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2008 DIGILAW 891 (CAL)

Threety Irani v. Sushma Rathi

2008-09-04

PRASENJIT MANDAL

body2008
JUDGMENT: PRASENJIT MANDAL, J. (1.) THIS application has arisen out of the order no. 79 dated 30.08.2007 passed by the learned Civil Judge (Junior Division), Second Court at Alipore in T. S. No. 159 of 2003 whereby she has rejected the application for striking out the name of the defendant/petitioner herein from the plaint. (2.) THE plaintiff/opposite party no. 1 filed the said title suit for declaration and permanent injunction. In that suit, the original defendant no. 1 appeared and he died subsequently. Then the petitioner before me was substituted for the original defendant no. 1. According to her stand, after death of her husband, she was suffering from financial crisis and so under compelling circumstances she had sold her flat bearing no. 4/c of the premises No. 21/b, Belvedere Road, Kolkata. After such sale of the flat, she lost interest in the suit property. So she has prayed for striking out her name from the cause title. Her application was rejected by the learned Civil Judge (Junior division) by the impugned order. Being aggrieved by the said order, she has preferred this application. (3.) UPON hearing the learned Advocate of both the sides and on perusal of the record, I find that the learned Advocate for the petitioner has contended that after assignment of her interest in the suit property the petitioner is not at all a necessary party or proper party to solve the dispute between the parties, so, her name should be struck out from the cause title of the plaint. The learned Advocate for the opposite party has raised rival contention against such submission and he has supported the order impugned. He has also contended that the so-called deed of sale is not properly stamped and there is no proof of registration of the same. So the learned Trial Court was right in not accepting the prayer of the defendant no. 1/petitioner herein. (4.) UPON hearing the submission of both the sides, I find that after death of the original defendant no. 1, the substituted defendant no. 1/petitioner herein filed the application for striking out her name from the cause title of the plaint on the ground that she had transferred her right, title and interest in the flat no. 4/c of the Premises No. 21/b, Belvedere Road, Kolkata. 1, the substituted defendant no. 1/petitioner herein filed the application for striking out her name from the cause title of the plaint on the ground that she had transferred her right, title and interest in the flat no. 4/c of the Premises No. 21/b, Belvedere Road, Kolkata. So she is not at all a necessary party and no relief could be granted against such substituted defendant no. 1. From the materials on record, I find that the petitioner has filed the copy of the deed and one receipt showing that the original deed of sale was handed over with the Registrar of Assurance for registration. With regard to the filing of the copy of the deed, learned advocate for the petitioner has submitted that the original deed is lying with the vendee and it is difficult for her client to get copy of the same and in fact he has filed the copy of the deed which bears the seal of the office of the Registrar of Assurance and also one receipt showing deposit of the deed of sale and payment of the duties with the office of the Registrar of assurance, Kolkata. From the materials on record, I also find that the petitioner has filed one affidavit in support of her contention that she had transferred her right, title and interest in the flat of the premises in suit. There is no counter objection supported by any affidavit with regard to such contention of the petitioner herein. (5.) IN the circumstances, I think that there is no hesitation in accepting the contention of the petitioner herein that she had transferred her right, title and interest in flat no. 4/c of the premises in suit. So, after assignment of her right, title and interest in the suit property, she is neither a necessary party nor a proper party for effecting disposal of the matter in dispute in suit. So if her name is struck out from the cause title of the plaint, the plaintiff/opposite party will not be prejudiced in any way. She has the scope of making addition of party of the vendee under Order 22 Rule 10 of the C. P. C. if she is advised to do so. So if her name is struck out from the cause title of the plaint, the plaintiff/opposite party will not be prejudiced in any way. She has the scope of making addition of party of the vendee under Order 22 Rule 10 of the C. P. C. if she is advised to do so. (6.) I, therefore, hold that the learned Civil Judge (Junior division) has failed to exercise his jurisdiction properly and he has committed an error in exercising his jurisdiction by rejecting the petition for striking out the name of the defendant no.1. The order impugned is therefore not sustainable in law. (7.) ACCORDINGLY, the application is allowed. The impugned order is hereby set aside. The application of the substituted defendant no. 1 for striking out her name from the cause title of the plaint stands allowed. The plaintiff is hereby given liberty to take steps under order 22 Rule 10 of the C. P. C. if she is advised to do so. Both the parties are directed to appear before the learned civil Judge (Junior Division), Second Court at Alipore on 22. 09. 2008 at 10.00 a.m. for receiving further directions from the learned Civil Judge (Junior Division). Interim order is hereby vacated. There will be no order as to costs.