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2007 DIGILAW 515 (CAL)

Lalita Sen v. Indira Ghose

2007-07-15

PARTHA SAKHA DATTA

body2007
Judgment :- (1.) C.O. No. 4384 of 2006, C.O. No. 4385 of 2006, C.O. No. 4595 of 2006 and C.O. No. 4596 of 2006 are being disposed of by this common order as the parties are the same and all the applications have arisen out of the order dated 8th September, 2006 passed by learned Civil Judge (Senior Division), 9th Court, Alipore in Title Suit No. 98 of 1997 and the order dated 10th November, 2006 passed in Title Suit No. 80 of 2004. (2.) TITLE Suit No. 98 of 1997 was instituted by Smt. Abha Sen and Ors. against one Smt. Indira Ghosh praying for recovery of possession of the suit property on the ground of expiry of the period of licence. According to the plaintiffs of the suit, leave and licence was granted by an agreement on 1st august, 1994 for occupation of the defendant for a period of three years and the said period of three years expired with the expiry of 1st of August, 1997. The defendant in the written statement, inter alia, contended that she was a tenant in the suit premises under the plaintiffs and not a licensee in the ground floor and first floor of the premises No. 1/403, Gariahat Road. It was further contended that the plaintiffs were not the sole owners of the property. One khitish Chandra Sen was the owner who died intestate on 27th February, 1977 leaving two brothers Joytish Chandra Sen and Dr. Satish Chandra Sen. They became the joint owners of the premises on the death of Khitish Ch. Sen to the extent of 1/2 (half) share each. Joytish Ch. Sen executed a Will in respect of his share and died on 27th August, 1989. The plaintiffs were the legatees of the Will of the said Joytish Ch. Sen, while Dr. Satish Ch. Sen died intestate leaving his daughter Smt. Santa Shima Mitra Chenoy as his heir. Santa Shima mitra Chenoy died leaving a Will bequeathing her share to two sons namely, kamal Mitra Chenoy and Dilip Mitra Chenoy each of whom become owner to the extent of 1/4 (one fourth) share each in the property. Thus the plaintiffs have only undivided 50% share. (3.) IN the suit for eviction, the defendant filed an application under order 6 Rule 17, C.P.C. wherein certain facts have been sought to be incorporated. The facts are that Ashok Kr. Thus the plaintiffs have only undivided 50% share. (3.) IN the suit for eviction, the defendant filed an application under order 6 Rule 17, C.P.C. wherein certain facts have been sought to be incorporated. The facts are that Ashok Kr. Basu said to be the constituted attorney of the present plaintiffs in this suit had filed a Title Suit being No. 106 of 1998 against Kamal Mitra Chenoy and Dilip Mitra Chenoy, grand-sons of late Satish Ch. Sen and in the said suit the plaintiffs moved an application under Order 39 Rules 1 and 2, C.P.C. for an injunction before the learned Civil judge (Senior Division) 3rd Court, Alipore. The plaintiffs of that suit who are also the plaintiffs herein preferred a Miscellaneous Appeal being No. M.A. 244 of 1998 which is pending. In the said appeal Kamal Mitra Chenoy and Dilip mitra Chenoy filed a written objection contending, inter alia, that they namely, kamal Mitra Chenoy and Dilip Mitra Chenoy were the owners of the property to the extent of 50% share and the defendant of the present suit Smt. Indira ghosh is a tenant in the ground floor of the suit premises. It was further proposed to be added by way of amendment that in another title Suit being No. 39 of 2000 instituted before the learned Civil judge (Senior Division) 9th Court, Alipore against one Aroti Mukherjee, one Dinesh Ch. Sen former constituted attorney of the plaintiffs who inducted the present defendant as a tenant under the guise of leave and licence averred that Smt. Indira Ghosh, defendant herein used to pay rent by cheque. This is one part of the amendment. (4.) THE other part of the petition filed by the defendant, Smt. Indira ghosh was for addition of the said Kamal Mitra Chenoy and Dilip Mitra Chenoy as party defendants under Order 1 Rule 10 (2), C.P.C. in the context of their stand in the Title Suit No. 106 of 1998 against the present plaintiffs vis-a-vis the status of the present defendant. (5.) THE said Smt. Indira Ghosh has filed a Title Suit being T.S. No. 80 of 2004 against the plaintiffs of this T.S. No. 98 of 1997 praying for declaration that she is a tenant in the suit premises under the defendants who were the plaintiffs in T.S. No. 98 of 1997. (5.) THE said Smt. Indira Ghosh has filed a Title Suit being T.S. No. 80 of 2004 against the plaintiffs of this T.S. No. 98 of 1997 praying for declaration that she is a tenant in the suit premises under the defendants who were the plaintiffs in T.S. No. 98 of 1997. Thus, the contents of the written statement in T.S. No. 98 of 1997 have become the plaint narrative of Smt. Indira Ghosh as plaintiff in T.S. No. 80 of 2004. In the suit also Smt. Indira Ghosh filed an amendment petition under Order 6 Rule 17, C.P.C. read with Order 1 Rule 10 (2), C.P.C. to bring about that amendment which was exactly prayed for in t. S. No. 98 of 1997 wherein she was the defendant. (6.) THE subject matter of amendment in both the suits proposed by Smt. Indira Ghosh as defendant in the suit for eviction and as plaintiff in suit for declaration of her tenancy is the same. Learned Civil Judge (Senior Division) 9th Court, Alipore by an order dated 8th September, 2006 (suit for eviction) allowed the amendment in part, that is, the amendment to the extent of narrative of Kamal Mitra Chenoy and Dilip Mitra Chenoy in T.S. No. 106 of 1998 to the effect that Smt. Indira Ghosh was a tenant in the premises was allowed, while prayer for addition of the said two persons as party defendants inthe eviction suit under Order 1 Rule 10 (2), C.P.C. was refused on the ground that no relief was claimed against Kamal Mitra Chenoy and Dilip Mitra Chenoy. (7.) IN the suit of Smt. Indira Ghosh being T.S. No. 80 of 2004 the learned Trial Court made a separate order on 10th November, 2006 on the selfsame amendment petition and while it allowed the amendment to the extent of contention of Kamal Mitra Chenoy and Dilip Mitra Chenoy in T.S. No. 106 of 1998 against the plaintiffs so far as the status of Smt. Indira Ghosh is concerned, but rejected the prayer for addition of the said two persons under order 1 Rule 10 (2) of C.P.C. in Smt. Indira Ghoshs suit. (8.) NOW the plaintiffs of T.S. No. 98 of 1997 Smt. Lalita Sen and Ors. (8.) NOW the plaintiffs of T.S. No. 98 of 1997 Smt. Lalita Sen and Ors. filed two revisional applications being C.O. No. 4595 of 2006 and 4596 of 2006 protesting against allowance of the amendment under Order 6 Rule 17 by the learned Trial Court in both the suits to the extent of incorporation of the contention of Kamal Mitra Chenoy and Dilip Mitra Chenoy in T.S. No. 106 of 1998 against them so far as the status of Smt. Indira Ghosh was concerned. (9.) SMT. Indira Ghosh filed C.O. No. 4384 of 2. 006 and C.O. No. 4385 of 2006 protesting against the Trial Courts order rejecting the prayer for addition of party in both the suits. (10.) I have heard Mr. S.P. Roychowdhury, learned senior Advocate appearing for the petitioners in C.O. No. 4595 of 2006 and 4596 of 2006. Mr. Roychowdhury argues that the learned Trial Court was absolutely wrong in allowing the amendment under Order 6 Rule 17, C.P.C. as the subject matter of the proposed amendment not at all necessary for adjudication of the real question involved in the suit as the contention of Kamal Mitra Chenoy and dilip Mitra Chenoy allegedly made in the injunction application filed by them in connection with T.S. No. 106 of 1998 against Lalita Sen and Ors. has no relevance at all for the purpose of deciding the question as to whether smt. Indira Ghosh, the defendant in T.S. No. 98 of 1997 was a licensee or a tenant. The second branch of argument of Mr. Roychowdhury is that, in view of the provision of section 116 of the Transfer of Property Act, a tenant or a licensee cannot challenge the ownership of the property of the landlord and it has not been denied that Lalita Sen and Ors. inducted the defendant Smt. Indira Ghosh as licensee in the suit premises, though the said defendant claimed to be a tenant. Mr. Roychowdhury further submitted that the proposed amendment may be translated into evidence in view of the totality of contentions already raised in the written statement but the amendment sought for is not necessary at all. With respect to rejection of the prayer for addition of party under Order 1 Rule 10 (2), C.P.C. Mr. Roychowdhury submits that that part of the order was right and no exception can be made thereto. (11.) MR. With respect to rejection of the prayer for addition of party under Order 1 Rule 10 (2), C.P.C. Mr. Roychowdhury submits that that part of the order was right and no exception can be made thereto. (11.) MR. Aniruddha Chatterjee, learned Advocate appearing for the petitioners in C.O. No. 4384 of 2006 and 4385 of 2006 submits that the learned trial Court was not justified at all in rejecting Smt. Indira ghoshs prayer for addition of parties because once amendment was allowed under Order 6 Rule 17, C.P.C., to the extent of incorporation of the averment of Kamal Mitra Chenoy and Dilip Mitra Chenoy in the title suit against the plaintiffs namely Smt. Lalita sen and Ors., there was no point in rejecting the prayer for addition of those persons as proforma defendants. (12.) I have heard the learned Advocates for the parties and I find that no exception can be taken at all to the allowance by the learned trial Court of smt. Indira Ghoshs petition under Order 6 Rule 17, C.P.C. because in the original written statement it was exhaustively narrated that the plaintiffs were not the sole owners as Dr. Satish Ch. Sen died leaving Santa Shima Mitra chenoy who died leaving Kamal Mitra Chenoy and Dilip Mitra Chenoy who in turn inherited the property to the extent of 50% share. In the proposed amendment it was sought to be elaborated further that the said Kamal Mitra chenoy and Dilip Mitra Chenoy in the T.S. No. 106 of 1998 which was between them and Smt. Lalita Sen and Ors. contended before the learned trial Court in connection with the injunction application that Smt. Indira Ghosh was a tenant in the suit premises. Therefore, amendment was not absolutely foreign to the original written statement and secondly in the original written statement it has not been deined that the plaintiffs Smt. Lalita Sen and Ors. were the landlord/ owners. Both in the original written statement and in the proposed amendment of the written statement it was conveyed that besides the plaintiffs Kamal Mitra chenoy and Dilip Mitra Chenoy were also the owners and that it was the stand of the said co-owners that Smt. Indira Ghosh was a tenant of the premises. Since in T.S. No. 80 of 2004 Indira Ghosh prayed for a declaration of her tenancy such amendment was not at all irrelevant. Since in T.S. No. 80 of 2004 Indira Ghosh prayed for a declaration of her tenancy such amendment was not at all irrelevant. Accordingly the learned trial Court was justified in allowing the amendment. (13.) WITH regard to Indira Ghoshs second prayer for making Kamal mitra Chenoy and Dilip Mitra Chenoy as defendants in both the suits under order 1 Rule 10 (2) of the C.P.C. the learned trial Court assigned the reason that they need not be made defendants because no relief was claimed against them. This was the finding in the order dated 8.09.2006 in T.S. No. 98 of. 1997 and the order dated 10.11.2006 passed in T.S. No. 80 of 2004. In all reasonableness the two suits shall have to be heard by the learned trial Court analogously. I understand, carriage of the suit is of the plaintiff in T.S. No. 80 of 2004, Smt. Indira Ghosh who prayed for a declaration of her tenancy against smt. Lalita Sen and Ors. Now in order to substantiate her case of being a tenant she has rightfully introduced her amendment conveying the stand in T.S. No. 106 of 1998 of Kamal Mitra Chenoy and Dilip Mitra Chenoy and the said amendment has been allowed which means that Smt. Indira Ghosh can bring evidence in support of such pleading. If that be the position, there is no reason why Kamal Mitra Chenoy and Dilip Mitra Chenoy should not be added as a party defendant in T.S. No. 80 of 2004 to buttress the case of Smt. Indira ghosh as plaintiff to the effect that she was a tenant and not a licensee. Whether she is a licensee or a tenant is a matter for trial. The observation of the learned trial Court that the said Kamal mitra Chenoy and Dilip Mitra Chenoy were not necessary parties to the suit because no relief was claimed against them is erroneous. The law is well-settled that a person may be a party to a suit even if no relief is claimed against him provided his presence is necessary for proper adjudication of the subject matter in controversy. Kamal Mitra Chenoy and dilip Mitra Chenoy are proper parties. Could Smt. Lalita Sen and Ors. The law is well-settled that a person may be a party to a suit even if no relief is claimed against him provided his presence is necessary for proper adjudication of the subject matter in controversy. Kamal Mitra Chenoy and dilip Mitra Chenoy are proper parties. Could Smt. Lalita Sen and Ors. have any scope of raising objection if in the original plaint itself (i.e. T.S. No. 80 of 2004) Smt. Indira Ghosh had made Kamal Mitra Chenoy and Dilip Mitra Chenoy as proforma defendants ? If that could have been done by her in the original plaint, then there was no reason why in the proposed amendment they cannot be made parties in T.S. No. 80 of 2004. But addition of the said two persons in the suit of the plaintiffs in T.S. No. 98 of 1997 is not necessary because both the suits shall have to be tried analogously, and more particularly when the carriage of the suit is of the plaintiffs who do not desire their presence in the matter of eviction. (14.) ACCORDINGLY, while I hold that the learned trial Court was justified in allowing amendment to the extent of incorporation of the matters relating to the stand of Kamal Mitra Chenoy and Dilip Mitra Chenoy vis-a-vis Smt. Indira ghosh, I hold that the learned trial Court was not justified in rejecting the prayer of Smt. Indira Ghosh for bringing the said two persons as proforma defendants in T.S. No. 80 of 2004, but was justified in rejecting the prayer of Smt. Indira ghosh for addition of parties in T.S. No. 98 of 1997. (15.) ACCORDINGLY I allow the C.O. No. 4385 of 2006 and dismiss C.O. No. 4384 of 2006, C.O. No. 4595 of 2006 and C.O. No. 4596 of 2006. The prayer for addition of party as was sought for before the learned trial Court in the suit of the plaintiff of T.S, No. 80 of 2004 under Order 1 Rule 1o (2), C.P.C. is allowed. Let Kamal Mitra Chenoy and Dilip Mitra Chenoy be added as proforma defendants in T.S. No. 80 of 2004. (16.) A copy of this order shall be sent to the learned Civil Judge (Senior division), 9th Cqurt Alipore in connection with T.S. Case No. 98 of 1997 and t. S. No. 80 of 2004.