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IN THE HIGH COURT AT CALCUTTA
TAPABRATA CHAKRABORTY, PARTHA SARATHI CHATTERJEE, JJ.
Sanjay Pareek & Ors. - Appellants
Versus
Smt. Madhushree Sharma (Pareek) - Respondent
FA No. 27 of 2022 with COT No. 15 of 2022
Decided On : 11-08-2023
STIDHAN - RECOVERY - SUIT FOR - DECREE - APPELLATE COURT - INTERFERENCE - CONDITIONS - STIDHAN ARTICLES - DEFINITION - ORNAMENTS - GIFT - PROOF - BURDEN - EVIDENCE ACT, 1872 - SECTION 92 - APPLICABILITY.
Fact of the Case:
Suit for recovery of stridhan articles filed by the respondent-wife in 2001. The appellants-husband and his parents resisted the suit by filing written statements. The learned court below decreed the suit in part.
Finding of the Court:
1. Order 2 Rule 2 of the Code mandates that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished and if a person being entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. 2. Settled proposition of law is that since Order 2 Rule 2 of the Code bars the remedy, the provisions thereof should be construed strictly. Order 2 Rule 2 of the Code bars the second suit. It would apply where the previous and subsequent suits have arisen out of the same cause of action. 3. In the case at hand, the learned court below has found the findings of criminal court to be relevant and evidence recorded in criminal trial and findings returned by criminal court have been admitted in evidence. 4. The only circumstance which may be of some substance is that as per the order of the Hon’ble Court, the appellants took some ornaments to Hare Street P.S. but Madhu failed to identify any of them. 5. The learned court below has passed the decree in part basing upon the evidence of the bank manager, the circumstance discussed above and on the basis of presumption that in India, gold ornaments are given to bridegroom at the time of marriage and such ornaments would be her stridhan properties. 6. When evidence has not been proved to be consistent and does not find support from any other oral and documentary evidence and when evidence of PW-1 has been shaken in cross-examination, then only basing upon evidence of bank and act of appellants done in deference to an interlocutory order of this court, it would be iniquitous to pass any decree in respect of gold ornaments as was prayed for by Madhu. 7. In 11 numbers of declarations of gift, all the donors made written declaration on oath that they gifted the amount to Sanjay for his absolute use and benefit and all these gifts and declarations of gift were made in 1996 whereas engagement ceremony was held in 1997 and marriage took place in 1999. 8. Section 92 of Evidence Act, 1872 lays down that when the terms of any contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document, has been proved as per section 91 of the Act, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representative-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. 9. There is no scintilla of doubt regarding binding effect of the proposition laid down in the judgment relied upon by Mr. Mukherjee but those are distinguishable on facts.
Issues: 1. Whether the suit for recovery of stridhan articles filed by the respondent-wife in 2001 was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908? 2. Whether the learned court below erred in decreeing the suit in part? 3. Whether the appellants were liable to return the ornaments detailed in schedule-a (i) and (iii) to the respondent-wife?
Ratio Decidendi: 1. Order 2 Rule 2 of the Code mandates that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished and if a person being entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. 2. Settled proposition of law is that since Order 2 Rule 2 of the Code bars the remedy, the provisions thereof should be construed strictly. Order 2 Rule 2 of the Code bars the second suit. It would apply where the previous and subsequent suits have arisen out of the same cause of action. 3. In the case at hand, the learned court below has found the findings of criminal court to be relevant and evidence recorded in criminal trial and findings returned by criminal court have been admitted in evidence. 4. The only circumstance which may be of some substance is that as per the order of the Hon’ble Court, the appellants took some ornaments to Hare Street P.S. but Madhu failed to identify any of them. 5. The learned court below has passed the decree in part basing upon the evidence of the bank manager, the circumstance discussed above and on the basis of presumption that in India, gold ornaments are given to bridegroom at the time of marriage and such ornaments would be her stridhan properties. 6. When evidence has not been proved to be consistent and does not find support from any other oral and documentary evidence and when evidence of PW-1 has been shaken in cross-examination, then only basing upon evidence of bank and act of appellants done in deference to an interlocutory order of this court, it would be iniquitous to pass any decree in respect of gold ornaments as was prayed for by Madhu. 7. In 11 numbers of declarations of gift, all the donors made written declaration on oath that they gifted the amount to Sanjay for his absolute use and benefit and all these gifts and declarations of gift were made in 1996 whereas engagement ceremony was held in 1997 and marriage took place in 1999. 8. Section 92 of Evidence Act, 1872 lays down that when the terms of any contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document, has been proved as per section 91 of the Act, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representative-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. 9. There is no scintilla of doubt regarding binding effect of the proposition laid down in the judgment relied upon by Mr. Mukherjee but those are distinguishable on facts.
Final Decision: The appeal is allowed and part of the decree whereby the learned Court below directed the appellants to return the ornaments detailed in schedule-a (i) and (iii) to the plaintiff is set aside and the cross-objection is also dismissed.
JUDGMENT :
Partha Sarathi Chatterjee, J.
1. The present appeal questions the legality and tenability of the judgment and decree dated 31st August, 2019 passed by the learned Judge, City Civil Court, III Bench, Calcutta in Title Suit no. 1763 of 2001 whereby the suit was decreed in part directing the appellants to refund the ornaments described in the schedule (a) (i) & (iii), appended to the plaint but the prayer for refund of other articles and cash of Rs.3,41,000/- were turned down. The respondents also preferred a cross-objection under Order 41 Rule 22 of the Code being COT 15 of 2022. The said cross-objection is treated as on day’s list and is taken up for hearing along with the appeal.
2. The necessitous facts required to be adumbrated for the purpose of effective adjudication of the appeal are that one Smt. Madhushree Sharma (in short, Madhu) filed Title Suit no. 1763 of 2001 for declaration and injunction contending, inter alia, that she was given in marriage with one Sanjay Pareek (in short, Sanjay), the appellant no.1 on 18.2.1999 and the rest appellants happen to be her parents-in-law.
3. She claimed that in the engagement ceremony held on 20.5.1997, gold ornaments and other items worth Rs.25,000/- were given to Sanjay by her father, and at the time of marriage, her father, namely, Mohanlal Pareek (in short, Mohanlal) gifted various gold ornaments and diamond jewelleries and silver sets worth Rs.2,00,000/- along with other house hold articles and cloths which are her absolute properties and when she was leading her nuptial life, then Mohanlal gave gold ornaments and other articles worth Rs.50,000/-.
4. In or about 1995, Sanjay’s father came to Mohanlal with a proposal of Sanjay’s marriage with Madhu. At that time, Sanjay was preparing for pursuing MBA in USA. Sanjay and members of both the families agreed to that proposal but Sanjay had no healthy bank account to get Visa and hence, Mohanlal asked his friends and relatives, who were to make a gift to Madhu at the time of her marriage, to make a gift of money in the name of Sanjay so that substantial amount could be shown in the bank account of Sanjay. In furtherance of that proposal to enable Sanjay to obtain Visa, one account was opened in the name of Sanjay in American Express Bank Ltd., now known as Standard Chartered Private Bank and Mohanlal, his friends and relatives gifted Rs.3,41,000/- to Sanjay by issuing cheques in his name and that amount was deposited in that account. It was claimed that the amount was gifted to Sanjay under the impression that Sanjay would refund that amount to Madhu, who was original owner of that money. That amount, which reached to Rs.4,00,000/- being accumulated with interest, was ultimately deposited with one company, namely, M/s. Ranisati Niyat Limited, having its office at 33/1, N.S. Road, Kolkata-700 001. In or about July, 1999, Madhu hired a locker vide. no. 20 at Vijaya Bank located at no. 4, Clive Row, Kolkata-700 001 and it was recited in the plaint that in or about 2000, Madhu and Sanjay went to London where Sanjay took a job and on 8th August, 2001 they came back to India. Sanjay directly went to Jaipur, Rajasthan where his parents were residing whereas Madhu came back to Kolkata. Sanjay went back to London on 17th August, 2001 without giving any intimation to her. On or about 10th September, 2001, she came to learn that Sanjay took out all her ornaments from the locker hired in the Vijaya Bank in 1999 and even key of that locker had been surrendered.
5. Madhu claimed that M/s. Ranisati Niryat Private Ltd. (in short, the company) awarded interest amounting to Rs.3 lacks against the amount being Rs.3,41,000/- to Sanjay and the interest was deposited in the American Express Bank Ltd., now known as Standard Chartered Pvt. Bank. Sanjay had withdrawn the entire amount being Rs.3 lacks which belonged to her. She further claimed that Sanjay wrote a letter to the said company to refund the said sum of Rs.4 lacks which actually belonged t
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