Calcutta High Court (Appellete Side)
Smt. Chhanda Mazumdar vs Naba Kumar Mazumdar & Ors on 23 April, 2019
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1 23.04.2019
Item No.178 Ct. No.22 CHC C.O.2853 of 2018 Smt. Chhanda Mazumdar Vs. Naba Kumar Mazumdar & ors.
Mr. Biswarup Biswas, Mrs. Atreyee De (Ganguly) ...for the petitioner Mr. Dyutiman Banerjee ...for the opposite parties Affidavit-of-Service filed by the petitioner be kept on record. The impugned order dated 2nd August, 2018 passed by the Learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No.12 of 2012 rejecting an application under Order VI Rule 17 praying for amendment is the subject of challenge in this revisional application under Article 227 of the Constitution of India.
According to learned advocate for the petitioner the defendants were sought to be evicted from the suit premises in connection with suit for eviction already initiated by the petitioner. Admittedly defendants inherited the tenancy from the erstwhile tenant Bhabani Chandra Mazumdar who died long before. By the proposed amendment the petitioner/plaintiff wanted to incorporate the provisions available under Section 2(g) of 2 W.B.P.T. Act, 1997 on the ground that after the demise of the erstwhile tenant, the defendants, who inherited the tenancy, were supposed to retain the tenancy for a period of five years and not beyond that.
According to learned advocate for the petitioner, learned court below acted without jurisdiction by rejecting the proposed amendment under a misconception of law that by allowing the proposed amendment there will be change in the nature and character of the suit. It is contended by the learned advocate for the petitioner that admittedly, defendants are tenants, who inherited the tenancy and after the demise of the erstwhile tenant, and the provisions of Section 2(g) of W.B.P.T. Act would be automatically drawn into, and thus the proposed amendment will not create a new cause of action in the pending suit for eviction of tenants.
Learned advocate for the opposite parties opposing the prayer for amendment submits that the proposed amendment is contrary to the averment contained in para 2 of the amended plaint.
Upon perusal of the impugned order it appears that the court below refused to allow the amendment conceiving that if the prayer is allowed, there will be curtailment of the rights of the defendants/tenants, as by the proposed amendment they would 3 be described to be the unauthorised occupants in respect of the tenanted house, which should not be allowed any more. The provisions contained in Section 2(g) of the West Bengal Premises Tenancy Act, 1997 in an unambiguous terms lays down that in the case of death of erstwhile tenant, his heirs ordinarily living with the original tenant may continue possession either for five years from the death of the original tenant, or from the date of the Act coming into force, whichever is later. Upon perusal of the proposed amendment, found in page 53 of the revisional application, it appears that plaintiff/landlord sought to incorporate the fact of the death of the original tenant namely Sri Bhabani Chandra Mazumdar, and after his demise the legal heirs ordinarily living with him would be permitted to continue the tenancy for a period of five years after the death of original tenant, and after the expiry of the five years, they should be treated as unauthorised occupants in respect of the tenanted house. Since, the suit was initiated for eviction of the tenants impleading defendants, who admittedly inherited the tenancy from the original tenant, there would be no change in the nature and character of the suit including its cause of action involved therein, in the event, the proposed amendment is allowed. It is given to understand that the plaintiff seeking eviction has already furnished his affidavit-in-chief and the court is in the 4 process of collecting the evidence of the plaintiff and the same has not been completed so far as plaintiff/landlord is concerned. In that view of the matter, the proposed amendment if allowed will not cause any prejudice to the defendants opposing the prayer for proposed amendment. Since provisions contained in Section 2(g) of the West Bengal Premises Tenancy Act, 1997 would automatically come into operation in the given set of facts, when admittedly, the defendants inherited the tenancy from the original tenant, taking into consideration such aspect, the Court is of the view that no compensatory cost should be recorded in this case, while disposing of this revisional application. The revisional application succeeds.
The impugned order dated 2nd August, 2018, passed by Learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No.12 of 2012, rejecting the prayer for amendment under Order VI Rule 17 of the C.P.C. is set aside. Learned court below is directed to incorporate the proposed pleading in the plaint itself by taking necessary steps to that effect.
The petitioner/plaintiff is directed to file amended plaint within the period provided in the Code of Civil Procedure and in the event, if the amended plaint is filed within the time period stipulated thereof, the same will be addressed by the 5 defendants/opposite parties by filing an additional written statement.
Learned court below is directed to ensure that the defendants are duly provided with opportunity of filing additional written statement. Since the suit is appearing at the PH board, steps may be taken by the learned court below to ensure expeditious disposal of the suit without granting any unnecessary adjournment to either of the parties, unless it is unavoidable. With this direction/observation, the revisional application, accordingly, stands disposed of.
The petitioner is directed to make communication of this order to the learned court below for necessary compliance. Urgent certified photostat copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Subhasis Dasgupta, J.)