticed hereinbefore that the Official Trustee dealt with the property in exercise of its jurisdiction to administer the trust property, in respect whereof the High Court could issue directions from time to time. Once it is held that the Official Trustee either on its own or under the directions of the High Court could grant extension of lease, its action can be subjected to challenge only in an appropriate proceeding. The Official Trustee no doubt holds a position of trust but no finding of fact has been arrived that it had misused its position. The High Court in passing its order took all precautions, which were required of it. The High Court accepted all the contentions of the Official Trustee not only by enhancing the quantum of rent payable by the Company, but also appointing a valuer for the purpose of arriving at a reasonable quantum of rent, which might become payable on the expiry of the period of lease.43. It has not been suggested that the Official Trustee was not bound by the said order. It could only take a different stand in the said proceeding. It could not initiate a fresh proceeding provided it was maintainable. Such proceedings would have been maintainable, inter alia, if the dealings by and between the Company and the Official Trustee was founded on or otherwise vitiated by fraud. Even a suit for setting aside an order passed by a court having competent jurisdiction would be maintainable on limited grounds. Only because the order passed by a court is otherwise erroneous or causes a hardship, the same by itself may not be a ground to set aside an order that was validly passed by a court of competent jurisdiction.44. Even otherwise the Official Trustee could not have altered its position. It could not have prevaricated its stand from time to time. It was estopped and precluded from filing a fresh application.Mr. Ray contended that the learned Single Judge did not assign any reason in support of its order. Even if no reason has been assigned, it could have been set aside only by an appellate court. When an order attained finality, it cannot be set aside on the premise that no reason had therefor been assigned.49. It was also not a case where the parties were at issue in strict sense of the term. The Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to contend that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions.50. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of res judicata and in particular that of constructive res judicata shall apply in the aforementioned fact situation.