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2014 DIGILAW 627 (CAL)

Tilak Bose v. Bimal @ Bimalendu Kumar Ghosh

2014-07-14

SUBRATA TALUKDAR

body2014
JUDGMENT Subrata Talukdar, J.: The challenge thrown by the petitioner is to Order no.33 dated 28th August, 2008 passed by the Ld. Additional District and Sessions Court, Fast Track VI, Alipore in Title Appeal no.10 of 2006. The appellant in the said Appeal no.10 of 2006 was the defendant no.3 in Title Suit (for short T.S.) no.26 of 2004. The suit, as filed for eviction of tenant by the plaintiff under the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act) was on the ground of reasonable requirement. The plaintiffs, who were respondents in the said Appeal no.10 of 2006, claimed ownership over the suit property by purchase from one Sadananda Sen. It is not in dispute that one Haripada Ghosh was a contractual tenant under Sadananda Sen and, on the death of Haripada, the sons and wife of Haripada since became the tenants. Suit was filed by service of the notice under the 1956 Act and, in the said suit the sons and legal heirs were impleaded as party defendants. One of the legal heirs namely, Sri Bimalendu Ghosh, who is also the appellant in the said Title Appeal no.10 of 2006, in his capacity as a defendant in T.S. no.26 of 2004 claimed to be the sole defendant after the death of the original defendant, his father, Haripada. The said Bimalendu also pleaded that on the death of Haripada the tenancy devolved in the name of Satyendra, elder brother of Bimalendu and on the death of Satyendra upon implied surrender by the heirs of Satyendra the sole tenancy rested in favour of the said Bimalendu. The suit being decreed the said Bimalendu filed the said Title Appeal no.10 of 2006 as appellant. In the said Title Appeal the appellant filed applications for amendment of his written statement to the effect that on the death of Haripada on the 5th of January, 1956 the tenancy devolved upon his widow and five sons. Thereafter on the death of his widow, Nalini Bala on the 28th of January, 1956 the tenancy was inherited in common by all surviving sons, daughters and grandchildren. In his said amendment application Bimalendu therefore pleaded that all the aforesaid surviving legal heirs were necessary parties to the eviction suit and thereafter in this appeal. The ld. Thereafter on the death of his widow, Nalini Bala on the 28th of January, 1956 the tenancy was inherited in common by all surviving sons, daughters and grandchildren. In his said amendment application Bimalendu therefore pleaded that all the aforesaid surviving legal heirs were necessary parties to the eviction suit and thereafter in this appeal. The ld. Fast Track Appellate Court posted both the amendment applications and the appeal for analogous hearing recognizing that the said Bimalendu for the first time during pendency of the appeal had taken the point that tenancy of the late Haripada Ghosh devolved in common upon all legal heirs and therefore the suit was liable to be challenged as non-maintainable on the ground of non-joinder of necessary parties. The second issue addressed by the ld. Fast Track Appellate Court was the provision for amendment under Order 6 Rule 17 of the Code of Civil Procedure (for short CPC). Ld. Advocate for the respondent plaintiff argued before the 1st Appellate Court that the amendment will result in withdrawal of the admission made by the said Bimalendu before the ld. Trial Court. The ld. 1st Appellate Court was however unable to persuade itself on the contentions advanced on behalf of the plaintiff-respondent that there was any admission on the part of the said Bimalendu with regard to the mode and manner of devolution of tenancy on himself alone. The Ld. 1st Appellate Court took notice of the fact that the said Bimalendu as DW1 had given evidence that he became absolute tenant on the death of his father, Haripada and, during cross-examination stated that tenancy was inherited in the year 1956 and never surrendered. However, the specific case made out in the plaint was that only the male heirs of Haripada inherited the tenancy excluding the other family heirs. Further recognizing the fact that any admission made by the said Bimalendu before the Ld. Trial Court could not overwrite the specific provisions of the statute and cannot operate as estoppel, the Ld. 1st Appellate Court also recognized the advent of the Hindu Succession Act with effect from June, 1956 and its effect on the death of the original tenant Haripada on the 1st of January, 1956, thereby implying that tenancy being a property must devolve upon all legal heirs. The Ld. 1st Appellate Court also recognized the advent of the Hindu Succession Act with effect from June, 1956 and its effect on the death of the original tenant Haripada on the 1st of January, 1956, thereby implying that tenancy being a property must devolve upon all legal heirs. The Ld. 1st Appellate Court therefore allowed the amendment application filed by the said Bimalendu on the 12th of May, 2006 and 4th of September, 2006 with further directions for proceeding with this appeal. This Court notices that T.S. no. 26 of 2004 was decreed on the 29th of November, 2005 by the Ld. 4th Civil Court (Junior Division) at Alipore. This Court also notices that the Ld. Trial Court with regard to the position of fact in respect of the family members of the plaintiff as well as the reasonable requirement claimed by the plaintiff had recorded the stand of the said Bimalendu as follows :- “I reiterate that the said tenancy was being represented by the opposite party no.1 / defendant no.3 at all material times. The said tenancy has been duly terminated according to law. There were two landlords (B.C.Ghosh and Sadananda Sen) prior to the present petitioners who became the landlords only on 29/05/1991. 6. With reference to the statements made in paragraph 3(c) of the said Affidavit, I deny the statement made by the deponent and say that the statements are not relevant in the facts of the present case, since the opposite party no.1 has claimed himself to be the sole tenant all along since long before the institution of the suit.” This Court further notices that inspite of service of summons to all the defendants, only the said Bimalendu, impleaded as defendant no.3 came forward to contest the suit. As observed earlier in this judgment the specific case of Bimalendu before the Ld. Trial Court is that he is the only tenant in respect of the suit property and there is no privity of contract between the landlord and the other defendants. The ld. Trial Court upon consideration of documents and witnesses finally concluded that the plaintiffs reasonably require the following rooms and decreed the suit on contest with costs against the said Bimalendu and ex-parte against the rest of the defendants without costs. Sri Prithwi Ranjan Guha, ld. The ld. Trial Court upon consideration of documents and witnesses finally concluded that the plaintiffs reasonably require the following rooms and decreed the suit on contest with costs against the said Bimalendu and ex-parte against the rest of the defendants without costs. Sri Prithwi Ranjan Guha, ld. Counsel for the petitioner has strenuously argued that once the suit has been decreed in November 2005, the Ld. 1st Trial Court was clearly wrong in allowing the amendment by which the said Bimalendu, as the appellant was allowed to resile from his specific oral and documentary stand before the Ld. Trial Court. Sri Guha has argued with force that the suit is of 2004 and the nature of amendment sought for by said Bimalendu in 2006 is clearly an afterthought based on keen legal advice. In 2008, with the amendment in place pursuant to the Order of the ld. 1st Appellate Court, the fabric of the case for and against eviction presented before the Ld. Trial Court by both the parties stood destroyed. Sri Guha points out that allowing the filing of the amended written statement by the ld. 1st Appellate Court has caused grave miscarriage of justice to the plaintiffs. He submits that throughout the carriage of the suit in 2004 and 2005 the said Bimalendu Ghosh had adequate opportunity to raise the point which he now seeks to raise in the amendment application. However now, the suit being decreed the said Bimalendu Ghosh is alone contesting the appeal on the basis of the amendment already discussed above. Per contra Sri Shyamal Kumar Mukherjee, ld. Counsel appearing for the said Bimalendu Ghosh, arrayed as opposite party in this CO 3329 of 2008 has argued that there is no assignment of interest in favour of the said Bimalendu Ghosh. Sri Mukherjee takes the point that with the promulgation of the Hindu Succession Act, as stated above, the legal heirs of the late Haripada had a right under the statute to be impleaded as parties. Such right cannot be curtailed on the basis of a purported admission made before the ld. Trial Court. He relies upon the following decisions in support of his contention:- a) 1984 CWN (1) 447 – K.D.Pramanick Vs. R.P.Sahoo; b) 1996 CHN (2) 24 – SK. Abdul Khalil Vs. Sk. Abdul Jallil & Ors.; c) 1995 SCC (1) 164 – Kumar Jagdish Chandra Sinha Vs. Trial Court. He relies upon the following decisions in support of his contention:- a) 1984 CWN (1) 447 – K.D.Pramanick Vs. R.P.Sahoo; b) 1996 CHN (2) 24 – SK. Abdul Khalil Vs. Sk. Abdul Jallil & Ors.; c) 1995 SCC (1) 164 – Kumar Jagdish Chandra Sinha Vs. Eileen K. Patricia D’rozarie (Mrs); d) 2009 SCC (10) 626 – Surender Kumar Sharma Vs. Makhan Singh; e) 2008 SCC (8) 511 – North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by L.R.S. f) 2006 CHN (1) 513 – Jaharlal Saha & Ors. Vs. Pradip Saha & Ors.; g) 1974 AIR ORISSA 36 – Gobinda Sahoo Vs. Ram Chandra Nanda and Anr.; h) 2007 AIR SC 1633 – Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors.; Relying on all the aforesaid decisions Sri Mukherjee tries to make the basic point that the purpose of allowing an amendment is to determine the real questions between the parties. He also makes the point that any admission made before a Court by a Ld. Counsel of the party which is made by inadvertence or in error of law can be withdrawn or explained away. Such admission cannot have a bearing on the real issues that need adjudication before the Court. Heard the parties and considered the materials on record. This Court is of the considered view that the said Bimalendu had ample opportunity to make the case, which he has been allowed to do in his amendment application by the ld. 1st Appellate Court, during the entire process of the trial. This Court finds enough material, which has been considered by the Ld. Trial Court in support of the contention that the said Bimalendu consciously contested the suit alone and at no point of time other legal heirs came forward to place their claim before the Ld. Trial Court. Thereafter upon the suit being decreed in November 2005 the said Bimalendu after a reasonable delay filed the amendment applications on the 12th of May, 2006 and 15th of December, 2006. Even in respect of the said amendment applications, to the eye of this Court none of the legal heirs have come forward to espouse the cause of the said Bimalendu. Even in respect of the said amendment applications, to the eye of this Court none of the legal heirs have come forward to espouse the cause of the said Bimalendu. In such view of the matter this Court is of the considered opinion that in the event the amendments are allowed to stand – and such amendments are clearly a product of afterthought – the fabric of the case studiously built up by both the parties before the Ld. Trial Court shall be ruptured and, the decree based thereon should not be converted into a puppet dancing to the strings of keen legal advice. The real convenience and interest of the parties cannot be made subservient to the play of legalese. Furthermore, this Court is not sufficiently impressed by the case canvassed in the amendment applications that with the promulgation of the Hindu Succession Act, 1956 the impleadment of the legal heirs is a statutory prescription. Law is for the vigilant and, if the other legal heirs felt that their rights were curtailed, they had ample opportunity to contest the said suit. In the backdrop of the above discussion CO 3329 of 2008 is allowed. Order impugned no.33 dated 28th of August, 2008 passed by the Ld. Additional District and Sessions Fast Track Court VI, Alipore is set aside. Consequently, the judgment and decree dated 29th November, 2005 passed by the 4th Civil Court (Junior Division) in T.S. no.26 of 2004 stands revived. The Opposite Party no.1 shall act in terms of the said decree within a period of 30 days from the date of this Order failing which the present petitioner-plaintiff shall be at liberty to put the decree into execution.