Swapan Mukherjee With C.R. No. 387 of 2006 Swapan Mukherji & Anr & Ors. v. Indrawati Lal For & Ors.

at the instance of the defendant, petitioner against the first part of the order, whereby and whereunder, an application with a prayer of the defendant to the effect of dismissing the suit on the ground of its becoming infructuous on account of subsequent event has been rejected, the second revision application C.R.No.387 of 2006 filed by the plaintiff-petitioners is directed against the second part of the same order, whereby and whereunder, their application to declare power of attorney allegedly executed by the defendants in favour of Ashok Kumar to be forged has been rejected. Mr. Chittranjan Sinha, learned counsel appearing on behalf of the petitioner in C. R. No. 222 of 2006 with reference to the pleadings on 2 record has submitted that there was no dispute with the plaintiff-opposite party had disposed of the suit property during pendency of the suit and therefore the cause of action to maintain the suit no longer survived with the plaintiff-opposite parties. In this respect reference has been made to paragraph 7 of the civil revision application which reads as follows:- That at this stage, it is “ relevant to state here that during pendency of suit, the plaintiffs and other co-sharers who are performa defendants in the suit have sold their share to the different persons ( stranger ) by way of registered sale deed in the year 2003 and 2004 and accordingly the purchasers came in possession over the same. “ He has further invited attention of this Court towards statement in paragraph No.14 of the counter affidavit wherein the said position has not at all been controverted by the plaintiff- opposite party no.2, while adverting to paragraph 7 of the civil revision application, which reads as follows :- “That the statement ma de in paragraph 7 of this revision petition has to be considered along with other issues which goes to the root of the case as the petitioner-defendant no.1 to 1C have no locus standi to file this revision 3 petition.” On the basis of this admitted fact Mr Sinha has contended that once this was an admitted position that the plaintiffs had divested themselves of all sort of interest in respect of the suit property, there was no question of claming any interest under the Partition Act inasmuch as the condition precedent of being in possession as a co- sharer in the joint family property no longer served. He, therefore, relies on the provisions of order VII Rule 11 of the Code of Civil Procedure to contend that on account of subsequent event of divesting of the entire interest in the suit property, the plaintiff-opposite parties were no longer entitled to pursue the suit and therefore if the petitioner-defendant had filed an application for holding the suit to be infructuous the Court below ought to have disposed of the same finally in terms of order VII Rule 11 of the Code of Civil Procedure, instead of keeping this issue pending. He has submitted that the Court below has failed to exercise the jurisdiction vested in it by passing the impugned order disposing of the allegation of the petitioner that an appropriate direction on the issue the suit becoming infructuous would be passed at a subsequent stage. Mr. Sinha in this context has referred to and relied on the judgment of the Apex Court the case of “Shipping Corporation of India Vs. Machado Brothers and others” reported in A.I.R. 2004 S.C. page-2093 holding that both under order VII Rule 11 4 of the C.P.C and also in terms of section 151 of the C.P.C the court can take into notice the subsequent events for disposal of the suit on the ground of its becoming infructuous, and it that it is the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. Mr Ram Suresh Roy, learned Senior counsel appearing on behalf of the opposite parties in the first case and on behalf of plaintiff-petitioner in the second case does not seriously dispute this position of law, but he is of the view that as a matter of fact the civil revision application is not maintainable, in as much as, the court below has not rejected the prayer of the petitioner rather it has only directed that such prayer of the petitioner would be considered at a subsequent stage. He in this respect has relied and emphasized on the following part of in the impugned order:- *^dksbZ Hkh okn pyu yk;d gS ;k ugha bldk fopkj.k nksuks i>ks nzokjk lk>; ,oa dkxtkrksa dks izLrqr fd;s tkus ds ckn gh fd;k tk ldrk gS k bl okn esa vHkh lquokbZ ”q: gh ugha gqvk gS k ,slh fLFkfr esa ;g fofuf’pr djuk dfBu gksxk fd oknh dk okn bl fLFkfr esa [kfjt gksus ;ksX; gS ;k ugha oknh ml edku esa jgrk gS ;k ugha edku dk va” ijrh dks csps gS ;k ugh bu lc ckrks ij iq.kZ:isu fopkj.k lquokbZ ds dzzzzze es gks ldrk gS k ,slh fLFkfr es ,slk izrhr gksrk gS fd izfroknh dk mijksDr vkosnu ij vkns” ikfjr djuk bl LVst esa mfpr ugh gksxk k okn ds lquokbZ ds dzzze es fdlh ds 5 vkosnu es mBk;s x;s fcUnqvksa ij fopkj fd;k tk;sxk k** “ It is true that the court below by the impugned order has not rejected the prayer of the defendant, petitioners as with regard to holding the suit to have become infructuous but then taking into consideration that the interest of justice would require such issue going to the root of the matter must be decided as a preliminary issue as it is neither in the interest of the litigants nor in the interest of the justice dispensation that the Court already overburdened should remain preoccupied with litigants which have been rendered infructuous on account of the subsequents. Thus, this Court after hearing both the parties and with their consent disposes of the first civil revision application ( C.R. No. 222 of 2006 ) with a direction to the court below to decide the question as to whether to the suit has not become infructuous on account of subsequent events by reconsidering the application of the petitioners dated 25.1.2005 (Annexure-2 to C.R.222/2006 and passing an appropriate order in accordance with law within a period of three months from the date of receipt/production of a copy of this order. The first civil revision application (C.R. No. 222 of 2006) is thus disposed of with the aforementioned observation and directions. Coming now to the facts of the second case, i.e, C.R. No. 387 of 2006, this Court would find that as to whether power of attorney executed in 6 favour of Ashok Kumar @ Manoj Kumar by Most. Indrawati Lal and others is forged or not, will have relevance only if the suit continues and the preliminary issue as mentioned above of the defendant-opposite parties fails. In other words, if the court below finds that the suit has not become infructuous, this issue with regard to authenticity, genuineness or correctness of the power of attorney will have to be gone into at the time of final disposal of the suit along with other issues. At this stage, issue of genuineness of power of attorney even if examined in isolation would serve no purpose. This court does not find any error in the part second part of the order, whereby and whereunder, the court below had disposed of the application of the plaintiff-petitioner in the second case (C.R. 387 of 2006) refusing to do piecemeal exercise in respect of recording any finding or taking any action in respect of disputed power of attorney. With aforementioned observations/ directions the second revision applications C.R. No. 387 of 2006 is also disposed of. ( Mihir Kumar Jha, J.) Abhay Kumar