Calcutta High Court (Appellete Side)
Shri Kunal Agarwal & Anr vs M/S. Jagat Narayan & Co on 27 January, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI C.O. No.3551 of 2007 Shri Kunal Agarwal & Anr.
... Plaintiff/Petitioners
-Versus-
M/s. Jagat Narayan & Co.
... Defendant/Opposite Party Mr. Pinaki Ranjan Mitra, ... For the petitioners Mr. Mahendra Prasad Gupta, Mr. Animesh Pal ... For the opposite party Heard on : 15.09.2016, 08.11.2016.
Judgment on : January 27, 2017.
Sahidullah Munshi, J.:-
This revisional application is directed against order dated 23rd July, 2007, passed by the learned Civil Judge (Senior Division), 2nd Court, Howrah, in Miscellaneous Appeal No.48 of 2006, affirming Order No.184 dated 18th November, 2005, passed by the learned Civil Judge (Junior Division), 4th Court, Howrah, in Title Suit No.193 of 1988. The petitioners, Shri Kunal Agarwal and Shri Ketan Agarwal, filed an application before the learned Trial Court for substitution of their names under Order XXII Rule 10 of the Code of Civil Procedure, in place of Late Jaykrishna Agarwal, the original plaintiff. In the application for substitution, the petitioners mentioned that the suit was filed by Jaykrishna Agarwal in 1988 and he died on 18th March, 2005. The petitioners obtained lease by a Registered Deed dated 2nd August, 2003 in respect of the suit property and other property from the original owner/lessor, Baptist Missionary Society Corporation, for a period of 99 years. It has been contended by the petitioners that by virtue of the aforesaid Lease Deed, right to sue survived and the interest in the suit property has devolved upon the petitioners. The petitioners in this revisional application have stated that Jaykrishna Agarwal took tenancy in respect of the lands and structure comprised in Holding No.59/1, King's Road, P.S. - Golabari, District - Howrah, from the original owner, namely, Baptist Missionary Church by virtue of a bilateral Deed of Tenancy agreement and which was duly executed and registered on 10th February, 1983 and was in possession of the said property by letting out the same and realising rent from the premises tenant, that is, the defendant, who held a tenancy in respect of premises comprised in Holding No.59/9, King's Road, at a monthly rental of Rs.105/- payable according to English calendar month. The said Jaykrishna Agarwal instituted a suit for eviction against the defendant/opposite party, being the present suit, that is, Title Suit No.193 of 1988, since the defendant/opposite party failed and neglected to pay rent. The ground in the suit for eviction was also that the said defendant/opposite party was guilty for act of committing waste, negligence contrary to the provisions of
(m), (o) and (p) of Section 106 of the Transfer of Property Act.
The said application filed by the petitioners under Order XXII, Rule 10 of the Code of Civil Procedure was opposed by the opposite party. In the said objection it was, inter alia, contended by the opposite parties that the application for substitution is misconceived and is not maintainable. It was contended that Jaykrishna Agarwal, since deceased, filed the suit for eviction and recovery of possession of defendant/opposite party and the suit was contested by the defendant by filing petition under Section 17(2) of the West Bengal Premises Tenancy Act, whereby the defendant challenged the relationship of landlord and tenant between the plaintiff and defendant. The defendant contended that he is a thika tenant in respect of the suit property. It was contended by the defendant that trial of the suit commenced in or about the year 2005 and it was never disclosed by the original plaintiff about the lease of the suit property in favour of the petitioners by the original owner and, according to him, the suit abated for want of substitution through the plaintiff's representatives. The defendant contended that Lease Deed was executed on 2nd August, 2003 which is completely a new and different cause of action and has got no connection with the cause of action of the suit, nor the petitioners could have been said to have stepped into the shoes of the original plaintiff and as such, the application made by the petitioners, is liable to be dismissed.
On perusal of the rival contentions of the parties the learned Trial Court arrived at a finding that there was nothing on record to suggest that a leasehold interest was created or devolved upon the applicants/petitioners "during the pendency of the instant suit." In support of such finding the learned Trial Court mentioned that it transpired from the materials on record that the suit property has been leased by Baptist Missionary Society Corporation in favour of the plaintiff on 19th February, 1983 and, therefore, the petitioner's contention that interest of the suit property devolved on them during the pendency of the suit, is not tenable. That apart, according to the learned Trial Court, sole plaintiff expired on 18th March, 2005, no substitution has been filed for substitution of the legal heirs of the plaintiff in his place and since a period much more than 90 days had elapsed after death of the plaintiff and the presentation of the application under Order XXII, Rule 10 of the Civil Procedure Code, the learned Court was of the view that there is no cause of action after the death of the sole plaintiff in the instant case and, therefore, the application under Order XXII, Rule 10 of the Code of Civil Procedure, was rejected.
Assailing the said order dated 18th November, 2005, passed in Title Suit No.193 of 1988, the present petitioners filed a miscellaneous appeal being Misc. Appeal No.48 of 2006 in the Court of the Learned Civil Judge (Senior Division), 2nd Court, Howrah. The learned Court of appeal below, while affirming the order passed by the Trial Court, has held that the appellants cannot be considered as the assignees because the plaintiff in the case in his individual capacity had inducted the tenant and not as per the instruction of the owners. It has been further held that there is no direct transfer from the plaintiff to the appellant/petitioner by which one can consider that the petitioners have been assigned to be the landlord of the suit property in respect of that defendant/tenant. The learned Appellate Court below has held that there is no error committed by the learned Trial Court and, therefore, no interference was called for against the said order of the learned Trial Court. Question arises in this revisional application as to -
1) Whether both the Trial Court and the Appellate Court below have committed gross error of law in arriving at a conclusion that the interest in the suit property has not flown from the original plaintiff to the petitioners in respect of the rejection of the application under Order XXII, Rule 10 of the Code of Civil Procedure;
2) Whether both the Courts below are in error in holding that the devolution has not taken place during the pendency of the suit although, admittedly, Lease Deed was executed in favour of the petitioners in August, 2003 and the suit was filed in the year 1988;
3) Whether the Courts below have committed any error in holding that the suit had abated in view of the fact that the original plaintiff died on 18th March, 2005 and the application was not made within the prescribed period of limitation (90 days) although, it is apparent from the record that the substitution application was filed on 20th May, 2005;
4) Whether the devolution of interest should relate to the suit property or the plaintiff and whether the application under Order XXII, Rule 10 of the Civil Procedure Code can be barred on the question of limitation unlike the substitution application under Order XXII, Rules 3 and 4 of the Code of Civil Procedure.
Mr. Mitra, in support of his clients' application for substitution under Order XXII, Rule 10 of the Code of Civil Procedure, has relied on the following judgments in the case of -
• Parimal Mitra - Vs. - Uday Kumar Saw & Ors., reported in 85 CWN 447.
• Dhurandhar Prasad Singh - Vs. - Jai Prakash University & Ors., reported in AIR 2001 SC 2552.
• Chiranjilal Shrilal Goenka (deceased) through LRS. - Vs. - Jasjit Singh & Ors., reported in (1993) 2 SCC 507.
Mr. M.P. Gupta, learned Counsel appearing for the opposite parties, has submitted that the Courts below have committed no error of law in rejecting the petitioners' application under Order XXII, Rule 10 of the Code of Civil Procedure. He submitted that admittedly, property was transferred long before the death of the petitioner and substitution has nothing to do with the death of the petitioner because it is an application under Order XXII, Rule 10 of the Code of Civil Procedure which is made inasmuch as the interest of the suit property has devolved upon the assignee, who made the application for substitution. According to Mr. Gupta, if the property was transferred by a Lease Deed on 2003 whereas, the plaintiff died on 18th March, 2005, there is no reason for the applicants not to file an application immediately after the transfer was made. He further submitted that the substitution application has been made on 20th May, 2005 whereas, the plaintiff died on 18th March, 2005 and, therefore, the learned Courts below have rightly rejected the application holding that the same was filed after abatement and no prayer for setting aside of abatement was made in the application. In support of his submission Mr. Gupta has relied on several judgments in the case of -
• Rikhu Dev, Chela Bawa Harjug Dass - Vs. - Som Dass (deceased) through his Chela Shiama Dass, reported in AIR 1975 SC 2159.
• Jaladi Suguna (Dead) through L. Rs. - Vs. - Satya Sai Central Trust & Ors., reported in AIR 2008 SC 2866.
• Kedarnath Kanoria & Ors. - Vs. - Khaitan Sons & Co., reported in AIR 1959 Cal 368.
• Bhag Mal Alias Ram Bux & Ors. - Vs. - Munshi (Dead) by LRS. & Ors., reported in (2007) 11 SCC 285.
• Chiranjilal Shrilal Goenka (deceased) through LRS. - Vs. - Jasjit Singh & Ors., reported in (1993) 2 SCC 507.
• Morvi Municipality - Vs. - State of Gujarat & Ors., reported in (1993) 2 SCC 520.
• Gordhandas Jerambhai - Vs. - U. D. Banerjee & Ors., reported in 77 CWN 70.
• Messrs Birati Weaving Factory & Ors. - Vs. - Employees State Insurance Corporation, reported in 77 CWN 79. • Ameena Bi - Vs. - Kuppuswami Naidu & Ors., reported in (1993) 2 SCC 405.
• Biswanath Chattoraj & Ors. - Vs. - State Bank of India & Ors., reported in 2011 (1) CLJ (Cal) 1.
• Mandhari - Vs. - State of Chattisgarh, reported in AIR 2002 SC 1961.
• Chandi Charan Paul - Vs. - Rabindra Nath Adhikary & Anr., reported in 2001 (1) CLJ 600.
• Boorugu Mahadev & Sons & Anr. - Vs. - Sirigiri Narasing Rao & Ors., reported in (2016) 3 SCC 343.
The judgment in the case of Parimal Mitra (supra) has no application in the present case where this Court held that the tenant/defendant was not entitled to protection under Section 13 of the West Bengal Premises Tenancy Act, 1956. The suit had been instituted on a valid cause of action. By the transfer in his favour, plaintiff no.8 stepped into the shoes of the previous landlords, plaintiff nos.1 to 7. Plaintiff no.8 would be entitled to take advantage of the defaults made previously to the transfer in his favour. Such defaults would enure to her benefit. Fact of the said case does not match with the fact of the present case. Ratio decided in the said case has no manner of application in the present one.
The judgment in the case of Dhurandhar Prasad Singh (supra) dealt with a question involving devolution of interest, question of substitution and applicability of the provisions of Order XXII of the Code of Civil Procedure. Court has held that under Rule 10 of Order XXII applies when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation. Court held in cases covered by Rules 3 and 4 of Order XXII, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that proceeding would continue by or against the original party although, he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on record.
The judgment in the case of Chiranjilal (supra) dealt with a case of substitution under Order XXII, Rule 3 of the Code of Civil Procedure which in no way applicable in the present case.
I have heard the parties at length, considered the materials on record and the orders impugned in this revisional application. On perusal of a copy of the plaint produced before the Court it appears that the plaintiff filed an ejectment suit against the defendant on the plea that he was the landlord in respect of the suit property and he acquired interest in the property through the owner Baptist Missionary Church by a bilateral Deed of Tenancy agreement duly executed and registered on 10th November, 1983 and since execution of such Deed the plaintiff was in possession of the suit property by letting out the same and realising rent from the premises tenant. The defendant filed a written statement wherein he has, inter alia, claimed that he is a thika tenant in respect of the suit property and, therefore, he is not liable to be ejected at the instance of the plaintiff. In such suit, after the death of the plaintiff on 18th March, 2005, an application was filed under Order XXII, Rule 10 of the Code of Civil Procedure by the petitioner herein. The application was filed by persons who have obtained lease for a period of 99 years by virtue of a registered deed dated 2nd August, 2003 from the above-named Baptist Missionary Church, the owner of the property. When the said lease was executed in favour of the present petitioners, Jaykrishna Agarwal was alive but having regard to the creation of lease in favour of the petitioners, they ought to have made an application for substitution of their names in place of Jaykrishnadas Agarwal. That was not done by the petitioners. They remained silent. Jaykrishnadas Agarwal died leaving behind no issue. On his death no application was made for substitution by any legal heirs but the petitioners filed the application under Order XXII, Rule 10 of the Code of Civil Procedure by virtue of transfer of the property in their favour under the Lease Deed dated 2nd August, 2003. Trial Court held that the suit stood abated since no application under Order XXII, Rule 3 or 4 of the Code of Civil Procedure was filed before the Court below after the death of the plaintiff within the statutory period. Therefore, the suit abated. The leaned Court below, while passing the impugned order on 18th November, 2005, held that suit abated. Trial Court also held that no devolution of interest took place as claimed by the petitioners "during the pendency of the instant suit." Such finding is apparently wrong on the facts of the case. The suit was filed in 1988 and the lease was created in 2003. Therefore, the Trial Court is not justified in saying that the devolution of interest did not take place during the pendency of the suit. What was necessary is that the petitioners should have explained as to why the application for substitution under Order XXII, Rule 10 could not be filed before the death of the sole plaintiff. The learned Appellate Court below, by the impugned order dated 23rd July, 2007, affirmed the order passed by the Trial Court and came to the same conclusion.
To decide the case in hand it is profitable to refer to the provisions of Rule 10 of Order XXII of the Code of Civil Procedure. Rule 10 is set out below :-
"Order XXII Rule 10. Procedure in case of assignment before final order in suit. - (1) in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
Order XXII, Rule 10 is based on the principle that trial of a suit cannot be brought to an end merely because interest of a party in the subject-matter of the suit has devolved upon another during the pendency of the suit, but that suit may be continued against the person acquired the interest with the leave of the Court. The Legislature, while enacting Rules 3, 4 and 10, has made it clear that in cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of the deceased party on record within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the ground postulated therein. In cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved. During the pendency of a suit which shows that the Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although, he ceased to have any interest in the subject of the dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on record.
In the instant case, the transfer of interest and/or assignment of interest of the plaintiff has not taken place. Devolution has flown not from the plaintiff but from some other persons. The applicant/petitioners could have filed an application for substitution under Order XXII, Rule 10 even before death of the plaintiff as soon as they took lease of the suit property form Baptist Missionary Church. The lease was executed in 2003 and there cannot be any plausible reason for the petitioners to wait till death of the plaintiff. In that view of the matter, the Trial Court is correct in holding that the suit abated, there being no application forthcoming from the legal heirs and/or representatives of the plaintiff in the suit.
In the instant case, Baptist Missionary Church was the owner of the property. They created lease in 2003 in favour of the petitioners. Therefore, the petitioners have acquired interest form Baptist Missionary Church not from the plaintiff. That being the situation, the petitioners could have filed application for substitution after the execution of the lease or even they could have filed an application simply for their addition in the suit. Therefore, the provisions of Order XXII, Rule 10 of the Code of Civil Procedure cannot be attracted in the present case.
I have considered the decisions cited by Mr. Mitra but those are not applicable in the present case. The devolution of interest must be from the plaintiff in the suit in which the parties have sought for their substitution otherwise the devolution does not connect the plaintiff with the interest in the suit property and accordingly, the application is not maintainable. As held by the Hon'ble Supreme Court in the case of Rikhu Dev (supra) that the word 'interest' in Order XXII, Rule 10 of the Code of Civil Procedure means interest in the property, that is, the subject-matter of the suit and the interest is the interest of the person who was a party to the suit. I am of the considered view that the application for substitution under Order XXII, Rule 10 of the Code of Civil Procedure cannot be made available to the petitioners in the present suit where no interest has been flown from the plaintiff in whose place the petitioners sought to be substituted. The interest in the suit property has been transferred to the petitioners but that does not relate to the plaintiff. Therefore, the application is not maintainable. In this connection paragraph 8 of the said decision is profitable to be mentioned and is set out below :-
"8. This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court. When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, Rule 10 and not Rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason. Order 22, Rule 10, is not confined to devolution of interest of a party by death; it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule. The word 'interest' which is mentioned in this rule means interest in the property i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit."
In view of the discussion made hereinbefore, I agree with the findings arrived at by the learned Courts below and I am constrained to affirm the order passed by the learned Courts below.
The revisional application fails.
Application for substitution under Order XXII, Rule 10 of the Code of Civil Procedure is dismissed.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)