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2007 DIGILAW 136 (CAL)

VIJAYDITYA BISWAS v. DEEPA HARSI

2007-03-01

PRABUDDHA SANKAR BANERJEE

body2007
( 1 ) THE Court: This revisional application is as per Article 227 of the constitution of India and is at the instance of the plaintiff of T. S. No. 33 of 2000 pending before the learned Civil Judge, Senior Division at alipur. ( 2 ) THAT was a suit for eviction, recovery of khas possession and other consequential reliefs on the ground of default and sub-letting. ( 3 ) THE fact leading to the filing of the said suit may be summed up thus- i) That the present petitioner who is a minor purchased the property in question from the owners. ii) The said property originally belonged to one Gadhadhar Kar and his wife Parbati Kar and one Sumitra Kumar Har, since deceased, was a tenant under them at a monthly rental of rs. 300/- payable according to English calendar month. After demise of the said tenant Sumitra Kumar Har, tenancy devolved upon his widow and two sons who were defendants Nos. 1, 2 and 3 in the said suit. Notice to quit arid notice of the suit dated 18. 6. 1999 by the Advocate on behalf of the petitioner was sent to the Opposite Party Nos. 1, 2 and 3. The defendants of the said suit did not appear however, the sub-tenant Sri Subir Kumar har who is Opposite Party in the instant application filed one application on 4. 7. 2000 under Order 1 Rule 10 read with section 151 of Civil Procedure Code with prayer for adding him as a party to the said suit. iii) In the said application the said Subir Kumar Har took the plea that his elder brother Sumitra Har was a tenant under one Usha rani Devi The said Subir Kumar Har was residing in the suit premises jointly with his brother Sumitra Kumar Har since 1970 and rent receipts were granted in the names of Sumitra har and Subir Kumar Har by the previous landlady Usha Rani dev. Thereafter, the said Sumitra Kumar Har left the said premises and shifted to a Government quarter and requested the subsequent owners namely Gadhadhar Kar and Parbati Kar for change of tenancy in the name of Subir Kumar Har. Thereafter, Subir Kumar Har was accepted as a tenant and rent receipt was granted on 29. 7. 1996. Thereafter, the said Sumitra Kumar Har left the said premises and shifted to a Government quarter and requested the subsequent owners namely Gadhadhar Kar and Parbati Kar for change of tenancy in the name of Subir Kumar Har. Thereafter, Subir Kumar Har was accepted as a tenant and rent receipt was granted on 29. 7. 1996. It is the case of the Opposite party No. 4 that after transfer he tendered rent in favour of the present petitioner and when the same was refused, he was depositing monthly rent before the Rent Controller in the name of the present petitioner. iv) The present petitioner contested the said application under order 1 Rule 10 (2) of Civil Procedure Code by filing written objection wherein he took the specific plea that no specific date has been mentioned when Sumitra Kumar Har shifted his place of residence. Even the address of the Government quarter where Sumitra Kumar Har was. residing has not been mentioned. He denied that previous owners namely Gadhadhar kar and Parbati Kar and thereafter Subhas Kar and Chitra Kar issued rent receipts in favour of the Opposite Party No. 4 in the short form "s. K. Har". The present petitioner also took the plea that after purchase, the petitioner sent attornment notice on 12. 3. 1999 in the name of Sumitra Kumar Har by registered post with A/d and the same was signed by Sumitra Kumar Har and the AD Card came back. On the basis of notice, the opposite Party No. 4 gave the reply. The present petitioner apprehended that the signature of Sumitra Kumar Har was forged by the Opposite Party No. 4. It is the further case of the petitioner that as per case of the Opposite Party No. 4, Sumitra kumar Har died in the year 1991 and the Opposite Party No. 4 was accepted as tenant in the year 1996 and subsequently again in the year 1998. It is the specific plea of the present petitioner that some documents were manufactured by the opposite Party No. 4 so that he can prevail over the Court. v) It is the specific case of the present petitioner that even at the time of purchase, it has been mentioned in the Deed of transfer that Sumitra Har was one of the tenant and the said fact has been stated by the vendors namely Chitra Kar and subhas Kar. v) It is the specific case of the present petitioner that even at the time of purchase, it has been mentioned in the Deed of transfer that Sumitra Har was one of the tenant and the said fact has been stated by the vendors namely Chitra Kar and subhas Kar. vi) Accordingly, the petitioner prayed for dismissal of the application under Order 1 Rule 10 (2) of Civil Procedure Code. ( 4 ) THE Learned Trial Judge by the order impugned allowed the application under Order 1 Rule 10 (2) Cr. PC and being aggrieved by the said order of the learned Trial Judge, the instant revision has been preferred by the plaintiff/petitioner. ( 5 ) MR. S. P. Roychowdhury, learned senior counsel appearing for the petitioner challenged the order on the following grounds: i) That the Court ignored the fact that the vendors admitted that sumitra Kumar Har was the tenant with respect to the property in question. ii) That the Court ignored the fact that the documents which were relied upon by the Opposite Party No. 4 were forged and were manufactured for the purpose of the case. iii) That the Court also did not consider that the present petitioner never authorized any lawyer to admit that the Opposite Party no. 4 has been accepted as a tenant. iv) That the Court ignored the fact that the relief in the form of filing of a separate suit or filing of an application under Order 21 Rule 101 of Civil Procedure Code (in case the suit is decreed) were available to the Opposite Party No. 4 ( 6 ) THE said pleas were vehemently opposed by Mr. Indranil chakraborty, learned counsel for the respondent who contended that the Opposite Party No. 4 has become a tenant in place of Sumitra Kumar har his elder brother. It was the further contention of Mr. Chakraborty that the tenancy of S. K. Har (Subir Kumar Har) was accepted by the previous landlord and the present petitioner after his purchase cannot deny the said tenancy right of the Opposite Party No. 4. ( 7 ) IT should be stated here that the present petitioner as plaintiff filed the suit for eviction against the defendant on the ground of subletting also. ( 8 ) MR. Roychowdhury learned Senior Counsel for the petitioner took the specific plea that the Opposite Party. ( 7 ) IT should be stated here that the present petitioner as plaintiff filed the suit for eviction against the defendant on the ground of subletting also. ( 8 ) MR. Roychowdhury learned Senior Counsel for the petitioner took the specific plea that the Opposite Party. S K Har (Subir Kumar Har) forged the signature of Sumitra Kumar Har and in support of the same he drew the attention of the Court to the AD card which is page 40 of the application. ( 9 ) THE said AD Card was dated 18 3. 1999. That was sent by the present petitioner to Sumitra Kumar Har asking him to pay the rent to the present petitioner. On the basis of the same Mr. Roychowdhury contended that Subir Kumar Har admitted in his letter dated 12. 4. 1999 that he received the said letter. As such, the fraud practiced by Subir kumar Her has been accepted as he signed the acknowledgement card as Sumitra Kumar Har. ( 10 ) I have already stated that Mr. Roychowdury took the specific plea that some documents were manufactured for the purpose of this case and for this he relied upon the said AD card along with some other documents which were annexed in the revisional application. ( 11 ) MR. Roychowdhury drew the attention of the Court to the fact that the said Subir Kumar Har admitted in his application before the court below under Order 1 Rule 10 (2) that rent receipts were granted in his name some time by the previous landlord. He drew attention of the Court to page 25 of the application and on the basis of the same it was submitted that there is nothing on record to show that rent receipt was granted in favour of Subir Kumar Har (not as S. K. Har) as tenant with respect to the property in question. He also drew the attention of the Court to the order dated 15. 12. 2006 by which the Opposite Party was directed to file rent receipt by swearing an affidavit (Subir Kumar har ). As the said Opposite Party did not file any rent receipt in terms of the said order, the Court is bound to take adverse presumption. ( 12 ) AT the same time, Mr. Roychowdhury, learned Senior Counsel for the petitioner drew the attention of the Court to letter No. 28. As the said Opposite Party did not file any rent receipt in terms of the said order, the Court is bound to take adverse presumption. ( 12 ) AT the same time, Mr. Roychowdhury, learned Senior Counsel for the petitioner drew the attention of the Court to letter No. 28. 2. 1998 by which one Mr. Samir Kumar Samanta informed Subir Kumar Har that he has been accepted as a tenant in place of Sumitra Kumar Har. ( 13 ) HE also drew the attention of the Court to page 28 of the application. e. one documet dated 29. 7. 1996 by which Gadhadhar Kar informed Subir Kumar Har that Mr. N. Roychowdhury has been appointed as Caretaker oi -he building. ( 14 ) MR. Roychowdhury drew the attention of the Court that the front portion of the said document has been removed and it is apparent that name of Mr. Subir Har (S. K. Har) has been written subsequently at a place where the name of the addressee is not mentioned. ( 15 ) HE drew the attention of the Court also to the fact that the signature and some words in the said letter were written by different person and as such the Court should come to the conclusion that the said document has been manufactured for the purpose of this case. ( 16 ) I have already stated that Mr. Roychowdhury argued that documents were manufactured by Subir Kumar Har for the purpose of this case and by manufacturing those documents, the lower Court was prevailed over and the Court, thereafter passed the impugned order. He also drew the attention of the Court to page 31 of the application and on the basis of the same it was submitted that G. D. Kar representing Gadhadhar Kar signed in a place which is not the place where the signature of the landlord of the premises is to be given. ( 17 ) IT is seen from the said page that the said signature namely g. D. Kar has been put beneath the typed writing Gadhddhar Kar, landlord of the premises No. 23/51, Gariahat Road, Kolkata-700 029. ( 18 ) IN course of his argument Mr. ( 17 ) IT is seen from the said page that the said signature namely g. D. Kar has been put beneath the typed writing Gadhddhar Kar, landlord of the premises No. 23/51, Gariahat Road, Kolkata-700 029. ( 18 ) IN course of his argument Mr. S. P. Roychowdhury learned senior counsel for the petitioner challenged the letter of Samir Kumar samanta, Advocate and contended that the said Samir Kumar samanta was never authorized by Gadhddhar Kar to accept Subir kumar Har as a tenant. He also drew the attenton of the Court to annexure 'b' which is copy of the application under Order 1 Rule 10 (2) and on the basis of the same he contended that no date has been given when the employee of postal department went to the premises and called the defendants. He further pointed out that the address where sumitra Kumar Har shifted his residence has not been mentioned. ( 19 ) MR. Roychowdhury further contended that when the property in question was sold to the present petitioner, the vendors were not in the know about the death of Sumitra Kumar Har as in the said transfer deed, the names of the tenants were mentioned including the name of Sumitra Kumar Har. The said transaction was of the year 1999. ( 20 ) ON the basis of the same Mr. Roychowdhury contended that even in the year 1999 the vendors namely Subhas Chandra Kar and Chitra kar were not in the know that Sumitra Kumar Har died. ( 21 ) MR. Roychowdhury contended further that it was a case for eviction of a tenant on the ground of subletting along with other grounds. It was his contention that in a case of subletting, the name of the person in whose favour subletting was granted is not a necessary party and the Court ignored the said fact. ( 22 ) MR. Roychowdhury took the specific plea that Subir Kumar Har can get his relief by filing a separate suit or by filing an application under Order 21 Rule 101 if this suit is decreed and the decree is put into execution. Alleged independent right of Subir Kumar Har can be agitated separately but no in this case. ( 23 ) MR. Indranil Chakraborty learned counsel for the Opposite Party subir Kumar Har however, challenged the said pleas vehemently on the basis of Materials on record. Alleged independent right of Subir Kumar Har can be agitated separately but no in this case. ( 23 ) MR. Indranil Chakraborty learned counsel for the Opposite Party subir Kumar Har however, challenged the said pleas vehemently on the basis of Materials on record. He contended that the Court rightly allowed the application under Order 1 Rule 10 (2) Civil Procedure Code as Subir Kumar Har was able to make out his case that he is a tenant and the property in question was never sublet to him. He contended on the basis of the materials on record that Sumitra Kumar Har died long ago and Subir Kumar Har was residing in the said family with his older brother Sumitra Kumar Har and his wife. As the tenancy of sumitra Kumar Har was changed in favour of Subir Kumar Har, he acquired independent right over the property in question as a tenant and as such, he was rightly impleaded as a party defendant to the suit by the learned Trial Judge. It was the under contention of Mr. Chakrabqrty that the interest of the present petitioner would not be prejudiced if the order of the learned Trial Judge is affirmed. As Subir kumar Har has acquired independent right, he also acquired the right to contest the said suit as a tenant. ( 24 ) AT the same time it was contended on behalf of the Opposite party Subir Kumar Har that the pleas regarding genuineness of the documents cannot be considered by this Court at this stage and the trial Court has the capacity or power to verify the genuineness of those documents after getting proper evidence. As the contesting Opposite party has been able to make out prima facie case that he is a tenant with respect to property in question, the learned Trial Judge rightly allowed the application by which he was allowed to be impleaded as a party defendant to the suit. ( 25 ) I have already stated that Mr. S. P. Roychowdhury, learned senior counsel for the petitioner challenged the impugned order on the ground that on the basis of documents relied upon by the Opposite Party No. 4 before the Court below, the Court below ought to have come to the conclusion that those were forged and were manufactured specially for the purpose of this case Mr. S. P. Roychowdhury, learned senior counsel for the petitioner challenged the impugned order on the ground that on the basis of documents relied upon by the Opposite Party No. 4 before the Court below, the Court below ought to have come to the conclusion that those were forged and were manufactured specially for the purpose of this case Mr. S. P. Roychowdhury, contended further that the present Opposite Party No. 4 was able to convince the Court on the basis of those documents and obtained favourable order. As such, Mr. S. P. Roy Chowdhury, contended that this Court should pass appropriate order. ( 26 ) WE are concerned with the impugned order by which the prayer of Opposite Party No. 4 under Order 1 Rule 10 (2) of Civil Procedure Code was allowed and he was allowed to be impleaded as a defendant to the suit. Whether those documents are genuine or riot is required to be considered by the trial judge after adducing evidence. This Court, at this stage should not pass any order by which it would not be possible for the Trial Judge to pass appropriate order on merit. ( 27 ) I have already stated that Mr. Roychowdhury, took the specific plea that the remedy which is available to the Opposite Party No. 4 is by filing a separate suit or an application under Order 21 Rule 101 of civil Procedure Code, if the suit is decreed by the Court below and the same is put into execution. ( 28 ) ON the basis of materials on record, I am of clear opinion that there was error on the part of the learned Trial Judge in allowing the application under Order 1 Rule 10 (2) of Civil Procedure Code. ( 29 ) LET me now discuss the cases referred by Mr. Roychowdhury, at the time of hearing. ( 30 ) IN Pallav Kumar Banerjee and Ors. v. Chandrakala Lal and Am. , reported in 2001 (1) CHN 490 the Hon'ble Court came to the conclusion that the remedy of the defendants lies either by filing a fresh suit for declaration of his tenancy right or to resist the decree, if obtained by way of adjudication under Order 21 Rule 101 of Civil Procedure Code. ( 31 ) IN the case in between Jagat Enterprises v. Anup Kumar Daw and ors. ( 31 ) IN the case in between Jagat Enterprises v. Anup Kumar Daw and ors. , reported in AIR 1977 Calcutta 209, the Division Bench of this court came to the conclusion that a sub-lessee has no right to claim independent right, the sub-lessee in such case has his right to assert and defend his right or to challenge the decree as being in fraud of his right all in other appropriate proceeding to be initiated by him. ( 32 ) IN the case between Narayan Chandra Garai and Ors. v. Matri bhander Pvt Ltd. and Anr. , reported in AIR 1974 Calcutta 358 the Hon'ble court opined that a person is not to be addeci as a defendant merely because he or she would be incidentally effected by the Judgment. ( 33 ) THE case in between Benimadhab Mahrotra v. Howrah Flour Mills ltd. and Anr. , reported in 1989 CWN 76 is of no help to Mr. Roychowdhury's client. ( 34 ) THE case in between Dattatraya Laxman Kamble v. Abdul Rasul moulali Kotkunde and Anr. , reported in (1994)4 SCC 1 will also not help mr. Roychowdhaury's client. ( 35 ) IN view of the discussion as made by me and also on the basis of materials on record, I am of clear opinion that the learned Trial judge committed error in allowing the application under Order 1 Rule 10 (2) of Civil Procedure Code filed by the Opposite Party No. 4. The learned Trial Judge did not consider that the option was with the opposite Party No. 4 by filing a fresh suit or by filing an application under Order 21 Rule 101 of Civil Procedure Code, if the suit is decreed and the decree is put in execution. ( 36 ) AS such, the order of the learned Trial Judge cannot be supported. Accordingly, this revisional application is allowed on contest but without any cost. The impugned order passed by the learned Trial judge is hereby set aside. Needless to say that I have not gone through the merit of the case and any observation made in the body of this order will not prejudice the learned Trial Judge in passing appropriate order in future. Urgent xerox certified copy of this order be given to the parties within 10 days from the dale of this order on proper application.