ARUN KUMAR BISWAS v. D. N. MAJUMDAR — 1984 DIGILAW 303 (CAL)

B. C. CHAKRABARTI, J. ( 1 ) THIS revisional application at the instance of the tenant defendant is directed against an order dated May 16, 1984 passed in Title Suit No. 59 of 1975, now pending in the court of the learned Munsif, 2nd Court, Alipore. ( 2 ) THE said suit was instituted by the opposite party (plaintiff) for eviction of the defendant under the provisions of the West Bengal Premises Tenancy Act on the ground that the defendant/petitioner was a habitual defaulter in the payment of rent. Facts leading to the impugned order as appearing from the petition itself may be briefly stated thus: ( 3 ) THE defendant entered appearance in the suit without the writ of summons being served upon him and filed an application under section 17 (2a) of the West Bengal Premises Tenancy Act. The petition was rejected by an order dated April 6, 1976 upon a finding that the summons was duly served under Order 5 Rule 20 of the Code of Civil Procedure and that the application of the defendant-petitioner was barred by limitation. The petitioner moved this court in revision and the court adjourned the matter in order to enable the petitioner to file an application under Section 5 of the Limitation Act in the court below. The defendant-petitioner filed such an application on July 6, 1976. The revisional application thereafter was allowed to be withdrawn. The defendant's petition under Section 17 (2a) of the West Bengal Premises Tenancy Act read with Section 5 of the Limitation Act was however, rejected by the learned Munsif by his order dated May 23, 1978. Being dissatisfied with the order the petitioner again moved this court and obtained a Rule being C. R. 2677 of 1978. The Rule was discharged on January 9, 1981. The plaintiff-opposite party filed an application on July 6, 1976 under Section 17 (3) of the West Bengal Premises Tenancy Act for stricking out the defense against delivery of possession. The application was opposed by the defendant-petitioner, but was allowed by the learned Munsif by an order dated July 27, 1981. Being dissatisfied with the order the defendant petitioner again moved this court and obtained a Rule which was ultimately discharged on January 27, 1983. The application was opposed by the defendant-petitioner, but was allowed by the learned Munsif by an order dated July 27, 1981. Being dissatisfied with the order the defendant petitioner again moved this court and obtained a Rule which was ultimately discharged on January 27, 1983. ( 4 ) THEREAFTER the hearing of the suit commenced and the petitioner on March 6, 1984 filed an application for leave to file an additional written statement. The proposed amendment was also filed along with the application. The learned Munsif by the order impugned has rejected the prayer and hence the present revisional application. ( 5 ) THE application has been heard on notice to and upon contest by the opposite party. ( 6 ) MR. Bhattacharjee appearing for the petitioner contended that the learned Munsif acted in the exercise of his jurisdiction illegally and with material irregularity in holding that the additional written statement could not be entertained after the defense of the petitioner was struck out. It is complained that the additional defense sought to be advanced by way of amendment of the written statement was not a defence under the West Bengal Premises Tenancy Act. Mr Bakshi on the other hand contended that the application apart from being vexatious and harassing, is otherwise meritless and is but another attempt to delay the trial of the suit. In order to appreciate the rival contentions of the parties it may be useful to bear in mind what exactly the defendant-petitioner wanted to say by way of the additional written statement. Annexure 'c' to the petition is the application filed by the petitioner and Annexure 'd' is the proposed additional written statement. By the additional written statement the defendant wanted to introduce a story that the petitioner was inducted as a tenant by Smt. Durga Majumder that she died leaving behind her husband Dr. D. N. Majumder (plaintiff-opposite party) and two sons Ashoke and Manoj by name to inherit her and that as such they jointly became landlords of the petitioner and consequently the notice of ejectment allegedly served upon the petitioner was illegal and invlaid. ( 7 ) ANNEXURE 'a' is the plaint in paragraph 1 of which it is stated that the defendant was a monthly tenant of the suit premises under the plaintiff at a rental of Rs. 100/- per month payable according to English Calender. ( 7 ) ANNEXURE 'a' is the plaint in paragraph 1 of which it is stated that the defendant was a monthly tenant of the suit premises under the plaintiff at a rental of Rs. 100/- per month payable according to English Calender. Annexure 'b' is the written statement filed by the defendant petitioner. In the written statement the averment that the defendant was a tenant under the plaintiff has no where been denied. The allegation of default in the payment of rent only has been denied and the validity and sufficiency of the notice have also been challenged. Besides this there is no case in the written statement that the plaintiff was not the landlord. ( 8 ) IN the affidavit-in-opposition filed by the plaintiff-opposite party it is stated in paragraph 10 (a) that the defendant was inducted by the opposite party that his wife late Durga Majumder signed some rent receipts during his temporary absence and that the defendant-petitioner all along admitted the opposite party as the landlord. It is also stated in paragraph 10 (b) that even in the application under Section 17 (2) of the West Bengal Premises Tenancy Act, the relationship between the parties as landlord and tenant was admitted and the rent was being deposited in the name of the opposite party. It is further stated that the petitioner had earlier filed a case against the opposite party alleging stoppage of supply of water. The petitioner thereby admitted the opposite party as the landlord. The case was dismissed. It is further stated in the affidavit-in-opposition that the opposite party filed a suit for recovery of arrears of rent in 1970. The defendant petitioner admitted that he was tenant and prayed for payment of the dues by easy instalments. ( 9 ) IN the affidavit-in-reply filed by the petitioner he has reiterated his stand that he was inducted by late Durga Majumder and has denied that Smt. Majumder merely signed some rent receipt during the absence of the opposite party. The other averments in the affidavit-in-opposition, namely, that there was no denial of relationship of landlord and tenant in the original written statement and in the application under Section 17 (2a) have not been challenged. The other averments in the affidavit-in-opposition, namely, that there was no denial of relationship of landlord and tenant in the original written statement and in the application under Section 17 (2a) have not been challenged. Nor has the petitioner denied the statement that he had earlier made a complaint to the Rent Controller against the opposite party alleging stoppage of supply of water by the opposite party. He has not also disputed the fact that the opposite party had previously brought a suit for recovery of arrears of rent in which the defendant petitioner without disputing the claim of the opposite party to recover the rent merely asked for instalments. ( 10 ) THEREFORE, it is clear that at no point of time before the filing of the additional written statement did the defendant-petitioner come up with a case that the plaintiff alone was not his landlord. The relationship as between them has all along been conceded. Now the question is whether in the context of all these the defendant could be permitted to veer round and contend that the plaintiff alone was not his landlord. It same to me that the petitioner having admitted that there exists relationship of landlord and tenant between the parties cannot now be permitted to take a plea to the contrary. Mr. Bhattacharjee, however, drew my attention to certain observation in the case of Kamakshya Singh Deo Vs. Modula India and Ors. 1983 (1) C. L. J. 241 F. B. The main point for consideration in the case was the extent to which the defendant could contest the suit after his defence has been struck out. At page 278 of the report it is observed that after the defence is struck out the defendant cannot cross-examine the plaintiff's witnesses except on the ground of notice. At page 296 of the report it is observed that the expression 'defence' in section 17 (3) of the Act means the entire defence against delivery of possession and not merely the defendant's pleadings that is his written statement. At page 300 it is observed that the defendant/tenant may, however, cross-examine the plaintiff's witnesses on points which do not relate to his defence against delivery of possession. At page 300 it is observed that the defendant/tenant may, however, cross-examine the plaintiff's witnesses on points which do not relate to his defence against delivery of possession. In other words it was held that he cannot cross-examine the plaintiff's witnesses on the question as to the existence of the grounds on which the plaintiff seeks recovery of possession but the defendant can cross-examine on points not related to the grounds upon which the claim for eviction is founded. Mr. Bhattacharjee upon a reference to this decision argued that the defendant in spite of the fact that his defence against delivery of possession has been struck out, is nonetheless entitled to challenge the validity and legality of the notice and that in order to effectively challenge the same it was necessary for the defendant to plead the additional fact which he had earlier omitted to do through inadvertence. ( 11 ) MR. Bhattacharjee also referred to the case of Manoharlal Vs. N. B. M. Supply, AIR 1969 S. C. 1267 and argued that an application for amendment should not be refused on technical grounds. The facts of that case were entirely different and has o bearing to the facts of the case in hand. Another case, P. H. Patil Vs. K. S. Patil AIR 1957 S. C. 363 was also referred to. The principles laid down in the case was that all amendments ought ordinary to be allowed which satisfied two conditions and tests.- (A) not working injustice to the otherside and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. This decision further laid down that amendment should be refused where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. This decision also, therefore, in my view does not really support the case of the defendant-petitioner. I have already indicated that the defendant has all through admitted the plaintiff to be his landlord and at no point of time whether in this proceeding or in earlier proceedings did he come up with a case that the plaintiff alone was not the owner. The question whether the plaintiff alone is the owner or not strictly is not very relevant or pertinent. The relationship between the parties is admitted. The question whether the plaintiff alone is the owner or not strictly is not very relevant or pertinent. The relationship between the parties is admitted. That being so the defendant cannot be permitted now to take a stand that the plaintiff alone is not his landlord. Mr. Bhattacharjee was emphatic in his assertion that there were rent receipts signed by late Durga Majumder. The fact that Durga Majumder signed some rent receipts cannot be the sole criterian. The opposite party in his affidavit has stated in what circumstances she had singed certain receipts. To permit the defendant to introduce a case that the plaintiff along with his two sons are the landlords would not only be inconsistent with the case of the defendant although but will introduce a case which in spite of the admitted relationship would place the plaintiff in a position of disadvantage which cannot be compensated by costs. This apart the question whether the suit is bad for non-joinder of parties or not is a plea which the defendant should take at the earliest opportunity. This has been so held in the case of Sriram Pasricha Vs. Jagannath AIR 1976, S. C. 2335. In that suit it was urged that unless the landlord was the absolute owner of the premises he cannot evict the tenant under Section 3 (1) (f) of the West Bengal Premises Tenancy Act and therefore since there are other co-sharers the plaintiff alone could not file the suit for eviction. The contention was overruled on two grounds. Firstly the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other owners. Such a plea, it was held, should have been taken for what it is worth at the earliest opportunity and it was not so done. Secondly it was observed, the relation between the parties being that of landlord and tenant only, the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord and he cannot deny the rights of the landlord at the commencement of the tenancy. ( 12 ) THE plea of the defendant sought to be introduced by way of an additional written statement appears to me to be not only vexatious and harassing but without any merit whatsoever. ( 12 ) THE plea of the defendant sought to be introduced by way of an additional written statement appears to me to be not only vexatious and harassing but without any merit whatsoever. It will bear repetition that the purpose of allowing a party to amend his pleading suitably is only to enable the court to effectively adjudicate upon the real controversy in the suit. But an amendment of the nature as sought to be made in this case and more particularly at the stage of the suit ought to be refused because in allowing it the plaintiff's suit would be wholly displaced. The proposed amendment would be wholly inconsistent with the original written statement and in that situation I am unable to agree with Mr. Bhattacharjee that he is entitled to amend the written statement in the manner prayed for. That being so I find nothing to interfere with the order passed by the learned Munsif. The prayer for amendment is liable to fail not merely because the defence against delivery of possession has been struck out but on its own merits. The revisional application accordingly fails and is hereby dismissed. There will be no order for costs. All interim order are vacated. The order be communicated to the court below forthwith. Application dismissed.