Authored By : Banerjee, Robert Fulton Rampini

Banerjee and Robert Fulton Rampini, JJ.

1. These two appeals arise out of a suit for partition ofcertain joint property, Appeal No. 775 being a second appeal from thepreliminary decree for partition, and Appeal No. 840 being a second appeal fromthe final decree made in the suit.

2. The questions raised by the learned Vakil for thedefendant-appellant are, first, whether the application for review of judgmentmade after the dismissal of the suit for default was not barred by limitation,and whether the subsequent proceedings in the suit were not thereforealtogether null and void; second, whether, on the pleadings, the learned Judgebelow should have gone into the question as to whether Arannagore was jointproperty; and, third, whether on the facts found, the tank referred to in thejudgment ought not to have been kept joint.

3. Upon the first question it is argued that as the suit wasoriginally dismissed under Section 102 of the Code of Civil Procedure fordefault on the part of the plaintiff, his proper course was to make anapplication for setting aside the order of dismissal under Section 103: thatthe Court had no power to entertain an application for review of judgment underSection 623 in respect of an order of dismissal under Section 102; and that asat the time when the application in question was made, the time for making anapplication under Section 103 had expired, the plaintiff cannot derive anybenefit by asking the Court to consider his application made under Section 623,as one under Section 103; and in support of this contention the case of KoilashMondol v. Nabadwip Chandra Ear (1896) 2 C.W.N318, is cited. It is furtherargued that if the application for review was not entertainable, and if thetime for making an application under Section 103 had expired, the orderdismissing the suit ought to stand, and the subsequent proceedings in the caseought to be set aside as being null and void. This point does not appear tohave been raised in either of the Courts below. But as it is a point of lawwhich touches the legality of the whole of the proceedings we allowed it to beraised on second appeal. We are, however, of opinion that this contention oughtnot to prevail. It is quite true that the case cited is authority for theproposition that where a suit is dismissed under Section 98, no application forreview of judgment under Section 623 of the Code of Civil Procedure can beentertained against the order of dismissal. But in the present case thedismissal was one not under Section 98, but under Section 102 of the Code ofCivil Procedure; and the difference between the two sections, so far as thepresent point is concerned, is this, that whereas Section 98, which applies tothe case of neither party appearing, provides that "the suit shall bedismissed unless the Judge, for reasons to be recorded under his hand,otherwise directs," Section 102, which applies to a case in which thedefendant appears and the plaintiff does not, directs that the Court shalldismiss the suit unless the defendant admits the claim, or part thereof, inwhich case the Court shall pass a decree against the defendant upon such admission,and where part only of the claim has been admitted, shall dismiss the suit sofar as it relates to the remainder." So that, while in regard to caseswhich come under Section 98 where the Court does not otherwise direct, adismissal of the suit is the only consequence, and the proviso, "unlessthe Judge, for reasons to be recorded under his hand, otherwise directs,"evidently relates to the postponing of the case and not to the making of anyfinal order in it, in cases coming under Section 102, the dismissal of a suitneed not be the only final order which the Court can make, but a partial decreemight be passed in some cases; and therefore, whilst it would be unreasonableto say that there may be an application for review of judgment in a case comingunder Section 98, because, there is no judgment, neither party having appearedbefore the Court, and the Court having simply dismissed the suit, it cannot besaid that it would be equally unreasonable for the plaintiff, in a case comingunder Section 102, to apply for review of judgment under Section 623, for itmay be open to him to show that the partial decree, which the Court has madeupon the defendants admission, gives him less than the Court ought to havegiven upon that admission, and that upon that ground he is entitled to have thejudgment reviewed. We are, therefore, of opinion that the reason for thedecision in the case of Koilash Mondol v. Nabadwip Chandra Ear (1896) 2 C.W.N.,318, does not in its integrity apply to a case like the present. The argumentbased on the ground of the unreasonableness and unmeaningness of an applicationfor review of judgment, is, in our opinion, strictly applicable only to anorder of dismissal made under Section 98 of the Code of Civil Procedure anddoes not apply equally to an order of dismissal made under Section 102.

4. We may observe that in the present case in which the suitwas one for partition, there was, if not very clear and express, at least anambiguous and implied admission that some of the properties of which partitionwas claimed were joint properties, so that it cannot be said that anapplication under Section 623 was altogether not entertainable in this case.The first contention of the appellant, therefore, in our opinion, fails.

5. As to the second contention, the argument is that uponthe facts stated in the plaint the question whether Arannagore was jointproperty did not arise. But the learned District Judge has in his judgmentexplained the circumstances under which he allowed that question to be raised.He observes: Much has been made of the omission in the plaint to specificallymention the exclusion "(that is of the property Arannagore)." It mustbe remembered that the plaintiff was an of man at deaths door, and I thinkallowance must be made for his having give imperfect instructions for drawingthe plaint." That being so, we cannot gave effect to the second contentionraised before us.

6. As to the third contention there is no doubt somehardship in the defendants proprietorship of the tank being subjected to aright of user of the ghat and the water by the plaintiff, but the existence ofthis hardship has been taken into consideration, and it is in view of thiscircumstance that the amount payable to the plaintiff by the defendant has beenreduced by the Lower Appellate Court.

7. We do not therefore think that any ground has been madeout for our interference with the judgment of the Lower Appellate Court. Weaccordingly affirm it, and dismiss Appeal No. 840 with costs. That being so,Second Appeal No. 775 will also be dismissed.

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Raj Narain Purkaitvs. Ananga Mohan Bhandari and Ors.(06.02.1899 - CALHC)