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2011 DIGILAW 657 (CAL)

Soumitra Goswami v. Swapan Chowdhury

2011-05-11

DIPANKAR DATTA

body2011
JUDGMENT 1. The opposite party no.1 as plaintiff (hereafter the plaintiff) instituted a suit for eviction against the predecessor-in-interest of the petitioner and the opposite parties 2 and 3 on the ground of default, subletting and reasonable requirement. The said suit, registered as Ejectment Case No.385/2004, is pending on the file of the learned Civil Judge (Junior Division), Additional Court at Sealdah. 2. The original defendant Mihir Kanti Goswami (since deceased) entered appearance in the suit and on April 19, 2005, filed his written statement. After his death on January 5, 2007, the plaintiff applied for substitution and such prayer was allowed; the opposite parties 2 and 3 being the widow and elder son respectively and the petitioner, the younger son, were substituted as defendants in place and stead of the deceased defendant. It also appears that during his lifetime, the deceased defendant filed an application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 (hereafter the Act) and proceedings were concluded finally on May 14, 2010 determining the arrears of rent. The deceased defendant had deposed as witness in course of consideration of the application under Section 7(2) of the Act. After substitution was effected on his death, the opposite party no.3 herein being the brother of the petitioner had deposed as P.W.2. 3. It appears that on or about January 17, 2011, the petitioner filed two applications before the trial Court, - one seeking leave to contest the case and for direction on the plaintiff to serve copy of the plaint (hereafter the former application) and other documents and the other under Section 7(2) of the Act urging the trial Court to determine relationship of landlord and tenant and arrears of rent (hereafter the latter application). 4. In the former application, the petitioner claimed that he was not aware of the instant suit at any point of time. He has been struggling for existence all day, seldom getting any spare time. Only a week before filing of the application, he learnt about pendency of the suit. On engaging a learned advocate, he obtained information that the suit was pending but since no copy of plaint had been served on him, he is not in a position to take appropriate defence. Only a week before filing of the application, he learnt about pendency of the suit. On engaging a learned advocate, he obtained information that the suit was pending but since no copy of plaint had been served on him, he is not in a position to take appropriate defence. In the latter application, it was, inter alia, alleged that rent was being paid regularly in Court by the petitioner’s elder brother, a portion being shared by him, and that there was no default. 5. The plaintiff by filing a written objection opposed the applications. It was contended therein that the applications are vexatious, malafide and liable to be rejected. It was the specific case therein that after the petition for substitution was allowed on the death of the original defendant, the plaintiff took necessary steps for sending summons by registered post with A/D and through Court bailiff. The Court satisfied itself with the return of service, and had fixed a date for ex-parte hearing since none appeared on behalf of the substituted defendants. It was categorically asserted that the opposite parties 2 and 3 thereafter participated in the proceedings and the petitioner also duly attended Court several times when the evidence of the plaintiff was going on and, therefore, he was well aware of the pending suit but intentionally avoided to appear with the intention to harass the plaintiff. 6. By order dated January 24, 2011, the learned trial Judge upheld the contention of the plaintiff. On hearing the parties, the learned Judge was of the view that since the petitioner has been substituted as a defendant in place and stead of the deceased original defendant, he has stepped into the shoes of the original defendant and has to abide by the defence already taken by him and that there is no scope to file a new written statement. In so far as the latter application is concerned, it was observed that the original defendant, after entering appearance in the suit, had filed an application under Section 7(2) of the Act and that proceedings in connection therewith was finally concluded on May 14, 2010, determining the arrears of rent due and payable by the substituted defendants. The learned Judge also opined that the provisions of the Act do not leave any scope for multiple Section 7(2) proceedings in the same suit. The learned Judge also opined that the provisions of the Act do not leave any scope for multiple Section 7(2) proceedings in the same suit. Besides the above, the learned Judge was of the clear view for the reasons assigned in the order under challenge that the applications filed by the petitioner were mischievous and vexatious, filed with an intent to delay a decision on the suit. Consequently, the same stood rejected. 7. The petitioner has questioned the order dated January 24, 2011 in this application under Article 227 of the Constitution. 8. Mr. Halder, learned advocate appearing for the petitioner, contended that having regard to the provisions contained in Order XXII Rule 4(2) of the Civil Procedure Code, he is entitled to take defence appropriate to his character as legal representative of the deceased defendant and, therefore, the trial Court erred in the exercise of his jurisdiction in depriving him of the opportunity to contest the suit by filing a new written statement. 9. In support of his contention, Mr. Halder relied on the decision of the Supreme Court reported in AIR 1986 SC 1952 (Bal Kishan vs. Om Parkash & anr.). Heavy reliance was placed on paragraph 3 of the said decision wherein it has been held that Order XXII Rule 4(2) of the Code authorises the legal representative of a deceased defendant to file an additional written statement raising all pleas which the deceased tenant/defendant had or could have raised except those which were personal to the deceased defendant. He, accordingly, prayed for setting aside of the order under challenge and for grant of opportunity to contest the suit by filing a new written statement. 10. I place on record that no submission was advanced by Mr. Halder in relation to that part of the impugned order by which the learned Judge rejected the latter application filed by the petitioner. 11. Mr. Ghosh, learned advocate appearing for the plaintiff, contended that the application filed by the petitioner is nothing but part of a dilatory strategy to gain time. Halder in relation to that part of the impugned order by which the learned Judge rejected the latter application filed by the petitioner. 11. Mr. Ghosh, learned advocate appearing for the plaintiff, contended that the application filed by the petitioner is nothing but part of a dilatory strategy to gain time. He contended that reasons recorded in the order under challenge are sufficient to hold that the petitioner had been residing with the opposite parties 2 and 3 and the opposite party no.3 having deposed in the suit as D.W.1 on November 26, 2010 and produced the voter identity card and ration card of the petitioner for being marked exhibits, it was the petitioner’s liability to explain how those documents were lying in the possession of his mother and brother if he had no connection with them. That liability was not discharged by the petitioner and, therefore, the finding recorded by the learned trial Judge that his plea is absolutely unbelievable, apart from being a finding of fact which would not call for interference under Article 227 of the Constitution, ought not to be interfered at all and the inference drawn that the petitioner was well aware of his substitution and other particulars of the case ought to be believed and the order under challenge upheld. 12. In support of his contention, Mr. Ghosh relied on the decision of a learned single Judge of this Court reported in AIR 1972 Calcutta 494 (Babulal N. Shukla vs. Jeshankar N. Shukla) for the proposition that fresh writ of summons is not required to be served on the substituted defendants. Another decision of a learned single Judge reported in 2008 (2) CLJ (Cal) 825 (Arijit Mitra vs. Mr. Goutam Mitter) was relied on in support of the contention that a substituted defendant has no right to file written statement. He, accordingly, contended that the learned Judge did not act illegally in the exercise of his jurisdiction so as to warrant interference and prayed for dismissal of the application. 13. I have heard learned advocates for the parties and perused the documents annexed to the application as well as those produced in Court in course of hearing. 14. Question that arises in the circumstances is whether the learned Judge was justified in rejecting the former application filed by the petitioner. 15. 13. I have heard learned advocates for the parties and perused the documents annexed to the application as well as those produced in Court in course of hearing. 14. Question that arises in the circumstances is whether the learned Judge was justified in rejecting the former application filed by the petitioner. 15. The view expressed by the learned Judge that the petitioner on being substituted as defendant stepped into the shoes of the deceased original defendant and, therefore, cannot claim right to file a new written statement no doubt finds support from the decision in Arijit Mitra (supra) cited by Mr. Halder. In that decision, the learned Judge in paragraphs 8 and 9 held as follows : 16. Although in Arijit Mitra (supra) the learned Judge referred to Order XXII Rule 4 of the Code in general, one does not find consideration of sub-rule (2), Rule 4 of Order XXII therein, which ordains that “any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant”. 17. Sub-rule (2) of Rule 4 of Order XXII has been considered by the Supreme Court in Bal Kishan (supra) cited by Mr. Halder, where the Supreme Court followed its earlier decision reported in AIR 1972 SC 2526 (J. C. Chatterjee & ors. vs. Shri Sri Kishan Tandon & anr.). The said two decisions have been noticed in a subsequent decision reported in AIR 1995 SC 1653 (Vidyawati vs. Manmohan & ors.). It would be appropriate to quote below paragraph 11 from the decision in J. C. Chatterjee (supra). It reads thus : “11. Under sub-clause (ii) of R. 4 of Order 22, Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representative could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.” 18. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.” 18. In view of the aforesaid pronouncement of the Supreme Court interpreting sub-rule (2) of Rule 4 of Order XXII of the Code which went unnoticed in Arijit Mitra (supra), I feel disinclined to follow the decision in Arijit Mitra (supra) and to uphold the order of the learned Judge rejecting the prayer of the petitioner to file written statement. 19. The decision in J.C. Chatterjee (supra) also relates to a suit for eviction of tenant, where the tenant breathed his last during pendency of a second appeal, preferred against reversal of the decree passed by the trial Court. In such decision, the Court clearly laid down, of course in the context of the facts and law before it, the extent of right of the heirs and legal representatives of a deceased tenant to take a defence appropriate to his character as legal representative of the deceased tenant and that he would be free to urge all contentions that the deceased tenant could have urged, except those which were personal to the deceased. 20. The materials required for a decision as to whether there is indeed any reason for the petitioner to file additional written statement are not available on record. The point must exercise the consideration of the learned Judge afresh in the light of the decision in J.C. Chatterjee (supra) vis-à-vis the materials on record before him. 21. Although it is true that a written statement that is wholly inconsistent with the defence taken by the deceased original defendant cannot be allowed to be taken, the learned Judge may, upon consideration of the materials on record, in his discretion, allow the petitioner to supplement the defence already taken by allowing the petitioner to urge a point which could have been raised by the deceased original defendant but was not taken, if and only if it was not personal to the deceased. 22. In the result, that part of the order rejecting the petitioner’s former application stands set aside. 22. In the result, that part of the order rejecting the petitioner’s former application stands set aside. The learned Judge upon hearing the parties as early as possible shall give a fresh decision. Subject to his convenience, it is desirable that decision on the former application is rendered within a month from date of receipt of a copy of this order. 23. The the revisional application is allowed, without costs. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.