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2010 DIGILAW 207 (CAL)

Mohammad Salim Khan v. Jaspal Singh Chandak

2010-02-25

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS application under Article 227 of the Constitution of India is directed against a common order being No.149 dated 10th September, 2009 by which two different applications filed by the plaintiff were rejected by the learned Trial Judge on contest. In one of such applications, the plaintiff prayed for amendment of his plaint. In the other application the plaintiff prayed for addition of the legal heirs and legal representatives of proforma defendant no.4 against whom the suit abated as will appear from the order recording abatement on 25.2.2005. The plaintiff is aggrieved by the said order. Hence, the instant application has been filed before this Court by the plaintiff/petitioner. 2. HEARD Mr. Das, learned Senior Counsel appearing for the petitioner and Mr. Chakroborty, learned Counsel appearing for the opposite party. Considered the materials on record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in rejecting the petitioners said application in the facts of the instant case. Re: Plaintiffs application for amendment of plaint. On perusal of the impugned order, this Court finds that this part of the impugned order is absolutely a non-speaking order. Though the learned Trial Judge recorded the submissions of the respective parties with regard to the merit of the plaintiffs application for amendment of plaint, but not a single sentence has been spent by the learned Trial Judge to discuss the merit of the plaintiffs said application. After recording the submissions of the parties and the decisions cited at the Bar, the learned Trial Judge abruptly came to the conclusion that the application deserves dismissal. 3. ACCORDINGLY, the same was rejected. Such an order should be deprecated in all possible manner. Under such circumstances, this Court could have remanded the said application back to the said Trial Judge for reconsideration after setting aside the impugned order, but instead of doing so this Court thinks that justice will be subserved if the said application is decided by this Court on merit, as such disposal will minimize the sufferance of the parties the and delay which may be caused further due to such remand may be avoided. 4. 4. LET me now consider the original pleading of the plaintiff and the proposed amendment which he is seeking to introduce therein, for ascertaining as to whether such amendment is necessary or not for complete adjudication of the dispute involved in the suit. The plaintiff filed a suit for declaration of his tenancy right under the proforma defendant no.4 in respect of the suit property having his right, title, interest and possession thereof with a further declaration that the defendants and neither of them has any manner of right to disturb the possession of the plaintiff and the members of his family in the suit property. The plaintiff has also prayed for a permanent injunction for restraining the defendants and/or their men and agents from disturbing the peaceful possession of the plaintiff and the members of his family in the suit property. The plaintiff stated in the plaint that the plaintiff is a monthly tenant under the proforma defendant no.4 in respect of the suit premises which is situated on the western portion of the premises no.11A, Bow Street, P.S. Bowbazar at a monthly rental of Rs.480/- payable according to the English calendar month. 5. IT was further stated therein that the defendant no.1 is in occupation of the second floor of the eastern portion of the said premises. The defendant no.1 is the father of the defendant nos.2 and 3. The defendant no.1 is a man of desperate and dangerous character and he along with his 4 associates are trying to forcibly evict the petitioner from his tenancy. But the proforma defendant no.4, did not take any effective step though she was informed about those illegal acts of the defendants repeatedly. Hence, the instant suit was filed. Immediately after filing the said suit the plaintiff filed an application for temporary injunction for restraining the defendants and her associates from creating any interference in the peaceful use and enjoyment of the suit premises by the plaintiff and the other members of his family. An ad-interim order of injunction was also sought for against the defendants in similar manner. 6. THE plaintiffs prayer for ad-interim injunction was allowed by the learned Trial Judge. Thus, the defendants were restrained from disturbing the plaintiffs possession in the suit property. Immediately thereafter the plaintiff was dispossessed from the suit property by the defendants. An ad-interim order of injunction was also sought for against the defendants in similar manner. 6. THE plaintiffs prayer for ad-interim injunction was allowed by the learned Trial Judge. Thus, the defendants were restrained from disturbing the plaintiffs possession in the suit property. Immediately thereafter the plaintiff was dispossessed from the suit property by the defendants. As such, an application for restoration of possession was filed by the plaintiff before the learned Trial Judge. The said application having been allowed by the learned Trial Judge, the defendants came up in appeal before this Honble Court and ultimately the said appeal was allowed by the Division Bench of this Honble Court. While disposing of the said appeal, it was observed by the Honble Division Bench that if any application for amendment of plaint is filed within a fortnight from the date of disposal of the said appeal, the learned Trial Judge will dispose of such application in accordance with law within a month from the date of filing such application. Being inspired by such observation of the Honble Division Bench of this Court, the plaintiff filed an application for amendment for introducing a challenge with regard to the title of the defendant nos.2 and 3 in the suit property which they are claiming through a deed of sale executed by a legal heir of the erstwhile owner of the said property, as according to the plaintiff, the vendor of the defendant nos.2 and 3 did not have any transferable interest in the suit property as his predecessor sold the suit property in favour of the plaintiffs landlady namely the proforma defendant no.4 as back as 20th September, 1972 and the suit which was subsequently filed by the original owner to avoid his sale in favour of defendant no.4 was also dismissed on contest on 13th December, 1996. The plaintiff further proposed to add that the original owner was allowed to remain in possession in the suit premises as a tenant under the proforma defendant no.4 even after the suit property was transferred to the proforma defendant herein. Subsequently a suit for eviction was filed against the said tenant but the said suit ended without any result as the said defendant died on 23rd August, 1989 during the pendency of the suit and the tenancy was abandoned. Subsequently a suit for eviction was filed against the said tenant but the said suit ended without any result as the said defendant died on 23rd August, 1989 during the pendency of the suit and the tenancy was abandoned. The plaintiff also wanted to introduce a challenge with regard to the title and possession of the defendant no.1 who was claiming his tenancy rights in the suit property by virtue of an indenture dated 28th March, 1991 manufactured by the defendant nos.1 in collusion with the defendant nos. 2 and 3 to frustrate plaintiffs interest in the suit property. 7. IT was stated by the plaintiff that the plaintiff could not raise the said challenge earlier as he was not aware of the said facts which came to his knowledge for the first time from the pleadings submitted by those defendants in the aforesaid appeal. Accordingly, the plaintiff wanted to introduce the said challenge in his plaint not only for introducing those basic facts regarding such challenge but also by adding some additional prayers seeking reliefs by way of declaration that the title deed of the defendant nos.2 and 3 and the tenancy agreement between the defendant nos.2 and 3 and the defendant no.1 are invalid and void and also for seeking incidental reliefs by way of injunction so that they cannot claim any right in the suit property on the basis of such void deeds. 8. THIS is one part of the amendment which was sought to be introduced in the plaint. In the other part of the amendment the plaintiff wanted to introduce that the proforma defendant no.4 died during the pendency of the suit and on her death the plaintiff became the tenant under the husband and son of the proforma defendant being the legal heirs of his deceased landlady. The petitioners prayer for amendment of plaint was rejected as a whole. Since the aforesaid two parts of the proposed amendment are independent of each other; let me consider the merit of the amendment application in part by part. So far as the second part is concerned, this Court finds that the said suit so far as the proforma defendant no.4 is concerned stood abated on her death as no step was taken for substituting the legal representatives of the said defendant within the stipulated period. So far as the second part is concerned, this Court finds that the said suit so far as the proforma defendant no.4 is concerned stood abated on her death as no step was taken for substituting the legal representatives of the said defendant within the stipulated period. In fact, such abatement was recorded by the learned Trial Judge on 25th February, 2005 vide order no.111 wherein it was recorded that no objection was raised by the plaintiff in recording such abatement. 9. THUS, since the suit abated so far as the proforma defendant no.4 is concerned, the Court cannot consider the rights of the plaintiff vis--vis the proforma defendant no.4 and/or her legal representatives on the basis of the cause of action disclosed in the plaint concerning the suit property until the abatement is set aside as per Order 22 Rule 9 of the Code of Civil Procedure. Admittedly, no such step has yet been taken for setting aside the abatement of the suit so far as the proforma defendant no.4 is concerned and as such, this part of the amendment wherein the plaintiff wanted to introduce that after the death of the proforma defendant no.4, he became the tenant under her heirs, is absolutely an unnecessary amendment. Thus, this part of the proposed amendment cannot be allowed. Let me now consider the other part of the proposed amendment where the plaintiff wanted to introduce a challenge with regard to the validity and/or legality of the sale deed through which the defendant nos.2 and 3 are claiming title over the suit property through Gobinda Krishna Gupta and Shaila Bala Gupta who are the legal heirs of the erstwhile owner viz. Tejpal Saran Gupta and the subsequent indenture creating a tenancy in favour of the defendant no.1 by the defendant nos.2 and 3. 10. MR. Das submitted that this part of the proposed amendment cannot be allowed as the basic structure of the suit will be changed if such amendment is allowed. In support of such submission Mr. Das cited a decision of Honble Supreme Court in the case of Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased) through LRS reported in AIR 2009 SC 1948 . After considering the said decision carefully, this Court finds that the decision which was cited by Mr. In support of such submission Mr. Das cited a decision of Honble Supreme Court in the case of Alkapuri Co-operative Housing Society Ltd. Vs. Jayantibhai Naginbhai (deceased) through LRS reported in AIR 2009 SC 1948 . After considering the said decision carefully, this Court finds that the decision which was cited by Mr. Das cannot come to his help as Para 18 of the said decision runs as follows: 18. There cannot be any doubt or dispute that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit. We have noticed hereinbefore that the plaintiff/ respondents in their application for amendment of the plaint themselves accepted the fact that the appellant herein not only had filed a suit prior to point of time to the suit filed by the deceased-respondent but had also obtained an injunction as a result whereof they did not obtain effective possession of the suit land. If that be so, in our opinion, the plaintiff/respondent in effect and substance are seeking to alter the basic structure of the suit which in the case of Sampath Kumar (supra) itself has been held to be impermissible. The said decision, thus, makes it clear that an amendment which is sought for, for introducing a cause of action which has arisen during the pendency of the suit stands on a different footing than one which had arisen prior to the date of institution of the suit. Taking into consideration of the said case, this Court finds that the facts which were sought to be introduced in the plaint by way of amendment in the said case, had arisen before the institution of the said suit. 11. THE Honble Supreme Court also noticed that an independent suit had already been filed by the plaintiff therein on the basis of the cause of action, which was sought to be introduced in the plaint of the subsequent suit by amendment. The Honble Supreme Court in this context held that such an amendment cannot be allowed. But here the facts are completely otherwise. The Honble Supreme Court in this context held that such an amendment cannot be allowed. But here the facts are completely otherwise. Here is the case where this Court finds that the plaintiff wanted to introduce certain cause of action which has allegedly arisen during the pendency of the suit making the reliefs which were claimed by the plaintiff in the original suit inappropriate in the altered situation and as such, such prayer for amendment cannot be refused on the basis of the aforesaid decision cited by Mr. Das. 12. BUT, still then, there is another hardle which the Court cannot ignore, while considering the plaintiffs prayer for amendment of plaint. Here is the case where this Court finds that the plaintiff is neither a party to the said indenture of sale through which the defendant nos.2 and 3 are claiming title in the property nor the plaintiffs alleged interest in the suit property as that of a tenant will anyway be affected by the said transaction and as such, this Court holds that the plaintiff apparently has no locus to challenge the validity of the said transaction. But if the plaintiffs locus is considered from a different angle then this Court perhaps can come to a different conclusion. Let me now consider this problem from the said different angle. The other indenture, by which an alleged tenancy was created by the defendant nos.2 and 3 in favour of the defendant no.1, certainly will affect the plaintiffs alleged tenancy which he claims in respect of the suit property. As such, can it be said that even the legality of the said transaction cannot be challenged? My answer is yes; it can be challenged as the plaintiffs interest in the suit property is dependent upon the fate of alleged tenancy of the defendant no.1. As such, can it be said that even the legality of the said transaction cannot be challenged? My answer is yes; it can be challenged as the plaintiffs interest in the suit property is dependent upon the fate of alleged tenancy of the defendant no.1. Then again, since the fate of such challenge is also dependent upon the fate of the title of the defendant nos.2 and 3 who inducted the defendant no.1 as tenant in the suit property, can it be said that even the plaintiff cannot challenge the title of the defendant nos.2 and 3 in the suit property incidentally, particularly when it is found that all such transactions were made during the pendency of the suit and furthermore this part of the challenge is also co-related with the relief already claimed in the suit against the defendants in the original plaint, wherein the plaintiff claimed a declaration to the effect that the defendant and neither of them has no manner of right to disturb the peaceful use and occupation of the plaintiff including his family members in the suit property. 13. THUS, considering this part of the amendment, this Court apparently finds that this part of the amendment cannot be rejected as such, by holding that this part of the amendment is absolutely unnecessary. But at the same time, this Court cannot ignore the submission of Mr. Das that this part of the relief which is claimed by the plaintiff in the said suit, is an incidental relief which is dependant on the principal relief claimed by the plaintiff in the suit by way of declaration of the plaintiffs tenancy right under the proforma defendant no.4 and if the principal relief cannot be granted to the plaintiff because of the abatement of the suit against her, other incidental reliefs claimed in the suit as well as the reliefs which were sought to be introduced by way of amendment cannot be granted to him. 14. THAT apart, this Court finds that though the plaintiff wanted to introduce a challenge with regard to the validity of the sale deed executed by the said Guptas in favour of the defendant nos.2 and 3, but no leave has been sought for, for adding vendors viz. Guptas as defendants in the said suit. 14. THAT apart, this Court finds that though the plaintiff wanted to introduce a challenge with regard to the validity of the sale deed executed by the said Guptas in favour of the defendant nos.2 and 3, but no leave has been sought for, for adding vendors viz. Guptas as defendants in the said suit. In my view, the validity of the said deed of sale cannot be considered by the Court in the absence of those vendors viz. Guptas. As such, this part of the amendment cannot be allowed in the absence of those Guptas. This Court, thus, holds that the proposed amendment cannot be allowed and the plaintiffs prayer for amendment, thus, stands rejected. Re: Addition of party. The effect of the abatement of the suit so far as the proforma defendant no.4 is concerned is elaborately discussed hereinabove. This Court is of the view that if the suit abates so far as the proforma defendant no.4 is concerned, her heirs cannot be added under Order 1 Rule 10(2) of the Code of Civil Procedure as the rights of the plaintiff vis-a-vis the right of the proforma defendant and/or her heirs concerning the cause of action pleaded in the plaint in respect of the suit property cannot be tried in the said suit until abatement is set aside as per Order 22 Rule 9 of the Code of Civil Procedure. In this regard, this Court finds support from the decision of the Honble Supreme Court in the case of Union of India Vs. Ramcharan and ors. reported in AIR 1964 SC 215 , which was cited by Mr. Das Accordingly, this Court holds that the plaintiffs prayer for such addition of party cannot be allowed. 15. THUS, this revisional application stands rejected. Re: CAN 1362 of 2010 Since Guptas are not parties in the suit and furthermore since no attempt was made by the petitioner to add Guptas as parties in the suit before the learned Trial Court, this Court cannot allow the plaintiffs prayer for adding Guptas as parties in this revisional application. Accordingly, the application stands rejected.