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2010 DIGILAW 980 (CAL)

Shamsul Alam Mondal v. Jahanara Begum

2010-08-13

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendant no.3 and is directed against the order no.106 dated September 12, 2006 passed by the learned Civil Judge (Junior Division), Third Court, Alipore in Title Suit No.196 of 1987 thereby rejecting an application under Section 151 of the Code of Civil Procedure filed by the defendant no.3/petitioner. 2. THE short matter is that the plaintiff/opposite party no.1 instituted a suit for eviction being the Title Suit No.196 of 1987 against the petitioner/defendant no.2, the opposite party no.2 and the defendant no.1 (since deceased) from the property in suit as described in the schedule of the plaint before the learned Munsif, Third Court, Alipore for recovery of possession after revocation of licence and other reliefs. In that suit, the defendant no.2 and defendant no.3/petitioner herein appeared and they jointly filed a written statement denying all the materials allegations made in the plaint. They contended that they inherited the suit property also. Such a written statement was filed on June 26, 1992. Thereafter, they were proceeding with the suit jointly as defendants. Then, on March 28, 2006, the defendant no.2 filed a supplementary to the written statement admitting that he was a licencee in respect of the suit property. On knowing such fact, the defendant no.3/petitioner herein filed an application under Section 151 of the C.P.C. praying for dismissing the supplementary to the written statement filed by the defendant no.2. That petition was rejected by the order impugned holding that since the defendant nos.2 and 3 had filed a joint written statement, either of them cannot take a contrary stand to the prejudice of the other party. So the learned Civil Judge (Junior Division) rejected the said petition. Being aggrieved by the order of rejection of that application, the defendant no.3 has come up with the application. Mr. Mitra, learned Advocate appearing on behalf of the petitioner, submits that since both the defendant nos.2 and 3 have filed a joint written statement controverting the claim of the plaintiff, the defendant no.2 alone cannot admit the claim of the plaintiff by way of a supplementary to the written statement and so the learned Civil Judge was not justified in rejecting the said petition. On the contrary, Mr. On the contrary, Mr. Bhattacharya, learned Advocate appearing on behalf of the plaintiff/opposite party, submits that the defendant no.2 cannot admit on behalf of both the defendant nos.2 and 3. But the statement made by the defendant no.2 in the supplementary to the written statement can well be accepted as an admission and so an effective decree can be passed against the defendant no.2 on admission. But it cannot in any way be taken as an admission on behalf of the defendant no.3 at all. He has submitted to pass appropriate orders accordingly. 3. THEREFORE, the two points involved in the application are as follows: (1) whether the supplementary to the written statement filed by the defendant no.2 can be accepted at all and (2) Whether the learned Trial Judge was justified in rejecting the application under Section 151 of the C.P.C. filed by the defendant no.3/petitioner herein. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff/opposite party filed the suit for eviction of the defendants from the property in suit as described in the schedule of the plaint on the ground that the defendants are mere licencees in respect of the suit property. In that suit, the defendant nos.2 and 3 were contesting and they filed a joint written statement on June 26, 1992 controverting the claim of the plaintiff. Their specific claim is that they inherited the suit property as well. The defendant nos.2 and 3 were contesting the suit all along with such a specific stand. Thereafter, on March 28, 2006 the defendant no.2 alone filed a supplementary to the written statement admitting that he is a licencee with regard to the property in suit under the plaintiff thereby admitting the claim of the plaintiff as made in the plaint. 4. SINCE both the defendant nos.2 and 3 have filed a joint statement denying the claim of the plaintiff that the defendants are licencees under the plaintiff; any admission made by the defendant no.2 alone cannot have any impact upon the defendant no.3 at all. It might at best serve as an admission on behalf of the defendant no.2 only. 4. SINCE both the defendant nos.2 and 3 have filed a joint statement denying the claim of the plaintiff that the defendants are licencees under the plaintiff; any admission made by the defendant no.2 alone cannot have any impact upon the defendant no.3 at all. It might at best serve as an admission on behalf of the defendant no.2 only. Therefore, I am of the view that the supplementary to the written statement dated March 28, 2006 could well be considered as an admission of the defendant no.2 only with regard to the claim of the plaintiff in the suit and on the basis of such an admission, a decree could well be passed under Order 12 Rule 6 of the C.P.C. against the defendant no.2 only. But the defendant no.3 is not bound with such an admission and it has no impact upon the defendant no.3 at all. The learned Trial Judge can well pass a decree on admission under Order 12 Rule 6 against the defendant no.2 on the basis of the supplementary to the written statement dated March 28, 2006. But such admission cannot cause any prejudice to the defendant no.3 who is controverting the claim of the plaintiff all along. The prayer of the defendant no.3/petitioner herein for rejection of the supplementary affidavit to the written statement as a whole cannot be accepted at all. For that reason, the order impugned cannot be set aside. But it must be supported for the reasons discussed above. 5. THE two points are thus answered. In that view of the matter, the present application is disposed of with the observations indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.