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2009 DIGILAW 382 (CAL)

Debasis Basu v. Prasanta Paul

2009-05-14

PARTHA SAKHA DATTA

body2009
JUDGMENT Partha Sakha Datta, J.: The petitioner as plaintiff instituted a Title Suit No.214 of 2007 before the learned Civil Judge (Senior Division), 2nd Court, Barasat against the O.P. praying for declaration that a purported document dated 12th June, 1996 in respect of the suit property is void and not binding upon the plaintiff, that in terms of lease deed dated 19th March, 1996 the plaintiff has no right or authority to assign and for transfer and/or part with possession of the suit property to any third party including the defendant /O.P., and for permanent injunction to restrain the O.P. from raising any construction on the suit property or portion thereof. During the pendency of the suit an application was taken out before the learned Judge in the Trial Court under Order 1 Rule 10(2) read with section 151 CPC praying for making the State of West Bengal represented by the Collector of North 24-Parganas at Barasat and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, as, proforma defendants in the suit on the ground that the property is a leasehold land measuring approximately 10.12365 Cottahs at Plot No.33, Block-DN, Sector-V, Bidhannagar in the district of North 24-Parganas and it was allotted by the State of West Bengal for promotion of his business, and since the land in dispute belongs to the Urban Development Department their presence is very much required as the said authority has to be aware of the fact that the defendant/O.P. is a rank trespasser having no connection with or title over the disputed land. Thus the said two person ought to be impleaded in the suit for proper adjudication of the dispute between the parties more particularly when the Urban Development Authority is virtually the owner of the land who allotted the land to the present plaintiff. 2. The learned Judge in the Trial Court by order dated 23rd March, 2009 rejected the petition on the ground that at the time of filing of the suit the names of the parties proposed to be added as proforma defendants were there but they have been eliminated, and now the plaintiff/petitioner wanted to implead them which is not tenable. The second ground of rejection is that without notice under section 80 of the CPC the State Cannot be impleaded as party to the suit. 3. Mr. The second ground of rejection is that without notice under section 80 of the CPC the State Cannot be impleaded as party to the suit. 3. Mr. Amal Sen, learned Counsel for the petitioner/plaintiff argued that on the strength of a purported deed of assignment the defendant intended to encroach upon the land of the plaintiff/'petitioner and is in the attempt to raise construction thereon. According to the plaintiff, the said deed of assignment is a fabricated one and not binding on the plaintiff. Yes, there was an initial thought that the State of West Bengal and the officer in the Urban Development Department should be made proforma defendants but they were not so made; but now it transpires that they are proper parties, though necessary parties, in presence of whom there should be adjudication of the dispute between the plaintiff and the defendant in respect of the subject matter of the suit. According to Mr. Sen, the owner of the property is the State of West Bengal which granted leasehold interest in favour of the plaintiff/petitioner and as the law now stands a lessee in the leasehold property has no authority to create a purported assignment in favour of the defendant/petitioner. The petitioner's case is that the purported deed of assignment allegedly standing in favour of the defendant is void and fabricated. Therefore, the presence of the State of West Bengal and the competent officer in the Urban Development Department is necessary for adjudication of the dispute and to prevent any further future litigation in which the State might be interested or badly affected. It is the submission of Mr. Sen that the learned Trial Court was wrong in holding that a notice under section 80 CPC is necessary against the State because no relief has been claimed as against the State or against the Deputy Secretary, Urban Development Department. The State or the Urban Development Department have not committed any act in their official duty which is prejudicial to the plaintiff/petitioner and the suit is not one such where notice is necessary to redress the grievance against the State. The State's presence is necessary as it is a proper party. 4. Mr. The State or the Urban Development Department have not committed any act in their official duty which is prejudicial to the plaintiff/petitioner and the suit is not one such where notice is necessary to redress the grievance against the State. The State's presence is necessary as it is a proper party. 4. Mr. Shyama Prasad Roychowdhury, the learned Senior Advocate appearing for the O.P. contended that the State or the officer of the State is not at all a necessary party to the suit or proceeding because the dispute is primarily one between the two private individuals. The sole question involved in the suit is whether a purported deed of assignment is lawful or not. The State's presence is not necessary as a proper party, far less as a necessary party. Secondly, the plaintiff/petitioner in the draft plaint introduced the name of the State of West Bengal and the competent, officer in the Urban Development Department of the Government of West Bengal but eliminated their names, rightly" so, because their presence was of no use for the adjudication of the dispute between the parties, and now without any justifiable cause an application under Order 1 Rule 10(2) read with. section 151 CPC has been taken out to incorporate the names of the State of West Bengal and the competent authority in the Urban Development Department as proforma defendants notwithstanding the fact that they could have no say in the matter and it cannot be argued logically and legally that no proper adjudication of the dispute is ever possible without the presence of the aforesaid persons. Secondly, Mr. Roychowdhury, submitted that against an order refusing to grant injunction made by the learned Trial Court, the petitioner preferred a Misc. Appeal being FMAT No. 27 of 2008 and in the memo of appeal the State of West Bengal and the Deputy Secretary, Government of West Bengal in the Urban Development Department were made proforma respondents, although in the suit they were not at all the proforma defendants. Now at the outset of hearing it was the submission of the appellant/petitioner that their names were wrongly incorporated in the memorandum of appeal and accordingly their names may be expunged. Now it does not lie in the mouth of the petitioner to say that they are the proper parties. 5. Now at the outset of hearing it was the submission of the appellant/petitioner that their names were wrongly incorporated in the memorandum of appeal and accordingly their names may be expunged. Now it does not lie in the mouth of the petitioner to say that they are the proper parties. 5. Having heard the learned Counsel for the parties, it appears to me that true it is that at the initial stage the proposed proforma defendants were proposed to be made parties but their names were eliminated. The suit was one for declaration that in terms of the lease deed dated 19th March, 1996 executed by the Government of West Bengal, the plaintiff has no right or authority to assign or transfer or to part with possession of the suit property to anybody and for declaration that the purported deed of assignment dated 12th June, 1996 is not binding and operative upon the plaintiff. It is the State of W.B. in the Urban Development Department that executed lease deed in favour of the petitioner. Whether the petitioner as a lessee has a right to create assignment in favour of any third party in respect of the property in dispute is incidentally the question involved in the suit. The principal question is whether the purported deed of assignment dated 12th June, 1996 is binding and operative upon the plaintiff or not. Though the State of W.B. is not a necessary party in the suit, it cannot be said that it is not a proper party. The State's presence in the adjudication of the dispute between the parties will help prevent generation of future legal complications or future litigation either between the plaintiff and the State of W.B. or between the State of W.B. and the O.P. The State of W.B. in, such circumstances cannot be said to be absolutely a third party having no interest in the subject-matter of the property because it was the grantor of lease. It is true that in the memo of appeal being FMAT No.27 of 2008 the State and the competent officer in the Urban Development Department were made proforma respondents but their names were deleted on the submission of the learned Counsel for the appellant-petitioner. It is true that in the memo of appeal being FMAT No.27 of 2008 the State and the competent officer in the Urban Development Department were made proforma respondents but their names were deleted on the submission of the learned Counsel for the appellant-petitioner. Such deletion of names in the memo of appeal cannot create a fetter to the plaintiff/petitioner from making an application subsequently before the learned Trial Court under Order 1 Rule 10(2) CPC. The fact is that in the suit proposed proforma defendants were not yet the proforma defendants. Therefore, incorporation of the names of the State of W.B. and another in the memo of appeal was not proper and irregular because of the fact that they were not yet parties to the suit as proforma defendants. The deletion of the names from the cause title of the memo of appeal cannot be construed to mean that the petitioner is legally prevented from taking out an application before the learned Trial Court under Order 1 Rule 10(2) of the CPC. The argument that application for addition of party should have been made before the appeal Court in FMAT No.27 of 2008 is not impressive because even if no application was made for an addition of the proposed proforma defendants in the memo of appeal that does not disentitle the plaintiff/petitioner to make prayer before the Trial Court for such addition. The reasoning of the learned Trial Court that notice under section 80 CPC was not served on the State does not carry any weight at all because no relief has been claimed against the State and furthermore the State or the public officer did not commit any act in their official capacity for redressal of which relief against them was necessary. Reference in this connection may be had to the decision in United Bank of India vs. Tatanagar Foundry Co. Ltd., reported in AIR 1974 Cal 213 , Angsuman Mukherjee vs. Shyamalmoy Pal reported in 1998 (2) Cal LT (HC) 92 and the decision of the Supreme Court reported in 2008(10) SCC 73 , Ram Kumar & Anr. vs. State of Rajasthan & Ors. Ltd., reported in AIR 1974 Cal 213 , Angsuman Mukherjee vs. Shyamalmoy Pal reported in 1998 (2) Cal LT (HC) 92 and the decision of the Supreme Court reported in 2008(10) SCC 73 , Ram Kumar & Anr. vs. State of Rajasthan & Ors. In all those decisions it has been held that whether the plaintiff does not allege any action purported to have been done by the State or its officer in discharge of their official duties, no .notice under section 80 CPC is necessary upon them. 6. Thus, upon considering of the materials it does not appear that the learned Trial Court was justified in rejecting the application under Order 1 Rule 10(2) CPC. 7. The application is allowed. The impugned order dated 23rd March, 2009 passed by the learned Civil Judge (Senior Division), 2nd Court, North 24-Parganas at Barasat in Title Suit No. 214 of 2007 is set aside. The application under Order 1 Rule 10(2) CPC stands allowed. Necessary incorporation shall be made in the record of the suit by the office of the learned Trial Court. 8. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible. Appeal allowed.