Calcutta High Court (Appellete Side)
Durga Devi Sharma vs Pradip Kumar Mondal on 8 November, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
8.11.2013
C.O. No. 2109 of 2013
Durga Devi Sharma ......... Petitioner
Vs.
Pradip Kumar Mondal ......... Respondent
Mr. Jiban Ratan Chatterjee Mr. Subrata Chaudhuri ... For the petitioner Mr. Bidyut Kumar Banerjee ... For the Opposite Party This revisional application arose out of order dated 26.4.2013 passed by the learned Additional District & Sessions Judge, 4th Court, Barasat in Civil Revision Case No. 51/99 arising out of T.S. No. 745/93 rejecting an application under Order 22 Rule 3 of the Code of Civil Procedure.
The short background is that the petitioner No. 1 was occupying one shop room within the premises, having holding No. 4 of Arabinda Road, Naihati Municipality as a tenant at a monthly rent of Rs. 50/- under landlord Joydeb Mukherjee. The said Joydeb Mukherjee instituted T.S. No. 298/79 before the learned 2nd Munsiff, Barasat for eviction of petitioner No. 1, now deceased. During pendency of the said suit Opposite Party No. 1 to 4 filed an application under Order 22 Rule 10 Code of Civil Procedure claiming that the interest of the suit holding has developed upon them by purchase from the Joydeb Mukherjee. The 2 petitioner No. 1, now deceased, filed objection against such petition of Opposite Party No. 1 to 4 on the ground that the alleged purchase by Opposite Party was sham transaction and the sale deed is fraudulent, void and without consideration, since the father of Opposite Party nos. 1 to 4 Subodh Mondal was also a tenant of one shop room within the said premises being holding No. 4 on Arabinda Road, Naihati against whom the eviction suit was also proceeded by the said landlord Joydeb Mukherjee. Sri Mukherjee in collusion with Opposite Party No. 1 to 4 filed an application for dismissal of the suit for non-prosecution. Without disposal of the petition under Order 22 Rule 10 of the Code of Civil Procedure, the learned Court below dismissed the T.S. No. 298/79 for non-prosecution.
The petitioner No. 1 being aggrieved by the said order preferred the revisional application being CR No. 19/92 before the learned Judge at Barasat who rejected the same.
Being aggrieved by and dissatisfied with the said order, the petitioner No. 1 filed a review application being Misc. Case No. 6/95 which is pending.
The Opposite Party No. 1 to 4 filed a suit for permanent injunction against the petitioner No. 1, now deceased restraining her from sub-letting or transferring the suit property. That suit is T.S. No. 395/92 before the learned Civil Judge (Sr. Div.), 3 Barasat. The petitioner No. 1 filed an application under Order 7 Rule 11 of the Code of Civil Procedure. By order dated 21.1.99 the learned Civil Judge (Jr. Div.) rejected the application under Order 7 Rule 11 Code of Civil Procedure.
Being aggrieved by the said order dt. 21.1.99 petitioner No. 1, now deceased preferred a revisional application being CR case No. 50/99 before the learned District Judge, Barasat. During pendency of the revisional application petitioner No. 1 died on 26.1.2000 and the petitioner No. 2, 3 and proforma Opposite Party No. 5 filed an application under Order 22 Rule 3 of the Code of Civil Procedure for substitution in place of petitioner No. 1 as legal heirs and representatives. On hearing, by order No. 13 dt. 10.8.01, the learned Judge, Barasat allowed the petition for substitution filed by them. As such they are contesting T.S. No. 395/1992 filed by the Opposite Party No. 1 to 4. CR case No. 50/99 against the petitioner No. 1, now deceased.
After institution of the T.S. No. 395/92 the Opposite Party No. 1 to 4 filed another T.S. No. 745/93 for eviction from the suit property against the deceased petitioner No. 1 before the learned Civil Judge (Sr. Div.), 1st Court, Barasat. In the T.S. No. 745/93 deceased petitioner No. 1 filed application for rejection of plaint under Order 7 Rule 11 of the Code 4 of Civil Procedure on the ground that the suit is barred by law as the said Misc. Case No 6 of 1995 is pending before learned 4th Additional District Judge, Barasat.
The learned District Judge, Barasat by order No. 17 dated 5.2.99 rejected the said application.
Being aggrieved by the said order No. 17 dt. 5.2.99 the petitioner No. 1 preferred the application under Section 115A of the Code of Civil Procedure before the learned Judge as CR case No. 51/99. The Opposite Party No. 1 to 4 appeared and filed written objection therein denying all material allegations. During pendency of the revisional application petitioner No. 1 died on 26.1.2000. The petitioner No. 2, 3 and proforma Opposite Party No. 5 filed an application Order 22 Rule 3 of the Code of Civil Procedure for substitution in place of legal heirs and representatives stating that Durga Devi, the widow of Biswanath Singh alias Sharma died issuless and Mahendra Singh, father of petitioner No. 2 and 3 of the proforma Opposite Party No. 5 is the brother of Biswanath Singh alias Sharma and petitioner No. 2 and 3 and proforma Opposite Party No. 5 being brother's sons of Biswanath Singh alias Sharma became legal representatives of the deceased petitioner No. 1. The Opposite Party No. 1 to 4 filed written objection against the said application for substitution stating that the petitioner No. 1 died without leaving 5 any heir or successor. It was stated in the objection that her husband died 25 years back and they had no issue and Mahinder Singh @ Sharma, father of petitioner No. 2 and 3 and proforma Opposite Party No. 5 was running her business in the tenanted portion in the name of Bengal Sweet Stores. After filing of application under Order No. 22 Rule 3 of the Code of Civil Procedure and after lapse of 3 years, the Opposite Party No. 1 to 4 filed the T.S. No. 32/2003 for eviction of rank trespasser and recovery of khas possession and permanent injunction against petitioner No. 2 and 3 and proforma Opposite Party No. 5 before the learned Civil Judge (Jr. Div.), Barrackpore. The petitioner No. 2, 3 and proforma Opposite Party No. 5 are contesting denying everything.
By order No. 20 dated 25.7.03, the learned District Judge, Barasat allowed the substitution petition dated 26.4.2000 in connection with revisional application case No. 51/99.
Being aggrieved by and dissatisfied with such order No. 20 dt. 25.7.2003 passed by the learned Trial Judge, the Opposite Party No. 1 to 4 preferred revisional application being C.O. No. 1785/03 before the Hon'ble Court. On 18.2.04 the Hon'ble Court disposed of the matter by directing the learned Court 6 below to take up the petition for hearing after giving opportunity to both the sides. The learned Additional District Judge by his order dated 22.6.11 allowed substitution application in connection with the CR Case No. 51/99 arising out of Title suit No. 745/93.
Being aggrieved by the said order dt. 22.6.11, the Opposite Party No. 1 to 4 preferred revisional application being C.O. No. 2512/11 before the Hon'ble Court. On 1.9.11, the Hon'ble court directed the learned Court below to decide the issue first as to whether the petitioner No. 2, 3 and proforma Opposite Party No. 5 are legal heirs of the deceased tenant before deciding any other issue in the eviction proceedings.
Accordingly, by order dated 2.5.12, the learned Trial Judge rejected the substitution petition under order 23 rule 3 in connection with CR case No. 51/99 arising out of T.S. No. 745/93 since it was not disclosed in cause title or in the application for substitution under Order 22 Rule 3 of the Code of Civil Procedure that the petitioner No. 2, 3 and proforma Opposite Party No. 5 are relatives of the deceased petitioner No. 1 or at the time of death they used to reside with deceased petitioner No. 1 or there is no whispering that either Biswanath Sharma or Durga Devi Sharma and Biswanath Sharma @ Singh or Durga Devi Sharma @ Singh are same or identical 7 persons and thereby abated CR case No. 51/99 arising out of T.S. No. 745/93.
Being aggrieved by the order dated 2.5.12 the petitioner preferred application being C.O. No. 2417/2012 before the Hon'ble Court. On 18.1.13, the Hon'ble Court disposed of the revisional application directing the lower court to decide whether the petitioner No. 2, 3 and proforma Opposite Party No. 5 are heirs of the deceased tenant and unless such consideration is made taking aid of Order No. 22 Rule 5 of the Code of Civil Procedure, the revisional court should not have proceeded in a slipshod manner. In terms of such order dt. 18.1.13 the learned Trial Judge by his order dated 26.4.13 rejected substitution petition in connection with CR case No. 51/99.
It was argued by the learned Counsel for the Petitioner that petitioner No. 2, 3 and proforma Opposite Party No. 5 are close relatives not only of Durga Devi, they are, accordingly, legal heirs of deceased petitioner No. 1. So, they ought to have been joined as legal heirs in the cases to contest and strongly criticised the impugned order. It was claimed that petitioner No. 2, 3 and proforma Opposite Party No. 5 are in possession at the time of death of petitioner No. 1 and after termination of tenancy rent is being deposited since original T.S. No. 298/1979 is pending.
8
It was contended that the deceased petitioner No. 1 and Mahinder Singh were jointly carrying on business under the name of Bengal Sweet Stores in the tenanted room at Naihati. It was further argued that petitioner No. 2, 3 and 5 are coming under Section 2(h) of the said Act after disposal of the petition under Section 17(1) and (2) and (2A) of the said Act. It was also contended that the learned Court below illegally held that the "Partner" and "Tad birkar"
cannot be a relative.
It was argued by the learned Counsel for the Opposite Party that Durga Devi Sharma since deceased was a tenant in respect of the suit property in her personal capacity. The tenanted premises was never taken on rent in the name of the firm by Durga Devi. Rather she herself was a monthly tenant at the rate of Rs. 50/- p.m. under erstwhile landlord. The very first paragraph of CR case No. 51/99 filed by Durga Devi refers to that effect. She was a literate lady. She signed the copy of revisional application. Her signature of Durga Devi never appears as Durga Devi Singh as allegedly claimed by the present petitioners. Durga Devi Sharma was named and identified in all places and nowhere her surname was written as "Singh" instead of Sharma. Further, affidavit portion of CR case No. 51/99 shows that petitioner No. 2 Amarjit Singh s/o. late Mahendra 9 Singh, being the partner of the business and tadbirkar affirmed such revisional application on behalf of Durga Devi Sharma, since deceased. It was not the claim of the petitioner No. 2 that he was a relation of Durga Devi. Rather, he described himself as a partner of the business.
It was also appearing in CO No. 1785/2003 filed by the present Opposite Party that the Hon'ble court held that "Biswanath Singh could have nothing to do with Durga Devi Sharma because her husband was Biswanath Sharma and not Biswanath Singh. Therefore, the entire basis of allowing the application for substitution prima facie apopears to be wrong and erroneious".
Durga Devi Sharma was widow of Biswanath Sharma and not Biswanath Singh as claimed. Therefore, Biswanath Sharma and the father of present petitioner No. 2 and 3, Mahinder Singh could not be brothers. It was also argued that "Singh" and "Sharma" are two different communities of Punjab. Therefore, petitioner No. 2 and 3 do not have any relation with Durga Devi or her husband Biswanath Sharma by blood consanguinity or by marriage. Moreover, in CR case No. 50/99 the petitioners No. 2 and 3 have been substituted in the capacity of partners of the purported firm and not as brother's 10 sons of late Biswanath Sharma, husband of Durga Devi Sharma.
I have heard the submissions made by the learned Counsel for both the parties. Carefully examined the impugned order. Admittedly, Durga Devi was a tenant in the suit premises. She was issue-less. Her title appears to be "Sharma". The petitioner No. 2, 3 and 5 used their title as Singh @ Sharma and claimed that they are relations of Durga Devi. No iota of evidence or document coming from the family of Durga Devi is filed by the present petitioner to prove that Durga Devi is their relation or she had two titles Sharma @ Singh. Since Durga Devi died issue-less the tenancy right ended therein absence of any concrete proof that the present petitioners are blood relations of the husband of Durga Devi Sharma. It is pertinent to mention that both parties carried the battle from lower court to the Hon'ble Court on several occasions and lastly, the Hon'ble Court directed the learned Court below to take into account the definition of tenant as engrafted in the Act of 1997. At the same time it was directed to take aid of Order 22 Rule 5 of the Code of Civil Procedure which reads as under:
"R. 5. Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a 11 deceased plaintiff or a deceased defendant, such question shall be determined by the Court.
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question."
The impugned order appears to be a speaking one. Due inquiry has been taken up by the learned Court below Order 22 Rule 5 of the Code of Civil Procedure.
Considering all aspects as well as the laws laid down in different decisions referred to above before the learned Court below and the dictionary meaning of the words legal heirs, the learned Court below appears to have arrived at a correct conclusion.
This being the position, I find no merit in the revision.
Accordingly, the revision stands dismissed. Urgent certified copies, if applied for, to be issued according to rules.
(Toufique Uddin, J.)