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2017 DIGILAW 113 (CAL)

Samir Kumar Adhikari v. Angsuman Chatterjee

2017-01-24

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : Ashis Kumar Chakraborty, J. This revisional application is directed against the Order No. 15 dated September 06, 2016 passed by the learned Civil Judge (Junior Division), 3rd Court at Howrah in Title Suit No. 14741 of 2014 (originally numbered as Title Suit No. 02 of 2014). By the impugned order, the learned Court below has allowed the application filed by the plaintiff opposite party no. 1 under Order I Rule 10 of the Code of Civil Procedure (in short "the Code") and added the opposite party no. 2 as the proforma defendant in the said suit. 2. The facts which are relevant for the decision in the revisional application are shortly stated as follows. 3. The opposite party no. 1 filed the said suit before the learned Court below, claiming a decree for eviction of the petitioner from the suit property. In the plaint it is the case of the plaintiff opposite party no. 1 that his uncle, Anindya Sundar Chatterjee, since deceased was the original tenant in respect of the suit property, under the proforma opposite party no. 2 and he used to reside at the suit property along with his said uncle. After the death of his uncle, the plaintiff opposite party became the tenant in respect of the suit property under the opposite party no. 2 and the latter accepted rent from the plaintiff opposite party. He, however, allowed the defendant petitioner to occupy one room of the suit property on temporary basis, without any consideration and subsequently the defendant petitioner has wrongfully and illegally taken possession of the entirety of the suit property. The defendant petitioner is contesting the said suit. In his written statement, the defendant petitioner alleged that he is the monthly tenant in respect of the suit property under the landlord Souveek Hazra, the opposite party no. 2 in this application and latter has received rent from him. The defendant petitioner further alleged that he has filed a suit being Title Suit No. 145 of 2013 against the landlord for declaration and permanent injunction, before the learned Court below and in the said suit he has obtained an order of temporary injunction in respect of the entirety of the suit property. The defendant petitioner further alleged that he has filed a suit being Title Suit No. 145 of 2013 against the landlord for declaration and permanent injunction, before the learned Court below and in the said suit he has obtained an order of temporary injunction in respect of the entirety of the suit property. In paragraph 3 of the written statement, the defendant petitioner claimed that the suit is bad for misjoinder and non-joinder of necessary parties and the plaintiff has no locus standi to institute the suit. In the said suit, the defendant petitioner also filed an application under Order 7, Rule 11 of the Code for rejection of the plaint filed in the said suit on the ground of non-joinder of necessary party which was rejected by the learned Court below. Thereafter, the plaintiff opposite party filed the application under Order I Rule 10 of the Code, praying for impleadment of the landlord/owner of the suit property as the proforma defendant in the said suit. As stated above, by the impugned order, the learned Court below allowed the said application of the plaintiff opposite party and impleaded the owner of the suit property, as the proforma defendant in the eviction suit. The learned Court below held that in the facts of the case the presence of the owner of the suit property is necessary for proper adjudication of the eviction suit. 4. Assailing the impugned order passed by the learned Court below, Mr. Aniruddha Chatterjee, learned counsel appearing for the defendant petitioner submitted that in the present case, the suit has filed and the eviction suit against the petitioner and the opposite party no. 2 was neither a necessary not a proper party and, therefore, the learned Court below fell in error of law in impleading the opposite party no. 2 as the proforma defendant in the said suit. In this connection, 5. Mr. Chatterjee relied on the Single Bench decision of this Court in the case of B.K. Dutta v. Nita Madan reported in AIR 1984 Cal 228 . 6. However, Mr. Shubhayu Roy, learned advocate appearing for the opposite party no. 1 strenuously contended that the impugned order passed by the learned Court below suffers from no infirmity in law and there is no merit in the present revisional application. 6. However, Mr. Shubhayu Roy, learned advocate appearing for the opposite party no. 1 strenuously contended that the impugned order passed by the learned Court below suffers from no infirmity in law and there is no merit in the present revisional application. According to him, when the petitioner himself in his written statement alleged that it is the opposite party no. 2 who is the landlord of the suit property, the suit is bad for misjoinder and/or non-joinder of the necessary party and the opposite party has no locus standi to institute the eviction suit. He also submitted that the petitioner, as the defendant in the said suit also filed an application for rejection of the plaint on the ground of non-joinder of the necessary party, that is, the opposite party no. 2 in this revisional application the landlord of the suit property. He urged that it is settled law that under Order I Rule 10(2) of the Code, a person though not a necessary party to the suit, may be impleaded in the suit if his presence would enable the Court to completely, effectively and adequately adjudicated upon the matters in dispute in a suit. In this regard, he relied on the decision of the Supreme Court in the case of Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. reported in (2010) 7 SCC 417 . According to Mr. Roy, in the present case when the defendant petitioner himself set up a defence in the said suit for eviction that he is a tenant in respect of the suit property under the opposite party no. 2 and raised objection to the maintainability of the suit in the absence of the opposite party no. 2 the decision cited by the petitioner in the case of B.K. Dutta (supra) has no application in the present case. 7. I have considered the materials on record and the arguments advanced by the learned counsel appearing for the defendant petitioner and the opposite party no. 1. In the present case, on the respective pleadings of the opposite party and the defendant petitioner it is quite obvious to me, the issue involved in the said suit is whether the defendant petitioner is a tenant in respect of the suit property under the plaintiff opposite party no. 1 or directly under the opposite party no. 2 owner. 1. In the present case, on the respective pleadings of the opposite party and the defendant petitioner it is quite obvious to me, the issue involved in the said suit is whether the defendant petitioner is a tenant in respect of the suit property under the plaintiff opposite party no. 1 or directly under the opposite party no. 2 owner. Therefore, in my opinion, there is substance in the contention urged on behalf of the opposite party no. 1 that the presence of the opposite party no. 2 may be necessary in order to enable the learned Court below to effectively, completely adjudicated upon and settled the question involved in the suit. 8. In the case of B.K. Dutta (supra) it was the husband of the defendant in the eviction suit who claimed an independent right of tenancy in respect of the suit when the defendant tenant herself did not raise any contention in her pleadings that she was not the tenant of the suit premises, but her husband was the tenant, in those facts in the said case it was held that the application of the husband of the defendant tenant under Order I Rule 10 for his impleadment of the eviction suit was not allowed. Thus, as submitted by the opposite party no. 1 the decision in the case of B.K. Dutta (supra) has no application in the present case. 9. For all the foregoing reasons, I do not find any infirmity in the impugned order passed by the learned Court below to be interfered by this Court. 10. Accordingly, the revisional application being C.O. 4332 of 2016 stands dismissed. 11. There shall, however, be no order as to costs. 12. Urgent certified copy of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.