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2001 DIGILAW 149 (CAL)

Chandi Charan Paul v. Rabindra Nath Adhikary

2001-03-15

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J. : This is a revisional application under section 115 of the Code of Civil Procedure against an order dated January 13, 1993 passed by the learned Judge, Eighth Bench, City Civil Court at Calcutta in Ejectment Suit No. 759 of 1984 rejecting an application for addition of party filed by the petitioner in this revisional application. 2. Ejectment Suit No. 759 of 1984 has been instituted by Shrimati Satyabala Paul against her tenant Shrimati Smritikana Dhar, the opposite party No.2. During the pendency of the said suit, Satyabala died on May 27, 1991. The opposite party No.1 in this revisional application filed an application for his substitution/addition in the said suit instead and in place of the original plaintiff on the strength of a registered deed of settlement executed by the said Satyabala whereunder the opposite party No.1 is the beneficiary. 3. The present petitioner Chandi Charan Paul in his application for addition of party contended that he is the only son of the said Satyabala and being the natural heir is entitled to inherent the property-in-suit on the death of Satyabala. It is alleged the deed of settlement dated February 11, 1991 standing in favour of the opposite party No.1 is void. The petitioner has already instituted a suit being Title Suit No. 1136 of 1992 against the opposite party No.1 challenging the deed of settlement. In the said suit the learned Judge, Tenth Bench, City Civil Court at Calcutta by order dated June 8, 1992 has passed an interim order restraining the opposite party No.1 from interfering with the possession of the petitioner in the suit property otherwise than under due course of law. 4. The petitioner applied for his addition in the ejectment suit on the ground that the petitioner is an interested person in the ejectment suit and as such is required to be added as defendant No.2 in the said suit. 5. By order impugned the learned trial Judge rejected the said application for addition of party holding that till the deed of settlement executed by Satyabala in favour of the opposite party No.1 is set aside in Title Suit No. 1136 of 1192, the prayer of the petitioner cannot be sustained. 6. Mr. 5. By order impugned the learned trial Judge rejected the said application for addition of party holding that till the deed of settlement executed by Satyabala in favour of the opposite party No.1 is set aside in Title Suit No. 1136 of 1192, the prayer of the petitioner cannot be sustained. 6. Mr. Asis Chandra Bagchi, learned Advocate, for the petitioner submits that this is an ejectment suit initiated by the original owner, Satyabala, and since the devolution of interest in respect of the property-in-suit is in dispute between the son, that is, the petitioner and the grandson (son of the daughter), that is, the opposite party No.1, to avoid future controversies and complications; this petitioner ought to have been impleaded as defendant No.2 inasmuch as it is settled law that a decree could, also, be passed in favour of a defendant in a suitable case. 7. Mr. Isanath Jana, learned Advocate, for the plaintiff/opposite party No.1, strenuously contended that the petitioner has failed to make out any case for interference by this court. Mr. Jana, further, submits that in the event the prayer for petitioner is granted, a simple suit for eviction will be transformed into a complicated suit for declaration of title, which is not permissible in law. Mr. Jana submits that addition of this petitioner in the suit as defendant No.2 will embarrass and delay the trial of the suit. 8. Mr. Jana in support of his contentions cited the case of Ram Prakash vs. Amar Nath & Ors., reported in 1985 (1) RCJ 309. In the said case the landlord filed a proceeding for eviction of a tenant contending that he has purchased the suit shop room from the original owner. The brother of the erstwhile owner applied for his addition in the said proceeding alleging he is the real owner. The prayer for addition was rejected as he was to seek his remedy in civil courts. The case of Rameswarlal vs. Panchu Sahu & Anr., reported in AIR 1969 Orissa 116 , has been cited to contend that in a rent suit third party claiming to be owner of the property-in-question cannot be added. The prayer for addition was rejected as he was to seek his remedy in civil courts. The case of Rameswarlal vs. Panchu Sahu & Anr., reported in AIR 1969 Orissa 116 , has been cited to contend that in a rent suit third party claiming to be owner of the property-in-question cannot be added. In the case of Pravat Kumar Misra vs. Prafulla Chandra Misra & Anr., reported in AIR 1977 Orissa 183, it has been held that a third party claiming independent title to the suit property cannot be added in a suit for ejecting a tenant. Mr. Jana cited the case of Chakraberia Sishu Sangha vs. Sibaji Dutta & Ors., reported in 97 CWN 735, in support of his contention that a person should not be added as defendant merely because he would be incidentally affected by the judgement. The decision of the Supreme Court of India in the case of Anil Kumar Singh vs. Shivnath Mishra alias Gadasa Guru, reported in 1995 WBLR (SC) 113 : 1995 AIR SCW 1782, has, also, been cited by Mr. Jana. In the said reported ruling the Supreme Court held that a person acquiring the status as a co-owner during the pendency of a suit for specific performance is not a necessary party in such a suit as he was not a party to the contract and suit is based on agreement sale said to have been executed by the defendant. However, none of the cases cited by Mr. Jana is directly on the point. 9. In the case in hand the opposite party No.1 is not the inducting landlord. The defendant, the opposite party No.2, was a tenant under Satyabala. While the opposite party No.1 has been substituted in stead and in place of Satyabala as the beneficiary under the deed of settlement, the petitioner is claiming title as a natural heir of Satyabala. A suit touching the rights of the petitioner and the opposite party No.1 is pending before a civil court. 10. Whether the third party claiming title to the property in a proceeding of eviction is a proper party or not would depend upon the nature of the title of the plaintiff. A suit touching the rights of the petitioner and the opposite party No.1 is pending before a civil court. 10. Whether the third party claiming title to the property in a proceeding of eviction is a proper party or not would depend upon the nature of the title of the plaintiff. Where there is a contractual relationship of landlord and tenant between the plaintiff and the defendant and where the defendant has been inducted into possession of the suit property as a premises tenant by the plaintiff, there is no question of impleading a third party as a party in the proceeding to set up his title to the suit property in view of the provisions of section 116 of the Evidence Act, 1872. Any investigation about the title of the third party would be completely barred in such situation by reason of the rule of estoppel contained in section 116 as the tenant cannot deny the title of the landlord at the commencement of the tenancy. Accordingly, in such cases the third person would not be a proper party to be added in the proceeding under Order 1, Rule 10(2) of the Code of Civil Procedure. 11. However, where the plaintiff is claiming title to the suit property on the basis of inheritance, assignment or adoption etc., and the tenant has not attorned to him, the rule of estoppel does not operate against the tenant; it is open to the tenant and the third party to set up the title of the third party and such third party in suitable cases can be considered as a proper party whose presence before the court will be necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the proceeding. The question of rights of third parties do come in such cases because of the effect of an assignment or of an adoption or of a claim founded on inheritance, may be to deprive of the property and so of the rents and profits, of some other person. In such a situation there would be no question of converting a simple suit into a suit of title and no controversy beyond the scope of the suit would be introduced as even after his addition the main evidence in the suit and the main issue will remain same as before his addition. In such a situation there would be no question of converting a simple suit into a suit of title and no controversy beyond the scope of the suit would be introduced as even after his addition the main evidence in the suit and the main issue will remain same as before his addition. In my view, since the question sought to be determined in this ejectment suit was likely to affect the right of the petitioner to receive rent, the petitioner is, therefore, a proper party in the suit. 12. Bearing in mind the above principles, I am of the view that the learned Judge in the court below acted illegally and with material irregularity while considering the application for addition of party filed by the third party, the petitioner herein and mechanically rejected the same. 13. I, therefore, set aside the order impugned and allow the application for addition of party filed by the petitioner and order his addition as defendant No.2 in the ejectment suit. I, however, make it clear that I have no occasion to consider the merits of the rival contentions of the parties on the question of title in respect of the suit property and I expressly keep such question open. 14. This order will govern Civil Order No. 396 of 1994 and on similar reasoning the order impugned in Civil Order No. 396 of 1994 is, also, set aside and the petitioner is added as defendant No.2 in the connected suit. 15. I take this opportunity to direct the learned trial Judge in seisin of Title Suit No. 1136 of 1992 to dispose of the said suit positively within one year from the date of communication of this order to him; time limit so fixed is peremptory and mandatory. I do hereby authorise the learned Judge, in order to secure compliance of this order, to refuse all unnecessary prayers for adjournment and any adjournment prayed for and is granted must be backed up by a reasoned order. 16. There will be no order as to costs in both revisional applications. 17. Let xerox certified copy of this order, if applied for, be supplied to the parties expeditiously. Revisional application allowed.