SAMARESH BANERJEA, J. ( 1 ) THE present appeal has been preferred against the Order no. 81 dated September 20,1988 passed in misc. case No. 972 of 1983 whereby the learned Judge, 11th Bench, City Civil Court at Calcutta has rejected the application under order 9, Rule 13 of the Code of Civil Procedure filed on 24th of August, 1983 for setting aside the ex-parte decree dated June 29, 1983 passed in Ejectment Suit No. 10 of 1982. ( 2 ) THE Ejectment Suit No. 10 of 1982 was filed by Sri Asutosh Paul, the respondent before us against Sri Mata Badal Banwarilal shaw alias Mata Badal Shaw alias M. B. Shaw son of late Mahesh Ram Shaw. ( 3 ) THERE is no dispute that the landlord asutosh Paul let out the suit premises being no. 35a, Bechu Chatterje Street, Calcutta to the said tenant Mata Badal Banwarilal Shaw and the rent receipts were also issued in favour of Mata Badal Banwarilal Shaw. ( 4 ) ADMITTEDLY, the suit was decred ex parte and, therefore, the said tenant Mata badal Banwarilal Shaw made an application under Order 9, Rule 13 of the Code of Civil procedure for setting aside the ex parte decree. ( 5 ) ADMITTEDLY, an application for amending the aforesaid application under Order 9, rule 13 was made under Order 6, Rule 17 of the Code of Civil Proceedure. In the said application, it was alleged that at the time of leading the evidence in the said misc. Case, it was ascertained that the petitioners Mata Badal Shaw and Banwarilal Shaw are two individual persons who took tenancy jointly under the plaintiff and as such the petitioners Mata Badal Shaw and Banwarilal Shaw are the joint tenants under the landlord in respect of the premises in question. Case, it was ascertained that the petitioners Mata Badal Shaw and Banwarilal Shaw are two individual persons who took tenancy jointly under the plaintiff and as such the petitioners Mata Badal Shaw and Banwarilal Shaw are the joint tenants under the landlord in respect of the premises in question. It was further alleged in the said application that both such petitioners Banwarilal Shaw and Mata Badal Shaw are relations of each other and they used to carry on business in partnership before the inception of tenancy and also after the creation of the tenancy, but due to hot haste and due to bona fide mistake and/or inadvertence the petitioners described themselves as Mata Badal Banwarilal Shaw in the cause title of the petition under Order 9, rule 13 of the Code of Civil Procedure as it was described in the aforesaid Ejectment Suit and such mistake being purely unintentional the same should be allowed to be amended. It was, therefore, prayed that the cause title of the application under Order 9, Rule 13 of the Code of Civil Procedure be amended and the name of the petitoners in the said application be deleted and be substituted by the name (1) Mata Badal Shaw, (2) Banwarilal Shaw all of 35a, Bechu Chatterjee Street, Calcutta. It was further prayed that a new paragraph be added being 12 (a) to the application under order 9, Rule 13 averring that the petitioners took the aforesaid tenancy as joint tenants which facts will be evident from the rent receipts issued in favour of the joint tenants. The affidavit to the said application was affirmed by Mata Badal Shaw son of Mahesh ram Shaw. ( 6 ) THE said prayer for amendment was seriously objected to by the landlord. The said application for amendment was disposed of by the Trial Court by Order No. 16 dated 23rd may, 1987. By the said order although the application for amendment was allowed, the same was made subject to objection to be taken at the time of final hearing of Order 9, Rule 13 of the Code of Civil Procedure. Ultimately by Order No. 67 dated 29 of July, 1987, the application under Order 9, Rule 13 of the Code of Civil Procedure being Misc. Ultimately by Order No. 67 dated 29 of July, 1987, the application under Order 9, Rule 13 of the Code of Civil Procedure being Misc. Case No. 972 of 1983 was allowed without however, taking into consideration the effect of the earlier order by which the application for amendment was allowed subject to the observation made therein. ( 7 ) THE present appellant moved a revisional application in the High Court being c. O. No. 2409 of 1987 against the said order wherein one of the specific grounds taken by the Division Bench was that the Court below by Order No. 61 dated 23rd May, 1987 allowed the application for amendment with the observation made therein which has a direct bearing oh the disposal of the application under Order 9, Rule 13 of the code of Civil Procedure, but the same was not taken into consideration. Such contention of the landlord was accepted and the Division Bench allowed the revisional application setting aside the Order 67 dated July 29, 1987 allowing the application under Order 9, Rule 13 and remanding the matter back to the trial Court with the direction to consider the effect of the Order No. 61 dated 23rd May, 1987 along with the description of the defendant as given in the plaint. It was further directed by the Division bench, inter alia, whether the application under Order 9, Rule 13 of the code of Civil Procedure was preferred within the statutory time limit was to be determined and, therefore, for the aforesaid purpose to come to a finding whether there was service of summons on the defendants. ( 8 ) THEREAFTER, the application under Order 9, Rule 13 of the Code of Civil Procedure was heard afresh by the trial Court and by the impugned order, the trial Court rejected the application, which is the subject-matter of appeal before us. ( 8 ) THEREAFTER, the application under Order 9, Rule 13 of the Code of Civil Procedure was heard afresh by the trial Court and by the impugned order, the trial Court rejected the application, which is the subject-matter of appeal before us. ( 9 ) BY the impugned order although the learned Judge has held that there was no service of summons upon the defendant, the application under Order 9, Rule 13 has been rejected as it has been found that the tenancy in question was not joint tenancy in favour of mata Badal and Banwarilal as urged in the application for amendment under Order 9, Rule 13, but only in the name of Mata Badal banwarilal Shaw and the application under Order 9, Rule 13 not having been made by the defendant/tenant but by some other persons, the application at their instance is not maintainable. ( 10 ) AFTER considering the respective submissions of the parties and the entire material-on records we do not find any reason to interfere with the order of the trial Court as we are in full agreement with the trial Court that the application under Order 9, Rule 13 has not been made by the tenant/defendant. ( 11 ) IT appears to us that the learned judge, after remand of the matter by the High court, has taken into consideration the effect of the Order No. 61 whcih was passed by the trial Court while allowing the application for amendment and, consequently, has made a detail enquiry as to whether tenancy in question can be said to be a joint tenancy as now alleged in the name of Mata Badal and banwarilal Shaw and has found the same to be wholly incorrect and that the tenancy was in favour of Mata Badal Banwarilal Shaw who is one person. ( 12 ) AFTER considering the materials-on-record we are in full agreement with such finding of the trial Court. Exhibit T which is the rent receipt dated 6. 9. 1977 will indicate that the tenancy stand in the name of Mata Badal Banwarilal Shaw. In the plaint, the tenant was described as Mata badal Banwarilal Shaw and it was never stated that there was a joint tenancy. Exhibit T which is the rent receipt dated 6. 9. 1977 will indicate that the tenancy stand in the name of Mata Badal Banwarilal Shaw. In the plaint, the tenant was described as Mata badal Banwarilal Shaw and it was never stated that there was a joint tenancy. From the certified copy of the petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed in title Suit No. 241 of 1984, it will appear that the said suit was filed by Mata Badal Banwarilal shaw as tenant in the said premises, against the landlord and the Electric Supply Corportion and in the affidavit to the said application it was stated that Mata Badal Banwarilal Shaw was son of Lachhman Ram (Exhibit 2' ). Further application was filed in the suit again by mata Badal Banwarilal Shaw and the affidavit was also affirmed by him. Mata Badal banwarilal Shaw also filed the application under section 21 of the West Bengal Premises tenancy Act, 1956 wherein he described himself as son of Lachhman Ram in the affidavit (Exhibit 'm' ). ( 13 ) FROM all such documents and adpleadings of the parties in the present suit as also in the said suit, it will appear that the tenant was Mata Badal Banwarilal Shaw and there was no joint tenancy in favour of Mata Badal shaw and Banwarilal Shaw as now claimed after amending the application under Order 9, rule 13. ( 14 ) AT the hearing of the application one mata Badal Shaw was examined as P. W. 1 who deposed inter alia that Banwarilal Shaw is his brother-in-law, which was not even pleaded in the application for amendment. It was also claimed that he along with Banwarilal Shaw took the tenancy in respect to the suit premises. Asutosh Paul in his cross-examination admitted tht Mata Badal Banwarilal Shaw purchased the house being premises No. 1/1, Kedar Banerjee lane, Calcutta and he denied the suggestion that he is not residing in the suit premises. One Banwarilal Shaw was examined as p. W. 2 who deposed that Mata Badal Shaw is his brother-in-law and the tenancy is the joint tenancy in the name of himself and Mata Badal shaw. In cross-examination, he admitted that he had a separate tenancy on the ground floor of the suit premises other than the disputed tenancy. One Banwarilal Shaw was examined as p. W. 2 who deposed that Mata Badal Shaw is his brother-in-law and the tenancy is the joint tenancy in the name of himself and Mata Badal shaw. In cross-examination, he admitted that he had a separate tenancy on the ground floor of the suit premises other than the disputed tenancy. ( 15 ) THE landlord Asutosh Paul who is coplaintiff in his deposition clearly stated that the person who was examined as P. W. 1 is Mata badal Banwarilal Shaw and it is he who came to him for taking the tenancy and who was inducted by him as a tenant in January, 1970. He further deposed that the said Mata Badal banwarilal Shaw left the suit house in the later part of 1982 after purchasing 1/1, Kedar banerjee Lane, Calcutta and Banwarilal Shaw who was examined as P. W. 2 has got a separate tenancy under him in respect to the suit premises and such separate tenancy was taken in July 1975. In cross-examination also he clearly asserted that Mata Badal Banwarilal Shaw is one person and Banwarilal Shaw who was examined as P. W. 2 is a different person. He further stated in cross-examination that he understood p. W. 1 as Mata Badal Banwarilal Shaw on his representation, but when he examined himself as P. W. 1 is claiming that he is Mata Badal shaw. ( 16 ) IT will, thus, clearly appear from such evidence that the person who took the tenancy was Mata Badal Banwarilal Shaw and he was known by the landlord as such on his representation and the person who is now claiming to be Banwarilal and was examined as P. W. 2 is a different person having a different tenancy in the suit premises. ( 17 ) FOR the reasons stated above, we are in full agreement with the finding of the trial court that the tenancy in question was not at all a joint tenancy in the name of Mata Badal shaw and Banwarilal Shaw, as now being alleged after amendment of the application under Order 9, Rule 13, but the tenancy stood in the name of only one person namely, Mata badal Banwarilal Shaw and Mata Badal banwarilal Shaw is one and the same person and not two different persons. ( 18 ) CONSEQUENTLY, the application under order 9, Rule 13 is not maintainable as the same has been filed not by the tenant/defendant Mata Badal Banwarilal Shaw but some other persons namely, Mata Badal Shaw and banwarilal Shaw. ( 19 ) MR. S. P. Roychowdhury, the learned senior Counsel appearing on behalf of the appellant has not really assailed such finding of the trial Court. But, his only submission before us is that the trial Court completely overlooked even if the tenancy may not be a joint tenancy in the name of Mata Badal Shaw and banwarilal Shaw, since out of two persons who made the application under Order 9, Rufe 13 one person admittedly is a defendant, the application should be held to be maintainable at the instance of the said tenant. It has been submitted by Mr. Roychowdhury that out of the two persons who made the application, Mata Badal Shaw is the tenant/defendant and the same will be evident from the plaint itself where the defendant mittedly has been described by the plaintiff as mata Badal Banwarilal Shaw alias Mata Badal shaw alias M. B. Shaw. It has been submitted mata Badal Shaw thus admittedly being defendant and he also being one of the applicants under Order 9, Rule 13, the application could not have been dismissed by the learned judge on the ground that the suit is not maintainable as the defendant has not filed the application. ( 20 ) THE argument of Mr. Roychowdhury although is quite attractive, is not tenable. ( 21 ) IN our view Mr. Saktinath Mukherjee, the learned Senior Counsel appearing on behalf of the respondent is quite correct in his submission that the tenancy having been found not to be a joint tenancy but a tenancy in favour of Mata Badal Banwarilal shaw, the application under Order 9, Rule 13 cannot be treated to be an application made by Mata badal Shaw and treating the other applicant banwarilal Shaw as surplusage. ( 22 ) RELIANCE in this connection has been placed on the Division Bench Judgment of this court in the case of (1) M/s. Parekh Brothers v. Kartick Chandra Saha and Ors. where the division Bench rejected the contention that since one of the plaintiffs is admitted by the appellant to be the landlord, one can take the names of two others as surplusage. where the division Bench rejected the contention that since one of the plaintiffs is admitted by the appellant to be the landlord, one can take the names of two others as surplusage. In such a case, the contract which has been pleaded, is different from the contract, proved by evidence. ( 23 ) IN the instant case, the contract between the landlord and the tenant has been proved to be between the landlord and the tenant Mata Badal Banwarilal Shaw and the case of joint tenancy in favour of Mata Badal Shaw and Banwarilal Shaw as sought to be made out after amending the application under Order 9, Rule 13 not having been proved by the said applicants, they cannot ask the Court to treat such application as an application made only by Mata Badal Shaw and treating banwarilal Shaw as a surplusage. ( 24 ) ADMITTEDLY, the application under order 9, Rule 13 not having been made by the tenant Mata Badal Banwarilal Shaw @ M. B. Shaw but also by another person Banwarilal shaw claiming themselves to be joint tenants which they failed to prove the application under Order 9, Rule 13 cannot be said to be made by the defendant. It has been rightly held by the trial Court that, therefore, the application cannot be maintained. ( 25 ) ALTHOUGH the learned Counsel appearing on behalf of the respondent has also assailed the finding of the trial Court that summons was not served, since we are in agreement with the view of the trial Court that the application is not maintainable not having been made by the defendant, we do not find it necessary to determine the question whether the summons was served or not and the said question, therefore, is kept open. ( 26 ) WE, therefore, dismissed the appeal and we affirm only the finding of the trial Court that the application under Order 9, Rule 13 not having been made by the defendant is not maintainable with cost assessed at 200 G. Ms. All interim orders stand vacated. Urgent certified xerox copy of this judgment, if applied for, be granted as expeditiously as possible. Pratap Kumar Ray, J.-I agree. Appeal dismissed.