JUDGMENT
The Judgment of the Court was as follows:
This Application under Article 227 of the Constitution of India is directed against an order dated 28th September, 2007 passed by the learned Second Additional District Judge at Alipore in Misc. Appeal No. 66 of 2007 reversing the order dated 5th February, 2007 passed by the learned Civil Judge, Senior Division, 2nd Court at Alipore in Title Suit No. 121 of 1962 at the instance of some of the parties in the partition suit.
2. The facts leading to the filing of this revisional application which are necessary for consideration of the merit of this revisional application are set out hereunder in brief:
a) A suit for partition being Title Suit No. 43 of 1956 which was subsequently renumbered as Title Suit No. 121 of 1962 was instituted in Alipore Court for partition of suit properties wherein four different families namely Sardars, Mondals, Sanfuis and Pals were involved.
b) By an order being No. 54 dated 24th November, 1958 passed by the learned Trial Judge, one Sri Ranjit Kr. Ganguly, advocate was appointed as a receiver in respect of the entire suit properties with all power of management of the properties. The receiver took possession of the suit property on 30th November, 1958 and reported the same to the Court on 5th December, 1958. Subsequently upon the death of the said receiver, another learned advocate viz. Sri Sankar Sen was appointed as a receiver over the suit properties on 19th February, 2000. The said receiver also confirmed in his report that he had received possession of the suit property.
c) Various allegations were made against the said receiver for mismanagement of the suit properties and ultimately by an order passed by Hon'ble Justice Prabir Kr. Samanta, as His Lordship then was, on 1st September, 2005 in CPAN No. 688 of 2004, the contemnor (receiver) was held to be guilty of contempt and punishment by way of imprisonment was awarded against him. However, subsequently such punishment was stayed by the Hon'ble Appeal Court on 2nd September, 2005. His Lordship observed that the said receiver does not deserve to be retained as receiver over the estate any further. The learned Trial Judge was directed to take appropriate steps accordingly.
d) A proceeding for removal of the said receiver has already been initiated and the same is still pending. An interim order was passed to this effect that pending such disposal, the receiver so appointed shall remain restrained from dealing with any of the suit properties in any manner whatsoever.
e) Part of the suit properties with which this Court is presently concerned was acquired by the State of West Bengal under Land Acquisition Act. After acquiring a part of the suit property, the State of West Bengal and the West Bengal Industrial Development Corporation (WBIDC) demised an aggregate area of 7.4 acres of land in Mouza Barakhola to Metro Cash & Carry India Pvt. Ltd. for a premium of Rs. 16 crores. After obtaining lease of the aforesaid land, the said lessee started raising construction in the demised premises by end of May, 2006.
f) Immediately thereafter the Sanfui group filed a writ petition before this Hon'ble Court for challenging the said acquisition proceeding. An interim order of injunction for restraining the lessee (Metro) from raising further construction in the demised premises was sought by the petitioners therein in the said writ petition. The said writ petition being W.P No. 13184(W) of 2006 was entertained by a learned single Judge of this Hon'ble Court on 30th May, 2006 and direction was given to the parties for filing their respective affidavits in the said proceeding. An interim order was passed to the effect that steps taken, in the meantime, will abide by the result of the writ petition. Nobody challenged the said order in any higher forum and the said order is still operating in the field.
g) Thereafter the defendant No. 51 namely Vikhyram Naskar filed application in the said suit inter alia praying for an injunction for restraining the opposite parties in the suit along with third parties from changing the nature and character of the suit property on the ground that some of the parties in the suit in collusion with third parties have been changing the nature and character of the suit properties by affixing board of Metro Cash & Carry, on consent of parties, the prayer for injunction of the said defendant was allowed by the learned Trial Judge on 16th June, 2006 by directing all the parties in the suit to maintain status quo in respect of the suit property by restraining themselves from selling, transferring, alienating or otherwise disposing of the suit property between inter party or any third party and/or from changing the nature and character of the suit property in any manner whatsoever till the disposal of the suit.
h) Subsequently on an application filed by the said defendant No. 51, the learned Trial Judge, by an order dated 3rd July, 2006 requested the Superintendent of Police, South 24-Parganas to issue direction upon the O.C, Purba Jadavpur P.S to see that the injunction order dated 16th June, is maintained by both the parties and/or their men and agents in proper form.
i) Subsequently the other defendants being defendant Nos. 41 Ka(1) and 41 Ka(4) filed an application under section 151 of the Civil Procedure Code inter alia praying for issuance of direction upon the S.P, 24-Parganas, South and O.C and S.I of Purba Jadavpur P.S to stop the works being done by all the third parties intruders including the trespassers specifically named Metro Cash & Carry India Pvt. Ltd. and the henchmen in the suit property and also for restraining all third parties including Metro Cash & Carry India Pvt. Ltd. from changing the nature and character of the suit property situated at Mouza Barakhola with immediate effect.
j) The learned Trial Judge by an order dated 5th February, 2007 allowed the said application of those defendants and directed the Superintendent of Police, South 24-Parganas, Alipore to see that the order of the Court, passed on 16th June, 2006 is complied with strictly.
k) Metro Cash & Carry India Pvt. Ltd. (lessee) was aggrieved by the said order as its right, title and interest in its leasehold property was prejudicially affected by the said order passed by the learned trial Judge on 5th February, 2007. Hence, an appeal was filed by the said lessee before the learned District Judge at Alipore. The said appeal which was registered as Misc. Appeal No. 66 of 2007 was admitted for hearing by learned District Judge at Alipore and was ultimately transferred to the Court of the learned Additional District Judge, 2nd Court at Alipore. An application for stay of the operation of the impugned order was filed along with the said appeal. In the said application, a prayer seeking leave to file the said appeal was included as the said appeal was filed by a third party who was adversely affected by the impugned order. Though the said application contained such a prayer for leave to appeal but, in fact, formal order granting such leave was not recorded in the said appeal. As a result, an objection was raised by the respondents therein regarding maintainability of the said appeal as the said appeal was filed by the third party without obtaining leave to appeal from the learned Appeal Court.
l) The petitioners herein also challenged the maintainability of the said appeal by alleging that since the suit property was under the possession of the receiver appointed by the Court, the appellant cannot maintain this appeal without obtaining leave to appeal either from the trial Court or from the Appeal Court.
m) The petitioners also contended that since the parent order of injunction which was passed on 16th June, 2006 has not been challenged, the appeal is bound to fail. Objection relating to bar of limitation in filing the said appeal was also raised by the petitioners in the said appeal.
n) These are primarily the grounds on which the maintainability of the said appeal was challenged.
o) The said appeal was ultimately decided in favour of the appellant therein namely Metro Cash & Carry India Pvt. Ltd. by the learned Appeal Court. Thus, the said Misc. Appeal was allowed and the order which was impugned in the said appeal was set aside by the learned Appeal Court.
p) While allowing the said appeal, the learned Appeal Court held that since the order dated 16th June, 2006 was ultimately merged with the order dated 5th February, 2007, the said appeal which was directed against the order dated 5th February, 2007 cannot be held to barred by limitation. The learned Appeal Court also held that since the right of the appellant was ultimately affected by the order dated 5th February, 2007, the appellant can maintain the said appeal by challenging the order dated 5th February, 2007 alone. The learned Appeal Court held that the Appellant can maintain the said appeal without challenging the order dated 16th June, 2006 as the said order was not directed against the appellant. The learned Appeal Court further held that the appeal was not barred by limitation. It was also held therein that the petitioners' contention that the Misc. Appeal was not tenable as the said appeal was filed without obtaining leave either from the Trial Court or from the Appeal Court though the reliefs claimed therein relates to a part of the suit property under the possession of the receiver, has no substance in view of the settled principle of law that third parties are not restrained in any manner in respect of any property until appointment of the receiver has been perfected and the receiver is actually in possession of the property which is the subject matter of the appeal. The learned Appeal Court also held that the appeal is very much maintainable at the instance of the said lessee as the principle of natural justice has been grossly violated in passing the order dated 5th February, 2007 by the learned Trial Judge without giving any opportunity of hearing to the said appellant. The learned Appeal Court also held that the impugned order is appealable under Order 43 Rule 1 of the Code of Civil Procedure, as the injunction order which was initially passed on 16th June, 2006 was virtually extended to bind the appellant by the order dated 5th February, 2007 which was challenged in the said appeal.
3. These are the findings on which the said appeal was allowed by the learned Appeal Court. The petitioners are aggrieved by the said order. Hence, they filed the instant application under Article 227 of the Constitution of India before this Court.
4. Heard Mr. Kamalesh Bhattacharya, learned advocate for the petitioners. Mr. Kapoor, learned senior counsel appearing for Metro Cash & Carry India Pvt. Ltd., Mr. Saktinath Mukherjee, learned senior counsel appearing for WBDIC, Mr. Balai Roy, the learned advocate General appearing for the State, Mr. Aniruddha Chatterjee, learned advocate appearing for some of the opposite parties and Mr. Ghosal, learned advocate appearing for some of the opposite parties.
5. Let me now consider the merit of this revisional application in the facts of the instant case.
6. The following points were urged by the petitioners as well as by the opposite parties supporting the petitioners, before this Court:
i) Can a third party maintain an appeal without obtaining leave from the Appeal Court?
ii) Can a third party maintain any appeal concerning the suit property which is under the Receiver appointed by the Court, without obtaining leave either from the trial Court or from the Appeal Court?
iii) Does any appeal lie under Order 43 Rule 1 of the Civil Procedure Code against an order granting police help under section 151 of the Civil Procedure Code?
iv) Was the appeal liable to be dismissed for misjoinder of parties?
7. The counsel for the petitioners as well as the counsel for the opposite parties supporting the petitioners jointly submitted that section 96 of the Civil Procedure Code does not confer any right of appeal upon a stranger who is not party to the suit. It was contended by them that an appeal by a third party is not absolutely barred, but if a third party wants to prefer an appeal against any order, then he must seek leave to file such appeal from the learned Appeal Court by explaining as to how his interest was prejudicially affected by the order which is sought to be challenged in the appeal. It was further contended by them that unless the Appeal Court grants specific leave to the third party to file an appeal, the third party cannot maintain any appeal. In support of such contention the following decisions were cited:
1. In the case of Smt. Jatan Kanwar v. Golcha Properties, reported in AIR 1971 SC page 374.
2. In the case of Smt K. Pommalagu Ammal v. The State of Madras, reported in AIR 1953 Madras page 485.
3. In the case of Dipankar Roy v. Pranab Kanti Mani, reported in (2007) 4 CHN page 379.
8. They further contended that since the receiver has not yet been removed by the learned Trial Judge, it cannot be held that the property is not in the possession of the receiver. They, thus, contended that unless a leave is granted either by the learned trial Judge or by the Appeal Court to file this appeal concerning the property under the possession of the receiver, the appellant cannot maintain the appeal. In support of such contention they cited a decision of the Hon'ble Supreme Court in the case of the case of Everest Coal Co. v. The State of Bihar, reported in AIR 1977 SC page 2304.
9. Mr. Bhattacharya further contended that if any property under the possession of the receiver is acquired by the State and the possession thereof is taken by the State without obtaining leave from the Court, such possession of the State should be regarded as invalid inasmuch as obtaining such possession by the State tantamounts to interference with the Court's possession. Thus, Mr. Bhattacharya contended that even the possession of the State and/or its lessee namely the appellant, should be regarded as illegal and/or invalid possession and as such, their possession cannot be protected. In support of such submission he relied upon a decision of our High Court in the case of Gopeswar Prasad Agarwal v. The State of West Bengal, reported in AIR 2000 Calcutta page 159.
10. Mr. Bhattacharya also relied upon another decision of the Supreme Court in the case of Chandavarkar Siuta Ratna Rao v. Ashalata S. Guram, reported in AIR 1987 SC page 117 to show the scope of interference by the High Court under Article 227 of the Constitution of India. Replying upon the said decision Mr. Bhattacharya said that High Court can set aside or ignore the findings of facts of an appropriate Court if there was no evidence to justify such a conclusion or if no reasonable person could possibly have come to the conclusion which the Courts below have come or in other words a finding which was perverse in law.
11. Mr. Bhattacharya further contended that neither the State of West Bengal nor the WBDIC was a party in the suit. Mr. Bhattacharya pointed out that even the application for addition of party filed by the State was dismissed for default before the learned Trial Judge but in spite thereof the State of West Bengal and WBDIC were added as parties in the appeal. Mr. Bhattacharya, thus, contended that the instant appeal is not maintainable due to misjoinder of parties.
12. Mr. Bhattacharya further contended that since the impugned order was passed on the defendant's application for implementation of the order of injunction under section 151 of the Civil Procedure Code, no appeal lies against such an order under Order 43 Rule 1 of the Code of Civil Procedure.
13. Thus, Mr. Bhattacharya prayed for setting aside of the order of the Appeal Court.
14. In answer to the aforesaid contentions to the petitioners Mr. Kapoor, learned senior counsel contended that principle of law i.e the possession of a receiver can not be disturbed without leave of the Court, does not apply, in an appeal filed by third persons until a receiver has been actually appointed and is in actual physical possession thereof. Mr. Kapoor contended that if it is found that the receiver is not in actual possession of the suit property, then no leave is necessary for maintaining the appeal. Mr. Kapoor further contended that since the receiver has already been hauled up in contempt and he has also been found guilty for mismanagement of the suit property and is also suffering from an injunction whereby he was restrained from the dealing with the suit property, it cannot be held that the receiver is in actual physical possession of the suit property and as such, according to Mr. Kapoor no leave is necessary for maintaining the said appeal. In support of such submission Mr. Kapoor has relied upon the following decisions:
1. In the case of Kanailal Jalan v. Manoo Bibi, reported in 23 CWN page 952.
2. In the case of Anthony C. Leo v. Nandalal Bed Krishnan, reported in (1996) 11 SCC page 376.
15. Mr. Kapoor further contended that even if it is found that the receiver is in possession of the suit property, still then it cannot be held that the appeal is not maintainable for want of leave as it was held by the Hon'ble Supreme Court in the case of Everest Coal Co. Pvt. Ltd. v. The State of Bihar, reported in (1978) 1 SCC page 12 that such leave can be obtained at any time during the pendency of the suit.
16. Mr. Kapoor pointed out that his client was adversely affected by the order which was impugned in the said appeal as the injunction order which was passed on 16th June, 2006 by the learned trial Judge directing the parties to the suit to maintain status quo was not only extended to bind his client by the order dated 5th February, 2007, but also police help was granted to implement the said order of injunction against his client. Thus, Mr. Kapoor contended that the said order adversely affected the interest of his client, though he was not a party to the said suit and the said order of injunction was passed against his client without even giving any opportunity of hearing. Mr. Kapoor contended that in the aforesaid set of facts his client had no other alternative but to file the said appeal as a third party affected by the said order. He further pointed out that along with the said appeal, his client filed an application for stay wherein leave to file an appeal as a third party affected by the said order was prayed for therein.
17. Mr. Kapoor pointed out that when the Appeal Court having notice of the fact that the said appeal was filed by a third party with an application seeking leave to prefer the said appeal, admitted the said appeal even without formally recording leave, it should be presumed that leave was, in fact, granted impliedly. As such, according to him such an appeal cannot be held to be not maintainable for want of leave. In support of such submission he relied upon a decision of the Hon'ble Delhi High Court in the case of Yashod Kumari v. Municipal Corporation of Delhi, reported in AIR 2004 Delhi page 225 wherein it was held that once the Court is seized of an application under section 80(2) of the Civil Procedure Code, it ought to have disposed of that application first either by granting leave or refusing it but when the applicant's suit was already registered by the Court and an ex parte interim order was also passed without disposing of the applicant's application under section 80(2) of the Civil Procedure Code, it could be presumed that the Court had impliedly granted leave to institute suit or that notice stood waived in facts and circumstances of the case. Therefore, suit cannot be dismissed for want of notice.
18. Mr. Kapoor further contended that when it is found that setting aside of an order despite lack of jurisdiction of the Court, would result in reviving of an invalid order, the order lacking jurisdiction need not be set aside as in case of setting aside such order, the result would be, revival of an illegal order. Mr. Kapoor, thus, contended that if it is ultimately found that the order passed by the Appeal Court cannot be sustained for want of leave and if on such finding the order of the Appeal Court is set aside, then the net effect will be revival of the order of the trial Court which is absolutely an illegal and unjust order as the said order was passed against his client who was not a party in the suit and that too without giving any opportunity of hearing to his client. According to Mr. Kapoor, if the order of the Appeal Court is set aside in the facts of the instant case, then injustice will prevail over justice which should at all costs be avoided. To support such submission he relied upon a decision of the Hon'ble Supreme Court in the case of Maharaja Chintamani Saran Nath Shahdeo v. The State of Bihar, reported in (1999) 8 SCC page 16.
19. Mr. Kapoor ultimately submitted that the scope of interference with the order of the Appeal Court under Article 227 of the Constitution of India is very limited. Relying upon a decision of the Hon'ble Supreme Court in the case of Radeshyam v. Chhabina, reported in (2009) 5 SCC page 616, Mr. Kapoor submitted that it was held therein that Article 227 of the Constitution vests the High Court with a power of superintendence which is to be very sparingly exercised to keep the Tribunals and the Courts within the bounds of their authority. It was further held therein that under Article 227 of the Constitution, orders of the Court can be examined only in a very exceptional cases when manifest miscarriage of justice has been occasioned and such power is not to be exercised to correct a mistake of fact or of law.
20. Looking from that angle Mr. Kapobr invited this Court not to interfere with the instant appeal particularly when the State Government has acquired the said property and subsequently leased out the said property to his client for a premium of Rs. 16 crores and thereafter constructions have also been completed therein by investing several crores of rupees and the business of his client has already commenced by giving employment of at least 400 people.
21. Mr. Ashok Banerjee, learned senior counsel for appearing appellant/opposite party No. 1, relied upon another decision of the Bombay High Court in the case of the Province of Bombay v. Western India Automobile Association, reported in AIR 1949 Bombay page 141, to show that a third party who is affected by an order has a right of appeal with the leave of the Court. Mr. Banerjee also cited another decision of the Hon'ble Supreme Court in the case of Smt. Jatan Kanwar Golcha v. Golcha Properties Pvt. Ltd., reported in AIR 1971 SC page 374 to support his submission that grant of such leave is almost a routine work of the Appeal Court when it is found that a third party is prejudicially affected by the order of the Court.
22. Mr. Mukherjee, learned senior counsel appearing for the WBDIC also made his submission almost in the same tune as that of Mr. Kapoor with regard to the maintainability of the said appeal by a third party. Mr. Mukherjee contended that, in fact, no procedure has been laid down for obtaining such leave either in the Civil Procedure Code or anywhere else. According to him, such leave may be explicitly recorded in the appeal or grant of such leave may be inferred in certain circumstances. He submitted that whenever the Appeal Court finds that a third party is coming forward with an appeal to challenge an order which adversely affects its interest, the grant of leave is almost a matter of course. As such, omission to record grant of such formal leave in the appeal cannot vitiate the appeal when it is found that the Court consciously admitted the appeal filed by a third party along with a prayer for grant of leave. In such circumstances, grant of leave to prefer appeal will be presumed. Relying upon the following decisions Mr. Mukherjee submitted that the effect of admission of the time barred appeal having specific knowledge that the appeal is barred by limitation, was considered by different High Courts in the following decisions wherein it was held that there is no need for express condonation if it is found that the Appeal Court admitted the appeal consciously having knowledge of the delay in filing the appeal:
1. In the case of Sri Sri Iswar Sridhar Jew v. Ganendra Nath Ghosh, reported in AIR 1960 Calcutta page 718.
2. In the case of Raghunath Gambhirshet v. Ganpat Motiram, reported in AIR 1953 Bombay page 284.
3. In the case of B.H Subbiah Gowda v. Seshagiriachar, reported in (1969) 1 Mysore Law Journal page 391.
4. In the case of Kashinath Mondal v. The State of West Bengal, reported in (2008) 2 CHN page 7.
23. In fact, Mr. Mukherjee also made an identical submission as that of Mr. Kappor on the question of maintainability of this appeal which was filed without obtaining leave either from the trial Court or from the Appeal Court before filing this appeal though the reliefs claimed therein relates to a property which is in the custody of the receiver. By relying upon a decision of the Hon'ble Supreme Court in the case of Anthony C. Leo v. Nandal Bal Krishna, reported in (1996) 11 SCC page 376 Mr. Mukherjee contended that the rule that the receiver's possession will not be disturbed without leave of the Court is not applicable if the receiver is not in actual physical possession of the property.
24. Mr. Mukherjee further contended that the petitioners knew very well that the land in question was acquired by the Government and possession thereof was obtained by the Government in the said Land Acquisition Proceeding. The grant of lease of the land in question by the Government and WBIDC in favour of the Metro Cash & Carry India Pvt. Ltd. was also known to the petitioners as the petitioners themselves filed a writ petition before this Hon'ble Court challenging the acquisition proceeding. Mr. Mukherjee further pointed out that not only they had knowledge about the acquisition proceeding but also they prayed for interim order of injunction for restraining the Metro Cash & Carry India Pvt. Ltd. from changing the nature and character of the suit property but they failed to obtain the said interim order from this Hon'ble Court. Mr. Mukherjee, thus, contended that once the petitioners failed to obtain the said interim order from this Hon'ble Court, the petitioners cannot approach the subordinate Court seeking identical relief without even disclosing the fact of refusal of their prayer for injunction by the High Court. Suppression of such material facts before the trial Judge, according to Mr. Mukherjee, amounts to commission of fraud upon the Court and as such, the interim order which was obtained by the petitioners from the Trial Court by commission of fraud cannot be retained on record.
25. Mr. Mukherjee further contended that acquisition proceeding under the Land Acquisition Act cannot be challenged before the Civil Court as the said Act is a self-contained code which provides the forum for challenging the proceeding under the said Act. According to Mr. Mukherjee the Civil Court cannot ascertain the legality of any proceeding under the Land Acquisition Act; as such, neither the legality of the acquisition proceeding nor the right of Mr. Kapoor's client to raise construction on the demised land can be questioned before the Civil Court. In support of such submission Mr. Mukherjee relied upon a decision of the Hon'ble Supreme Court in the case of the State of Bihar v. Dhirendra Kumar, reported AIR 1995 SC page 1955.
26. Mr. Mukherjee ultimately submitted that the order of the learned trial Judge is ex facie bad in law as an injunction order was passed against Mr. Kapoor's client who was not a party to the suit and that too without giving him any opportunity of hearing. As such, the said order cannot be retained on record. Thus, he submitted that even if it is found for any reason whatsoever that the order of the Appeal Court cannot be retained as the appeal was not maintainable for want of leave, still then, this Court in exercise of its suo motu jurisdiction under Article 227 of the Constitution of India can quash the order of the learned trial Judge passed on 5th February, 2007, by following the principle as laid down in the case of Malay Kr. Berav. Rabindra Nath Bera, reported in 1977 (1) CLJ page 92.
27. The learned Advocate General also advanced identical submission on the merit of this revisional application.
28. Let me now consider the submission of the learned counsel of the respective parties in the facts of the instant case.
29. Let me first of all consider the effect of not obtaining any leave to file an appeal by a third party.
Re: Point No. 1
30. Learned counsel of all the parties uniformly expressed their views that an appeal can be maintained at the instance of the third party under section 96 of the Civil Procedure Code with leave of the Appeal Court. The only dispute between the parties which is raised herein relates to the fate of an appeal, which was admitted for hearing without recording grant of leave specifically in the appeal. Here is the case where this Court finds that the land in question was acquired by the State under the Land Acquisition Act during the pendency of the suit. The possession of the said land was taken by the Government in the said Land Acquisition Proceeding. The Government and the WBDIC granted lease to the Metro Cash & Carry India Pvt. Ltd. for a premium of Rs. 16 crores and the said lessee was put into possession in the demised land by its lessor. Thus, on the strength of the said lease, the said lessee has the right to raise construction on the demised land and when in exercise of such right the said lessee was constructing on the demised land; the lessee was injuncted by the order passed by the learned trial Judge on 5th February, 2007 and as such, it cannot be held that the lessee was not adversely affected by the said order of injunction. Such injunction order was passed against the lessee who was not a party to the suit and that too without giving any opportunity of hearing to the lessee. In my view, if such a lessee comes forward to challenge the said order of injunction in appeal with a prayer for leave to appeal, such prayer for leave to appeal cannot be refused. In fact grant of such leave is absolutely formal in such circumstances. Fact remains, the lessee sought for such leave but such formal leave was not expressly recorded; but even then can it be held that the appeal is not maintainable for not recording such leave expressly when the Appeal Court consciously admitted the said appeal knowing fully well that it was an appeal at the instance of the third party? In my view, under such circumstances, it should be presumed that the leave was granted.
31. Though Mr. Chatterjee, learned Advocate submitted that those line of cases which were relied upon by Mr. Mukherjee and/or by Mr. Kapoor to show that grant of leave can be presumed in certain circumstances, do not fit in the instant case as those are the cases where the right to appeal and/or to sue by a party was recognised under the law subject to fulfilment of certain statutory provisions regarding condonation of delay under section 5 of the Limitation Act and/or regarding grant of leave to sue under section 80 (2) of the Civil Procedure Code, but here is the case where law does not recognize the right of appeal of a third party and, in fact, such right is created only when leave is granted. This Court, however, does not find any basic distinction between those two lines of cases, as Mr. Chatterjee wanted to project before this Court. In case of time barred appeal, the appellants also cannot file the appeal as of right. Such appeal can only be entertained when delay is condoned. Similarly third party has no right of appeal as such, but if the third party is adversely affected by any order of the Court, certainly he has the right of appeal and grant of such leave is absolutely formal in such case. What is material is to ascertain as to whether the right of such third party is adversely affected by order of the Court or not. In fact, not a single counsel argued that the appellant/opposite party No. 1 was not at all affected by the said order of the learned trial Court. But even if such an argument is advanced, still then, this Court cannot accept their contention that the appellant (lessee) was not affected by the said order and/or its prayer for leave to appeal could have been refused.
32. Let me now consider the ultimate submission of the counsel of the petitioners from a different angle. If this Court accepts the submission of the petitioners and holds that grant of leave cannot be presumed, then this Court will have no other option but to set aside the order of the Appeal Court and further to send the said appeal to the learned Appeal Court on remand for deciding the appellant's pray for grant of leave first and then to decide the said appeal on merit.
33. Since this Court holds that leave cannot be refused to the appellant in the facts of the instant case, then no useful purpose will be served by remanding this appeal to the Appeal Court to regularize the records of the said appeal by recording the grant of such leave only and then to reprint the decision which was passed by the Appeal Court earlier on merit of the said appeal.
34. In my view, such a course of action will be a futile exercise on the part of the Court, and the Court's valuable time will be wasted in this process.
35. As such, this Court, does not feel any necessity to adopt the said course of action as this Court is of the firm view that grant of leave should be presumed in the instant case by following those line of decisions which were cited by Mr. Mukherjee and Mr. Kapoor as referred to above.
Re: Point No. (ii)
36. Let me now consider the effect of not obtaining the leave either from the trial Court or from the Appeal Court before filing the appeal as the property in question is under the custody of the Receiver. Though Mr. Mukherjee, Mr. Kapoor and Mr. Banerjee uniformly submitted that the suit property was not in the custody of the Receiver at the time of acquiring the suit property by the State as, at the relevant time the Receiver was injuncted from dealing with the said property by this Hon'ble Court but by considering the order of injunction which was passed against the Receiver, this Court cannot conclude that the possession of the Receiver in the disputed property was discontinued. Admittedly the Receiver has not yet been removed. As such, he is still in possession of the suit property.
37. But the present problem cannot be solved from that angle, by ascertaining as to whether the receiver has been removed or not.
38. Here is the case where a part of the suit property has been acquired by the State and possession thereof has also been taken by the State. Neither the Receiver nor any of the parties ever complained against the State for taking over possession of the land in question, in the said suit. In fact, no interim relief was prayed for in the said suit for protecting the possessory right of the parties in the said suit. When the possession has been taken by the State after acquiring the land in question, the State became the owner of the suit property and, as such, this part of the property cannot be a part and parcel of the partition suit as the owners of the property was divested of their interest therein because of acquisition of the said land.
39. This Court holds that it is rightly pointed out by Mr. Mukherjee that Civil Court has no jurisdiction to consider the legality of such acquisition proceeding. As such, the legality of such acquisition proceeding and/or taking over of the possession of such land by the State cannot be considered in the civil suit in view of the decision of the Hon'ble Supreme Court in the case of State of Bihar v. Dhirendra Kumar Sons (supra). As such, this Court has no other alternative but to proceed on the basis that the land in question ceased to be the subject matter of the partition in the said suit and the Receiver was not in possession of the said suit property at the relevant time.
40. Thus, by following the decisions which were relied upon by Mr. Kapoor as well as by Mr. Mukherjee in this regard as referred to above, this Court holds when the Receiver is not in actual possession of the said land in question, the appellant was not required to obtain any leave either from the trial Court or from the Appeal Court for maintaining the said appeal.
Re: Point No. (iii)
41. Let me now consider the petitioners' contention regarding maintainability of the appeal against an order passed on an application under section 151 of the Civil Procedure Code. In this regard, this Court wants to point out that the caption of an application is not very much material in this regard. What is material is the substance of the said application. On perusal of the said application, this Court finds that the petitioners not only prayed for extension of the interim order of injunction to bind a third party i.e Mr. Kapoor's client but also the petitioners wanted to get the said order of injunction implemented through police help.
42. Thus, when one of the prayers of the petitioners was for extension of interim order to bind a third party and when in fact the injunction order passed on 16th June, 2006 was extended by the learned trial Court to bind the third party, this Court holds that such prayer was made essentially under Order 39 Rules 1 and 2 of the Civil Procedure Code and the order passed thereon by the learned trial Judge was essentially an order passed under Order 39 Rules 1 and 2 which is appealable under Order 43 Rule 1(r) of the Civil Procedure Code. As such, this Court holds that the order impugned in the appeal was an appealable order.
Re: Point No.(iv)
43. This Court also holds that no appeal can be dismissed for misjoinder of parties. Even assuming that the State of West Bengal and WBDIC were joined as parties in the said appeal unnecessarily, still then, the appeal cannot be dismissed for misjoinder of unnecessary party. However, in my view, in the facts and circumstances of the instant case, the State of West Bengal and the WBIDC were necessary parties in the appeal as the State and WBIDC are claiming title in the acquired land and the appellant is claiming its leasehold interest therein through the State and WBIDC and the parties to the partition suit are indirectly trying to injunct the State and WBIDC from exercising their right in the said property. As such, the appeal cannot be held to be not maintainable for adding the State of West Bengal and the WBIDC as parties in the said appeal.
44. Though this Court was addressed by the learned counsel of both the parties on the scope of interference under Article 227 of the Constitution of India, but this Court does not feel any necessity for considering such submission in details as this Court instead of making any attempt to interfere with the order of the learned trial Judge passed on 5th February, 2007 by invoking the suo motu. jurisdiction of this Court under Article 227 of the Constitution, maintains the order which is impugned in this application.
45. Before concluding, this Court holds that the application on which the learned trial Judge passed an order on 5th February, 2007 is liable to be rejected for suppression of material facts regarding the proceedings pending before the High Court in connection with the acquisition matter and/or the order passed therein. The petitioners ought not to have invited the learned Trial Court to pass an injunction order against the opposite party No. 1 when such prayer of the petitioners was rejected by this Hon'ble Court in the writ proceeding.
46. Under such circumstances, this Court does not find any justification to interfere with the impugned order as this Court fully agrees with the submission of Mr. Kapoor that in case the impugned order is set aside for any technical consideration, then an illegal and unjust order will get revived and the said order will operate in the field, which should not be done in view of the principle laid down in the case of Maharaja Chintamani Saran Nath Shahdeo v. The State of Bihar (supra).
47. Accordingly, the revisional application stands rejected.
48. This order will also govern the fate of the other revisional application being CO. No. 3909 of 2007 which was heard analogously along with this application.
Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.
Revisional application rejected
D.S