Calcutta High Court (Appellete Side)
Atanu Basak vs Shiba Prosad Mukherjee & on 13 January, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1 13.1.2010
. C.O. No.2590 of 2009 Atanu Basak -vs- Shiba Prosad Mukherjee & Ors.
Mr. Tarakeswar Pal, Mr. M. D. Majumder.
.....For the petitioner.
Mr. Shaktinath Mukherjee, Mr. Sudhis Dasgupta, Mr. Ashok Banerjee, Mr. Jiban Ratan Chatterjee, Mr. Saptanshu Basu... (Senior Advocates) With Mr. M.K. Singh, Mr. R.S. Banerjee, Mr. P. Ganguly........(Advocates) .....For the O.P. Heard the learned counsel for the parties. This is an application under Article 227 of the Constitution of India in respect of an order dated 10th June, 2009, signed by the learned 4th Civil Judge, (Senior Division), Alipore, 24 Parganas (South), on 10th July, 2009, in connection with Title Suit No.66/88.
The petitioner in the instant application is an intervenor who has been subsequently added as defendant no.4 in respect of the suit pending in the court below instituted by the opposite party no.1 herein.
By the order impugned, the learned court below, on an application filed by the plaintiff under Order 39 Rule 7 of the Code of Civil Procedure, 1908, allowed the same with the following observations, inter alia:- 2
"On perusal of the case record it is evident that this is a suit for ejectment on the ground of reasonable requirements. Needless to mention here that in a suit of such nature unless the instant application is allowed it would be next to impossible to bring the true picture before this court. It also appears to me that for proper and effective adjudication of the said local inspection in the suit premises as well as the premises where the plaintiff resides are necessary. Hence, it is ordered that the application dated 1-4-2009 under Order 39 Rule 7 of the C.P. Code is allowed on contest without costs."
The learned advocate appearing on behalf of the petitioner submits that the learned court below could not have passed the impugned order, since the suit has already abated. He submits that once the suit has abated, the court had nothing to do with the matter, and, therefore, the application under Order 39 Rule 7 of the C.P.C. could not have even been entertained by the learned court below. He submits that abatement occurs automatically by operation of law and a specific or a formal order dismissing a suit as abated is not called for. Learned advocate for the petitioner further submits that it was for the plaintiff to have taken steps for substitution and in absence of such steps, the suit was to abate automatically. In this regard, he relies on the judgement of the Supreme Court in the case of Mithailal Dalsangar 3 Singh & ors. Vs. Annabai Devram Kini & ors. reported in (2003) 10 SCC 691. On the same point, he has relied on another judgment of the Supreme Court in the case of Madan Naik Vs. Hansubala Devi reported in AIR 1983 SC 676 (paragraphs 5 and 8). To substantiate further, he has relied on a judgement of the Supreme Court in the case of Shankar Lal & anr. Vs. Sakil Ahmed & ors. reported in (2001)9 SCC 342 (paragraph 5), and also Jaladi Suguna Vs. Satya Sai Central Trust reported in AIR 2008 SC 2866 (paragraphs 10 & 11). He has also relied on a judgement of this court in the case of Surendra Nath Vs. Manatab Monian reported in AIR 1978 Calcutta 344 (paragraphs 5 & 6)and the case of Union of India Vs. Ram Charan reported in AIR 1964 SC 215 (paragraph 7).
In the alternative, learned advocate submits that in the facts and circumstances of the instant case, an application for local inspection under Order 39 Rule 7 of the C.P.C. was not at all necessary, consequent to the deposition of the plaintiff which is already on record. He submits that, if allowed, the same would amount to collection of evidence to build up his case, after his deposition has been taken on record before the learned court below, which is impermissible in law. In this regard, he refers to a Division Bench judgement of this Court in the case of Institution of Engineers (India) & Anr. Vs. Bishnupada Bag & Anr. reported in 1982 CWN 210. He submits that Order 39 Rule 7 of the C.P.C. can only apply 4 to the subject matter of suit and not otherwise for the purpose of collecting evidence. He relies on a judgement of the Supreme Court in the case of Padam Sen & anr. Vs. State of U.P. reported in AIR 1961 SC 218 (paragraphs 10 and 11) to substantiate this point.
On the point of consequential effect of abatement of the suit, he relies on the judgement of the Supreme Court in the case of State of Punjab Vs. Nathu Ram reported in AIR 1962 SC 89 paragraphs 8 and 9).
Learned advocate also submits that when a tenant dies pending a suit for his eviction, all his heirs and legal representatives, in case he died intestate, becomes necessary parties and they are required to be substituted in place of the deceased tenant, although, all such legal heirs and legal representatives may not have been given rights, privileges and protection of a statutory tenant under the Tenancy Act. In order to substantiate this point, he relies on a decision preside over by the Division Bench of this Court in the case of Asha Gupta Vs. Sipra Dutta reported in 1980 CWN 187 (paragraphs 9 &
12). On the same point, he has relied on another judgement of this court rendered by a Single Bench in the case of Shefali Addya Vs. Sunil Kumar Mondal reported in 1991 CWN 792 (paragraph 16).
On the point of abatement again, the learned advocate has relied on a judgement of the Supreme Court 5 in the case of Municipal Council, Mandsaur VS. Fakirchand reported in AIR 1997 SC 1251 (paragraph 6) and the case of Babu Sukhram Singh Vs. Ram Dular Singh & Ors. reported in AIR 1973 SC 204 (paragraphs 2 & 3).
Based on the above judgements, the learned advocate for the petitioner submits that having regard to the facts and circumstances of the instant case, the learned court below ought to have rejected the prayer of the plaintiff made in the application filed under Order 39 Rule 7 of the C.P.C., simply on the ground that the suit had abated.
On the other hand, learned advocate appearing on behalf of the plaintiff, being the opposite party no.1 herein, submits that this court, in an earlier revisional application, being C.O. No.2429/07 by a judgement and order dated 30th April, 2008, observed that it was entirely for the court to decide whether the suit stood abated. He further submits that in the said revisional application, this court was of the opinion that the learned court below was required to expedite hearing and disposal of the suit which was pending since 1988 and accordingly gave certain directions in that respect upon the learned court below. He submits that having regard to the observations made by this court in the said judgement and order dated 30th April, 2008, the point that is sought to be canvassed by the learned advocate appearing on behalf of the petitioner 6 is still open, which the learned court below is required to adjudicate upon. He further submits that the impugned order does not suffer from any apparent or gross error of law or such palpable infirmity of reasoning which would warrant interference of this court exercising its jurisdiction under Article 227 of the Constitution of India. Learned advocate for the opposite party no.1 relies on a judgment of this court in the case of Amar Singh Saini Vs. Rup Chand Das & Anr. reported in 1995(2) CLJ 496 and submits that in the facts and circumstances of the instant case, since one of the grounds for instituting the ejectment suit is the ground of reasonable requirement, a local inspection is necessary under Order 39 Rule 7 of the C.P.C. and by allowing the prayer of the plaintiff, the learned court below has not, in any manner, acted illegally or with material irregularity in exercise of his jurisdiction. He also relies on a judgment of the Supreme Court in the case of Khushro S. Gandhi & Ors. Vs. N. A. Guzder & Ors. reported in AIR 1970 SC 1468 (paragraph 9) and submits that the impugned order is not open for revision by this court.
After considering the submissions made by the learned advocate appearing on behalf of the parties and upon perusing the instant application and the order impugned, it appears that the only issue that requires to be adjudicated upon is whether the impugned order can be interferred with by this court in exercise of its 7 jurisdiction under Article 227 of the Constitution of India, in the facts and circumstances of the instant case. The submissions made by the petitioner insofar as abatement of the suit is concerned, in my opinion, is a matter that is required to be gone into and decided by the learned court below in view of the observations made by this court in the judgment and order dated 30th April, 2008, passed in C.O. No.2429/07. For convenience, relevant portion of the said judgment and order dated 30th April, 2008, is reproduced hereinbelow:-
"Upon perusing the records of the instant case, I find that the suit has been pending before the learned court below for around twenty years and in the intervening period parties have been added as defendants, one such being the added defendant no.4, being the petitioner herein. The defendant no.4 was added as a party to the suit by an order dated 24th June, 2003, which was passed on consent.
From the impugned order dated 20th February, 2007, it appears that the learned learned court below while allowing the application for amendment under Order VI Rule 17 of the Code of Civil Procedure, permitted the said defendant no.4 to file additional written statement. So far as the latter part of that order is concerned, as well as the subsequent order dated 8 4th May, 2007, being the other impugned, I am of the view that it was entirely for the court to decide whether the suit stood abated, as has been contended before this Court by the learned advocate representing the added defendant no.4.
In may not be out of place to take note of the fact that in the original cause title of the plaint, the defendant no.1 has been described, as follows:-
"I, Shri Sushil Chandra Basak, son of late Satish Chandra Basak, for self and as representing the estate of late Satish Chandra Basak and heirs of late Subodh Chandra Basak and late Sukumar Chandra Basak of 136, Harish Mukherjee Road, P.S. Bowanipore, Calcutta-700 025 and 186B, Rashbehari Avenue, P.S. Gariahat, Calcutta - 700 019."
What is to be needed to be noticed is that at the time of institution of the suit, only Shri Sushil Chandra Basak, Shri Subhas Chandra Basak and Shri Suresh Chandra Basak were named as the original defendants. In fact, the original defendant no.1 Shri Sushil Chandra Basak was said to represent the heirs of late Sukumar Chandra Basak. The added defendant no.4 claims to be one of the legal heirs and representatives of late Sukumar Chandra Basak. 9 The issue sought to be raised in the present application by the added defendant no.4, being the petitioner herein, requires adjudication in respect of the nature and character of the tenancy, which in my opinion, is a matter to be finally decided by the learned court below at the time of final hearing of the suit, which is a suit for ejectment and recovery of possession and for mesne profits.
This being the position, I have no doubt in my mind that the two orders impugned does not suffer from any apparent error of law or palpable infirmity of reasoning, which would warrant interference of this Court in exercise of its power under Article 227 of the Constitution of India.
However, I am of the opinion that the learned court below may be directed to expedite hearing and disposal of the suit of 1988. For the said purpose, I direct the learned court below to hear out and dispose of Title Suit 63 of 1988, preferably within a period of eight months, but not later than twelve months from the date of communication of this order, without granting unnecessary adjournments to any of the parties, even on consent.
10
The defendant no.4 being the petitioner herein, shall be at liberty to file his additional written statement before the learned court below, within thirty days from date. I make it clear that the observations made herein, while disposing of the instant application, shall not influence the learned court below at the time of final hearing of the suit and the same shall be decided by the learned trial court on its own merit.
With the above directions the instant application stands disposed of."
The judgment and order dated 30th April, 2008, thus, makes the position clear so far as the issue of abatement is concerned, which is sought to be raised once again in the instant application by the petition herein. So far as allowing the prayer of the plaintiff for local inspection under Order 39 Rule 7 of the C.P.C. is concerned, it is well-settled that in a suit for eviction filed on the ground of reasonable requirement, the plaintiff has to prove that he requires the suit premises for his own use and occupation as he is not in possession of any reasonable suitable accommodation. It is also well-settled that to prove that the plaintiff is not in possession of any reasonable suitable accommodation, it would be necessary to find out the extent of the present accommodation of the plaintiff by local inspection. This has been the settled 11 position in law and this is what has been reiterated by a Single Bench of this court in Amar Singh Sini (supra).
Based on a broad conspectus of what has been discussed hereinabove, I am of the opinion that the impugned order cannot be said to be suffering from any apparent or gross error of law or such palpable infirmity of reasoning which would warrant interference of this court in exercise of its power under Article 227 of the Constitution of India.
Having observed as above, however, I am of the view that dismissal of the instant application cannot stand in the way of the petitioner herein to have the point of abatement of suit finally adjudicated upon by the learned court below, in terms of the judgment and order dated 30th April, 2008, passed by this court in C.O. No.2429/07, which still remains in force. The dismissal of the instant application shall also not cause prejudice to the rights of the petitioner in any manner and it shall be open to the petitioner to take all points available in law before the learned court below. It appears that the time-frame indicated in the judgment and order dated 30th April, 2008 passed in C.O. No.2429/07 has already expired, but the suit is yet to be disposed of. For the interest of justice, the same shall stand extended in the manner indicated below.
The learned court below shall hear out and dispose of the Title Suit No.63/88, preferably within a period of six months, but not later than eight months from 12 the date of communication of this order without granting unnecessary adjournments to the parties.
The instant application stands dismissed, subject to the observations made hereinabove.
Urgent xerox certified copy of the order shall be given to the learned advocate for the parties, if applied for, as expeditiously as possible.
(Biswanath Somadder, J.)