Calcutta High Court (Appellete Side)
Biswanath Chattoraj & Ors vs State Bank Of India & Ors on 24 November, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 295 of 2006 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Biswanath Chattoraj & Ors.
Versus
State Bank of India & Ors.
For the petitioners: Mr. Asish Kr. Sanyal,
Mr. Anindya Sundar Chatterjee.
For the opposite parties: None appears.
Heard On:10.11.2010.
Judgement On: November 24, 2010.
Prasenjit Mandal, J.: This application is at the instance of the plaintiffs and is directed against the order no.53 dated December 23, 2005 passed by the learned Civil Judge (Senior Division) at Katwa in Title Suit No.4 of 1998 thereby allowing an application under Order 1 Rule 10 of the Code of Civil Procedure.
The short fact is that the plaintiffs instituted a title suit being numbered as Title Suit No.4 of 1998 for eviction of a tenant 2 and damages for use and occupation of the suit premises, as described in the schedule of the plaint. The plaintiffs filed the said suit in the capacity of trustees of Ahibhusan Dutta Trust Estate. In that suit, the opposite party nos.2 & 3 herein filed an application under Order 1 Rule 10 of the C.P.C. praying for addition of parties as defendants. That application was allowed by the order impugned. Being aggrieved, this application has been preferred by the plaintiffs.
Upon hearing learned Advocate for the petitioner and on going through the materials on record, I find that the Title Suit No.4 of 1998 is a litigation between the landlords and a tenant for recovery of possession and damages. That suit was filed as long as back in 1998. At the very belated stage, this application for addition of parties has been preferred by the opposite party nos.2 & 3. It is the contention of the opposite party nos.2 & 3 that the plaintiffs are not the trustees at all at present and they have no right, title and interest in the suit. If it is the fact and if the plaintiffs fail to prove that they have no right to proceed with the suit as trustees, the suit will be dismissed. But it is a matter between the plaintiff and the defendants to the suit. If the opposite party nos.2 & 3 are allowed to be added as defendants, they would file a written statement and they would raise their stand that the trust is not in existence and that the 3 plaintiffs have no right, title and interest in the suit property. Therefore, the scope of the suit would be enlarged to a great extent to decide the matter in issue between the parties and it will not be confined to a litigation between the landlords and defendant on ejectment.
The decision of J. J. Lal Pvt. Ltd. and ors. Vs. M. R. Murali and anr. reported in AIR 2002 SC 1961 clearly lays down that the question whether the opposite party nos.2 & 3 are the owners of the suit property are not germane to the proceedings and so impleadment of those persons would change the complication of litigation and raise such controversies as are beyond the cope of this litigation. In such a situation the application for addition of parties should be rejected. This decision is very much application in the instant case.
Similarly the decision of Mt. Bindru Vs. Sada Ram and ors. reported in AIR 1960 J & K 67 has also laid down that a part who comes at the belated stage need not be impleaded as a party in a litigation which has progressed considerably. If the opposite party nos.2 & 3 are added then the evidence to be recorded in the main litigation between the landlords and a tenant would not be limited to the same. But the question of right, title and interest between the plaintiffs and the opposite party nos.2 & 3 4 would arise and so the main enquiry in the suit will not remain the same as before. In such a situation, the decision of Mt. Bindru (supra) will also be applicable in the instant case and so the application for addition of parties should not be granted in such circumstances.
Mr. Sanyal has also referred to the decision of Chandi Charan Paul Vs. Rabindra Nath Adhikary and anr. reported in 2001 (1) CLJ 600 and submits that when there is a contractual relationship of landlord and tenant between the plaintiff and defendant and where the defendant has been inducted into possession of the suit property as a premises tenant by the plaintiff, there is no question of impleading a third party as a party to the proceeding to set up his title to the suit property in view of the provisions of Section 116 of the Evidence Act, 1872. Thus, he has referred to the paragraph nos.10 & 11 of the said decision.
Upon due consideration of the above decisions, I am of the view that since the litigation is between a landlord and a tenant, a third party should not be allowed to be added in the suit. So, the order impugned cannot be supported. The learned Trial Judge has failed to exercise his jurisdiction vested in him. The order impugned cannot be supported.
5Accordingly, the revisional application succeeds. It is allowed.
The impugned order is hereby set aside.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)