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2007 DIGILAW 746 (CAL)

Kanak Prova Dey v. Asha Devi Jaisawal

2007-09-25

SANJIB BANERJEE

body2007
Judgment :- (1.) THE petitioners assail, in these proceedings under Article 227 of the constitution of India, an order passed by the Small Causes Court rejecting the petitioners application for addition of parties in an ejectment suit instituted by the first respondent against the second respondent. (2.) THE petitioners assert that they are joint tenants along with the second respondent in respect of the suit premises and are in possession of the suit premises as such. The petitioners submit that the first respondent instituted a suit before the Rent Controller, Calcutta against the second respondent, which has since been transferred to the Small Causes Court, seeking eviction on the ground of default of rent and for reasonable requirement. The plaintiff had earlier instituted another ejectment suit against the second respondent and the petitioners which was dismissed on contest. The plaintiff in that suit claimed that the petitioners herein were trespassers at the suit premises. (3.) THE present petitioners and other family members of the second respondent have filed a suit for declaration of their joint tenancy rights in respect of the same premises being T. S. Suit No. 1442 of 2001 and an interlocutory order of injunction passed therein is subsisting. The petitioners contend that they have been residents at the suit premises for more than 35 years. In the application under Order 1 Rule 10 (2) of the Code of Civil Procedure before the court below the petitioners alleged that the plaintiff had instituted the present suit by suppressing material facts and the matters in dispute cannot be adjudicated properly in the absence of the petitioners. The petitioners claim that they are necessary parties to the suit. (4.) BY the order impugned, passed on May 11, 2007, the Court below noticed that there was another suit in which the petitioners herein were plaintiffs. The Court noted the plaintiffs objection to the petitioners being impleaded as defendants. The Court held that since the scope of the suit was limited, in that the plaintiff had merely sought eviction of the second respondent herein, it could not be enlarged for an adjudication of the title of the petitioners upon their being impleaded. The Court also held that in the event the present petitioners had rights, they could resist the decree that may be passed, inter alia, under Order 20 Rule 101 of the Code. On such reasons the application stood rejected. The Court also held that in the event the present petitioners had rights, they could resist the decree that may be passed, inter alia, under Order 20 Rule 101 of the Code. On such reasons the application stood rejected. (5.) THE petitioners urge that since the petitioners are in possession and had offered themselves to be impleaded, the Court should have allowed the application so that all matters could be adjudicated at the trial of the suit rather than await a second round of adjudication at the post-decree, executionstage under Order 21 Rule 101. The petitioners suggest that since multiplicity of proceedings should be avoided, the Court should have taken the petitioners on board and should have ensured that adjudication of all matters were concluded in one go rather than in piecemeal manner. (6.) THE petitioners rely on the judgments reported at (2005)11 SCC 403 : (2005)2 WBLR (SC) 48 (Amit Kumar Shaw and Anr. v. Farida Khatoon and anr.) and (2005)3 Cal LT 101 (Graphite India Limited v. Smf. Bandana Bose and Anr.). In the Amit Kumar Shaw case, the appellants before the Supreme court applied for substitution in second appeals pending before the High Court. The appellants in that case claimed to have purchased the suit property and wanted to be substituted for the deceased vendors who were being represented in the second appeals by their legal heirs. The applications were rejected and it was in such context that the Supreme Court permitted the appellants to be impleaded in the second appeals on the construction of Section 52 of the transfer of Property Act and the interpretation of the doctrine of lis pendens. The Supreme Court held that such doctrine applies only when there is a lis pending before a Court and that a transferee pendente lite may be added as a party, subject to the Courts discretion, if his interest in the subject matter of the suit is substantial and not peripheral. The appellants before the Supreme court as transferees pendente We were directed to be impleaded in the second appeals. The context in which the Supreme Court judgment was rendered and the questions that arose in that matter are inapposite in the facts of the present case. The appellants before the Supreme court as transferees pendente We were directed to be impleaded in the second appeals. The context in which the Supreme Court judgment was rendered and the questions that arose in that matter are inapposite in the facts of the present case. (7.) IN the Graphite India Limited judgment rendered by a Single Judge of this Court under Article 227 of the Constitution, the deed of lease contained a term that the lessee could use the premises in question or transfer or permit use thereof by a sister concern. A sister concern which was in possession applied to be impleaded on the ground that the suit was collusive and the defendant therein had filed no written statement. The trial Court rejected the application for impleadment on the ground that such applicant had a right to resist dispossession on the strength of the decree at the execution stage, inter alia, under Order 21 Rules 97 to 103 of the Code. Reversing such order, it was held that since it was the fairly admitted position that the party seeking to be added as a defendant was in possession of the suit premises and had alleged fraud and collusion against the parties to the suit, such an applicant was entitled to be impleaded. The other factor that weighed with Court was that Courts should avoid multiplicity of proceedings and since the applicant in possession of the suit premises had offered to be impleaded, all matters oughtto be decided at the trial of the suit rather than at a new trial at the execution stage. There was no independent suit of the applicant seeking to be impleaded. The applicant therein had also prima facie demonstrated a right under the deed of lease permitting such applicant to possess the suit premises. The applicant prima facie established an element of collusion between the parties to the suit. (8.) IN the present case, there is no question of avoiding multiplicity of proceedings as the suit in which the petitioners are plaintiffs is already pending and the first respondent herein is a party to such suit. Further, the petitioners have unequivocally asserted their possession of the suit premises and the plaintiff, who has the carriage of proceedings, stopped their entry in the suit. The plaintiff, at her peril, resisted the impleadment application and took upon herself the consequences thereof. Further, the petitioners have unequivocally asserted their possession of the suit premises and the plaintiff, who has the carriage of proceedings, stopped their entry in the suit. The plaintiff, at her peril, resisted the impleadment application and took upon herself the consequences thereof. The issue on which the petitioners seek adjudication by being impleaded in the suit is an issue that will be adjudicated upon in the petitioners suit where the first respondent herein is a party. Rather than the order impugned prejudicing the petitioners, the petitioners can claim some equity in their favour in resisting execution of the decree that may be passed in this suit. (9.) SINCE the matter as to the petitioners rights can be adjudicated in the petitioners suit, if such issue is answered in the petitioners favour in their suit, by the principle of issue estoppel, the decree that the first respondent may obtain may not be executed against the petitioners and there will be no question of another trial and the consequential multiplicity of proceedings that the petitioners profess to avoid. Though the words "collusion" and "fraud" do not find express mention in the petitioners application under Order 1 Rule 10 before the Court below, there is an underlying suggestion of collusion that can be garnered therefrom. Yet, even if it is accepted that the petitioners application for being added as parties was founded on a charge of collusion and fraud against the parties to the suit, in view of the petitioners own suit, there is neither any irregularity committed by the order impugned nor any prejudice caused to the petitioners upon their application in this suit being dismissed. The revisional application fails. There will be no order as to costs.