Calcutta High Court (Appellete Side)
Represented By Ila Ghosh & Anr vs Sri N. P. K. Bose on 15 March, 2021
Author: Shivakant Prasad
Bench: Shivakant Prasad
15.03.2021
Sl. No.2
Court No.9
BM.
SA/260/1992
Sri Niranjan Ghosh, since deceased
represented by Ila Ghosh & Anr.
Vs.
Sri N. P. K. Bose
With
IA No.CAN/1/2020 (Old IA: CAN/2015/2020
(Via Video Conference)
Mr. Probal Kumar Mukherjee, Sr. Advocate
Mr. Chayan Gupta
Mr. Shebatee Datta
Mr. Dwip Raj Basu ... for the appellants
Mr. Rupak Ghosh
Mr. Ritesh Kumar Ganguly ... for the respondents
Re : IA No.: CAN/1/2020 (Old IA: CAN/2015/2020)
1. The instant application has been filed by the applicant no.1, Chairman of Avenue Cooperative Housing Society Limited, who are seeking leave of this Hon'ble Court to continue with the present appeal in place and stead of plaintiff/appellant and accordingly to incorporate their names in the memorandum of appeal by deleting the names of the appellants.
2. The grounds taken in this application is that Niranjan Ghosh, since deceased, had purchased flat no.2C in the suit premises at 107, Southern Aveue, P.S. Rabindra Sarobar, Kolkata-700 029 on 18.2.1974 2 and had been residing in the said flat who had let out the flat on rent to one N. P.K. Bose, since deceased, the father of the respondent nos.2 and 3 in 1975. The said Niranjan Ghosh, original owner of the suit flat had died leaving behind the present appellants, namely, Ila Ghosh and Kaushik Ghosh being his widow and son who preferred the instant appeal on being aggrieved by and dissatisfied with the judgement and decree dated 6th March, 1990 passed by the Learned Additional District Judge, 3rd Court at Alipore in Title Appeal No.250 of 1988 reversing the judgement dated 26th March, 1988 and 15th April, 1988 respectively passed by the Assistant District Judge, 3 rd Court in Title Suit No.169 of 1976 as the original owner Niranjan Ghosh, since deceased, had filed the suit for eviction and the ejectment decree was passed against the defendant, the present respondent herein.
The specific case of the applicants is that by a registered Deed of Gift dated 31st May, 2019, the palintiff/appellant had gifted the said flat in favour of the said Society being the applicants herein. Pursuant thereto the Society has mutated its name in the record of Kolkata Municipal Corporation as the owner in respect of the said flat. The Society has also obtained a electricity meter from the CESC in the name of the said Society. It is pointed out that the Society has stepped into the shoes of the present 3 plaintiffs/appellants and the plaintiffs/appellants have ceased to have any right and title in respect of the said flat and to continue the present litigation in respect of the said flat as the rights of the plaintiffs in the appeal has devolved upon the society.
3. The application has been contested by use of affidavit in opposition on behalf of the respondent who have specifically pointed out that though the Avenue Co-operative Housing Society Limited is claiming to have become the owner of the suit flat by virtue of a Deed of Gift have mutated its name in the record of Kolkata Municipal Corporation, no intimation in this regard has ever been given to the respondents and that the statements made by the applicants are the matters of record but denied that the proposed added appellants/applicants herein at all has right to pursue the present proceeding as against the respondents and as such the applicants can not be allowed to continue with the instant appeal in place and stead of the original appellants. The applicants in reply have stated that they were not aware of the proceeding in the instant appeal and only after getting the suit property, the applicants engaged their Advocate to cause searches of the case pending before this Hon'ble Court and came to know about the proceeding.
4
4. In support of the applicant's contention to continue with the appeal in place and stead of the original appellants, a reference to a decision in the case of Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr. reported in (2005) 11 SCC 403 has been made to contend that a transferee can be joined as proper party if his interest in the subject matter of suit is substantial and not just peripheral though plaintiff has no obligation to join such transferee. However, joinder of party cannot depend solely on whether he has an interest in the suit property. The question is whether the right of a person may be affected if he is not joined though such transferee can be joined both under Order 22 Rule 10 or Order 1 Rule 10 of the Civil Procedure Code given that such transferee is bound by the final decree under Section 52 of the Transfer of Property Act, 1882 and such application should ordinarily be allowed. It is submitted on behalf of the applicants that in the cited case, the appellants had bought the entire interest in the suit property pendente lite and had no knowledge of the second appeal.
5. In reply learned counsel for the respondents inviting my attention to the provision of Section 52 of the Transfer of Property Act, 1882, which reads as thus :-
5
"52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or establish beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]"
6. By referring to the provision, it is submitted that it is imperative on the part of the Court to see that whether the proceeding is collusive in which the right to immovable property is indirectly or specifically in question and the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to effect right of any other party under any decree or order.
7. It must be borne in mind that the instant appeal arises out of appellate judgement and decree in a suit for eviction which was decreed by the trial court by a decree of eviction against the respondent from the suit flat which originally belong to the appellants and during the pendency of the appeal, the original 6 appellants/plaintiffs have executed a Deed of Gift in favour of the Avenue Co-operative Society and accordingly, the applicants herein have sought for permission to allow them to continue with the appeal in place and stead of the original appellants by stepping into the suit as the owner of the suit flat.
8. It is urged that the original appellants have not been put on notice and in a situation like this, it would not be expedient on the part of the Court to allow the applicants to be substituted in place and stead of the original appellants to continue with the proceeding in this appeal. Learned counsel for the respondent relies on the decision of Pannala Renuka w/o Parvathal Reddy & Anr. v. Kavali(Rajumouni) Venkataiah & Ors. reported in AIR 2007 Andhra Pradesh 46, para 10 to contend that alienee pendente lite is a person to purchase suit property during pendency of the suit in gross violation of principle of Section 52 of the Transfer of Property Act, who has no enforceable legal right and a person who violates the law and acquired the right, can never be treated as a holder of legally enforceable right. The purchaser lispendens is bound by the decree passed against his vendor and he cannot as of right be impleaded in the suit. Admittedly, the respondent is the tenant in respect of the suit flat. So obviously, the respondent cannot challenge the title of the landlord but at the same time when the applicants became 7 donee in respect of the suit flat, it was imperative for them to have put the respondent/defendant being occupier of the suit flat on notice of the said fact but the question is of the continuation of the appeal by the Avenue Co-operative Society.
9. This Court is of the view that the appellants originally have also not been put on notice as they are to continue with proceeding in the appeal. However, in respectful consideration of the decision in Anant Kumar Shaw (Supra) and having regard to the object of Order 1 Rule 10 of CPC to discourage contents on technical pleas, and to save honest and bonafide claimants from being non-suited, the power to strike out or add parties can be exercised by the court at any stage of the proceeding; the applicants may be impleaded as proper parties to the appeal in the club of the appellants.
10. Accordingly, the application being IA No.:
CAN/1/2020 (Old IA: CAN/2015/2020) is disposed of with direction upon the Department to incorporate the names of the applicants in the array of appellants.
However, there shall be no order as to costs.
(Shivakant Prasad, J.)