Case: Kabari Vs. Shivnath Sharoff

2. The appeals arising out of Special Leave Petition (Civil) Nos. 6912 and 6914 of 1994 which have been preferred against the order of the Division Bench of the Calcutta High Court passed on the Review Application for recalling the order dismissing appeal No. 619 of 1992 arising out of Suit No. 531 of 1981 instituted in the ordinary original civil jurisdiction of the Calcutta High Court. The appeals arising out of Special Leave Petition (Civil) Nos 6254 and 6913 of 1994 are directed against the order passed by the Division Bench of the Calcutta High Court on the Review Application for setting aside the order passed in Appeal No. 410 of 1992 arising out of an order refusing to grant extension of time to effect amendment of plaint in Suit No. 531 of 1981. For the purpose of appreciating the rival contentions of the parties in these appeals, the relevant facts relating to the aforesaid Suit No. 531 of 1981 and two appeals being Appeal Nos. 619 and 410 of 1992 arising out of Suit No. 531 of 1981 are to be noted as hereunder.On April 17, 1993, the plaintiffs filed two special leave petitions before this Court. Special Leave Petition (C) No. 8083 of 1993 was directed against dismissal of the Appeal No. 410 of 1992 arising out of the order refusing to extend the time to effect amendment and Special Leave Petition (C) No. 8084 of 1993 was directed against dismissal of the Appeal No. 619 of 1992 (which arose out of the order of dismissal of Suit No. 531 of 1981). It may be stated here that M/s L.P. Agarwalla & Co. acted as Advocates for the plaintiffs in both the said Special Leave Petitions. The plaintiffs thereafter filed Review Petitions on June 17, 1993 before the Calcutta High Court for recalling the orders dismissing Appeal Nos. 410 of 1992 and 619 of 1992 and M/s L.P. Agarwalla & Co. acted as Solicitors for the plaintiffs/petitioners. It is to be noted here that the plaintiffs did not mention in the Review Applications that this Court had already been moved against the said orders of dismissal of the appeals by filing the aforesaid special leave petitions. The plaintiffs did not make any attempt to get the said special leave petitions take up for hearing. On the contrary, the learned counsel for the petitioners in the said special leave petitions mentioned the matter on several occasions for adjournment. As a result, the special leave petitions were not even listed for hearing on several occasions. It was only after the Review Petitions were allowed by the Calcutta High Court on March 16, 1994, the special leave petitions were allowed to be dismissed as withdrawn on the prayer of the petitioners.

Reasoning:
19. Having considered the facts and circumstances of the case and the orders dismissing the appeals and also the impugned judgment allowing the review applications by the High Court and having given out anxious consideration to the respective contentions of the learned Senior Counsel forcefully placed before us, it appears to us that the plaintiffs failed and neglected to take proper steps in the carriage of proceedings of the suit. The plaintiffs filed Suit No. 531 of 1981 in the ordinary original civil jurisdiction of the Calcutta High Court. An application for interim injunction was made by the plaintiffs for restraining the defendants, namely, the vendors of the suit property from dealing with or disposal of the suit premises and on such application, an ad interim order was passed in favour of the plaintiffs. On July 20, 1981, the interlocutory application appeared as New Motion when the defendants appeared and submitted before the High Court that the suit premises had already been transferred to a third party, namely, M/s Kabari Pvt. Ltd. The defendants (vendors) also disclosed to the Court that by four separate deeds of conveyance all dated July 16, 1981, the suit premises had been conveyed to M/s Kabari Pvt. Ltd. As the property in question had been conveyed prior to the institution of the suit, the plaintiffs felt the need to implead M/s Kabari Pvt. Ltd. also as a defendant in the said suit and they made an application for amendment of the plaint for incorporating facts not pleaded and also for moulding the prayer. As far back as in July 1982, the Court, after hearing the parties, allowed an application for amendment of the plaint and restrained M/s Kabari Pvt. Ltd. from alienating or encumbering the disputed premises. Pursuant to the leave granted for amendment of the plaint, a writ of summons was directed to be issued on July 14, 1982 to M/s Kabari Pvt. Ltd. It may be noted here that M/s Kabari Pvt. Ltd. instituted a suit for eviction of the plaintiffs in the Court of learned Subordinate Judge at Alipore because the plaintiffs were in possession of the disputed property as tenants. In view of the pendency of the said Suit No. 531 of 1981 in the ordinary original civil jurisdiction of the Calcutta High Court wherein the purchaser M/s Kabari Private Limited was restrained from alienating and encumbering the disputed property, the suit for eviction was also transferred to the High Court. Such suit is also pending in the High Court.20. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s Kabari Pvt. Ltd. is required to be set aside. Otherwise no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance.21. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was no occasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for not taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were not only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasions but even then application for extension of time for effecting amendment was not made by the plaintiffs immediately. It is only on October 10, 1991, such an application was moved in Court but such application was rightly dismissed by the Court on March, 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in contending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did not take diligent steps.22. The plaintiffs also did not change their solicitors even when the suit was dismissed. On the contrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The contention of the learned counsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does not appear to be ill founded. It did not appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals, the plaintiffs, as a last resort, filed special leave petitions before this Court and did not think of filing the review applications.23. Considering the facts of the case, we have no hesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they could come to know about some relevant facts which could not be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at no point of time, the plaintiffs intended to change the solicitors and the said solicitors were retained not only for the purpose of preferring the appeals but they continued to act as solicitors of the plaintiffs till appeals were dismissed on contest. The contention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors, in an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts could be known to the plaintiffs if they had intended to know such facts seriously. There was also no impediment to change the solicitors earlier. In the facts of the case, it appears to us that there was no genuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals.24. In our view, there is force in the contention of the learned counsel for the appellants that the expression ``from which an appeal is allowed appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken.