Calcutta High Court (Appellete Side)
Siddheswar Banerjee vs M/S Kesharshyam Constructions Pvt. ... on 26 February, 2014
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 93 of 2014
Siddheswar Banerjee
-vs-
M/s Kesharshyam Constructions Pvt. Ltd. & Anr.
For the petitioner : Mr. Jiban Ratan Chatterjee,
Mr. Sumit Kr. Ray,
: Mr. Nayeemuddin Munshi.
For the O.P. No. 1 : Mr. Abhrajit Mitra,
: Mr. Jishnu Chowdhury,
: Ms. Sayanit Nandy,
: Mr. Soumabho Ghosh,
: Ms. Sayani Chatterjee.
For the O.P. No.2 : Mr. Soumya Roy Chowdhury,
: Mr. Satadip Bhattacharya,
: Ms. Ankita Mitra.
Heard on : 06.02.2014 & 19.02.2014
Judgment on : 26.02.2014
HARISH TANDON, J.:
This revisional application is directed against an order dated December 19, 2013 passed by the Additional Civil Judge (Junior Division), 2nd Court, Alipore in Ejectment Suit No.40 of 2006 by which an application for addition of party is rejected.
Before addressing the points canvassed by the respective parties, it is axiomatic to record the salient facts of the case. The opposite party no.1 filed a suit for eviction against the opposite party no.2, inter alia, on the ground of default in payment of rent and reasonable requirement.
The case made out in the plaint is that the opposite party no.1 is a owner in respect of the premises no. 41A, S.P. Mukherjee Road, Kolkata- 700 026. The opposite party no.2 is a tenant in respect of two shop rooms along with one privy and bathroom in the ground floor at the said premises at a monthly rental of Rs. 120/- payable according to English calendar. By statutory notice dated August 10, 2005, the said tenancy of the opposite party no.1 who determined but despite thereof, the said opposite party did not vacate and/or hand over the vacant possession of the said tenanted premises. Initially the suit was contested by the said opposite party but thereafter, a settlement was arrived between the opposite parties and an application for compromise is filed. At this stage, the petitioner filed an application for addition of party claiming himself to be one of the joint tenant in respect of the tenanted premises. The petitioner specifically pleaded in the said application that previously the tenanted premises was let out to a partnership firm namely M/s Café, of which the petitioner is one of the partner. It is further stated in the said application that Title Suit No.48 of 2012 has been instituted by the employees of the said partnership firm seeking a declaration that they have every legal right to run and continue the restaurant in the name and style M/s Café, with further declaration that the petitioner and the opposite party no.2 who are the partners of the said partnership business have no right to hand over and transfer the said property to a third person. The petitioner filed the written statement cum counterclaim in the said suit seeking a declaration that he is one of the owner of the said partnership business and have a right to access in the said partnership business and other consequential reliefs in the form of permanent injunction. The foundation of the counterclaim is based on the deed of partnership dated 31st December, 1974 whereunder the petitioner have a proportionate share to the extent of 40%, the opposite party no.2 have a proportionate share of 50% and the father of the petitioner and the said opposite party was having 10%. It would further reveal from the said counter-statement that the father of the petitioner and the opposite party no.2, died on August 1, 1976 and according to the petitioner, his proportionate share devolved equally upon them. It is further borne from the record that the opposite party no.2 has instituted Title Suit No. 118 of 2012 before the Civil Judge (Junior Division), 4th Court, Alipore for declaration that he has unfettered right to use and enjoy the ownership of the partnership business at the tenanted premises as a proprietor since June 21, 1994. The case made out in the said suit as deciphered therefrom is that the petitioner showed intention to retire from the said partnership business and after the settlement of accounts, a deed of settlement was executed in the form of the dissolution of the partnership which was duly notarized before the Notary Public. After dissolution of the partnership business and in terms of the settlement arrived between the parties, the opposite party no.2 is carrying on the business in the same name and style as a proprietor thereof. It is stated at the bar that the petitioner have also filed a suit for declaration that the purported deed of settlement cum dissolution is manufactured and null and void.
In the backdrop of the aforesaid facts, the point requires to be considered in this revisional application is whether the petitioner can be added as the party defendant in a suit for eviction filed against the opposite party no.2.
Mr. Jiban Ratan Chatterjee, the learned Senior Advocate appearing for the petitioner submits that both the opposite parties in this revisional application have colluded to evict the petitioner from the suit premises. He further submits that the tenancy created in the name of the partnership firm is, in fact, a tenancy of the partners thereof as a joint tenant who can very well be added in a suit for eviction instituted by the landlord. He vehemently submits that the suit is not competent having instituted against one of the joint tenant and the left out joint tenant have right to intervene in the said proceedings to protect such right. He placed reliance upon a judgment of the Apex Court in case of Textile Association (India) Bombay Unit -vs- Balmohan Gopal Kurup and another reported in AIR 1990 SC 2053, in support of his contention that if any of the heir of the original tenant is not made a party in the eviction suit, he can be added for completed and effective adjudication of the lis. By borrowing an inspiration from a judgment rendered in case of Jaharlal Saha & Ors. -vs- Pradip Saha & Ors. reported in (2006) 1 CHN 513, Mr. Chatterjee strenuously argues that the suit is not competent in absence of any of the heirs of the original tenant. Lastly Mr. Chatterjee submits that one of the joint tenant is a necessary and proper party to an eviction suit and the Court should have allowed the application filed by his client.
Mr. Abhrajit Mitra, the learned Advocate appearing for the opposite party no.1 audaciously submits that a party claiming independent right, title and interest over the tenanted premises cannot be added in an eviction suit to convert the same into a suit for title and relied upon a judgment of this Court in case of B.K. Dutta -vs- Sm. Nita Madan & anr. reported in AIR 1984 Cal 228, Pallav Kumar Banerjee & ors. -vs- Chandrakala Lal & anr. reported in (2001) 1 CHN 490, Pravat Kumar Misra -v- Prafulla Chandra Misra & anr. reported in AIR 1977 Orissa 183 and Kanak Prova Dey & anr. -vs- Asha Devi Jaisawal & anr. reported in 2008 CWN 329. Mr. Mitra further submits that the person sought to be added as the party in a proceeding should have a direct interest in the issue and not the indirect or commercial interest, by placing reliance upon a judgment of the Supreme Court in case of New Redbank Tea Co. Pvt. Ltd. -vs- Kumkum Mittal & ors. reported in (1994) 1 SCC 402. He further submits that the Trial Court has not committed any illegality in rejecting an application for addition of party as the petitioner is neither necessary nor proper party in a suit for eviction filed against the admitted tenant.
Order 1 Rule 10 (2) of the Code of Civil Procedure confers power on the Court to add a party who ought to have been joined either suo moto or on an application of any party provided; he is necessary or proper party. What makes person unnecessary party is without whom, no order can be passed effectively. The proper party is one whose presence is necessary for complete and final adjudication of the dispute. It is imperative on the part of the Court to find out in the context of the controversy between the parties already on the record whether the presence of the third party is necessary. The object behind the addition of a third party in a lis is to avoid multiplicity of the proceedings and adjudication of the disputes completely and effectively. Bearing in mind the aforesaid principles, it is axiomatic to see that a person seeking his addition has a direct and substantial interest in the subject matter of the lis as distinguished from the indirect and commercial interest. It is to be further seen that if a party sought to be added is bound by the result of the decision and the dispute in an action cannot be effectively and completely adjudicated in absence of such party, the addition is a rule.
The dispute involved in the instant suit is whether the opposite party no.2 who admitted to be a sole tenant has committed default in payment of rent and whether the opposite party no.1 as the owner/landlord of the premises reasonably requires the said premises for his own use and occupation. The aforesaid issues can be effectively and completely adjudicated by the Court in absence of the petitioner and the suit is not likely to fail on the ground of non-joinder of the necessary and proper party. Even if, it is perceived that the petitioner shall be subjected to a risk of being evicted to the said premises, he is not rendered remediless. The petitioner can assert his right by filing a suit or can also resist a decree claiming an independent right, title and interest under Order 21 Rule 101 of the Code of Civil Procedure.
The matter can be viewed from another angle as well. The Court should not allow the addition to be made in a suit for eviction where a party seeking addition claims an independent right, title and interest so as to convert the simple suit for eviction into a complex suit of title.
The reliance is placed on a decision of this Court in case of B.K. Dutta (supra) wherein the Co-ordinate Bench held:
"3. After considering the facts and circumstances of the case and the submissions of Mr. Deb, it appears to me that the opposite party no.2 should not be added as a party defendant. Mr. Deb is justified in his contention that the original tenant Sm. Nita Madan has not contended that she was not the tenant of the suit premises but her husband was the tenant. Accordingly, on the pleadings put forth by the parties there is no occasion to decide an issue as to whether or not the tenancy was created in favour of the said defendant. Sm. Nita Madan or in favour of some other, else Mr. Deb is also justified in his contention that the husband intending to set up an independent right of tenancy on his own account, cannot be bound by the decree of eviction passed against the wife on the footing that wife is the only tenant. Such independent title can be set up by the husband who is a stranger to the suit either in the execution proceeding or in a separate suit for declaration of his title to suit property. The husband in the suit as framed cannot be held to be a necessary party or a proper party and in my view, for any effective adjudication of the dispute involved in the suit, the presence of the husband is not at all necessary. Accordingly, there is no occasion to add the husband either under Order 1, Rule 10 of the Civil Procedure Code or under Section 151 of the Code."
4. It may, however, be noted in this connection that exercise of inherent power under Section 151 is not warranted if the action proposed to be taken under inherent powers can be effectively taken under the express provisions of the Civil Procedure Code. It appears to me that if the opposite party no.2 is allowed, to be impleaded as a party defendant in the suit for raising the dispute that he has an independent right as a tenant in the disputed premises and he and not his wife is the real tenant under the plaintiff, then a simple suit for ejectment of an admitted tenant will be converted into a title suit."
The similar view is expressed by the Orissa High Court in case of Pravat Kumar Misra (supra) where the impleadment was denied as the suit for recovery of possession would be converted into a suit for title. The reliance is further placed upon a judgment of this Court in case of Pallav Kumar Banerjee (supra) where the sub-tenant sought his addition in an eviction suit but the Court rejected the application for addition as the issue foreign to a suit for eviction cannot be allowed to be raised by adding a party in following words:
"12. Now turning to the fact of the present case, I find that the opposite party no.2 not even claimed any subtenancy through opposite party no.1 but asserted his independent right as tenant. In the suit the issue is whether the petitioner is entitled to evict opposite party no.1 on the ground of subletting in favour of one M/s Calcutta Saline or on the ground of violation of clauses (m),
(o), (p) of section 108 of the Transfer of Property Act. The Opposite party no.2 wants adjudication of a different issue whether he is a tenant, an issue foreign to the suit. Thus, his remedy lies either by filing a fresh suit for declaration of his tenancy right or to resist the decree if obtained by way of adjudication under Order 21 Rule 101 of the Code. Therefore, the learned trial Judge acted illegally and with material irregularity in adding opposite party no.2 in the suit although he is neither a necessary nor a proper party."
The decision rendered in case of Kanak Prova Dey (supra) is based on somewhat similar facts involved in the instant case. In the said report, the person who sought his addition instituted independent suit for declaration of his right, title and interest, a plea of avoidance of multiplicity of the proceedings was taken, the Court answered in the following:
"8. In the present case, there is no question of avoiding multiplicity of proceedings as the suit in which the petitioners are plaintiffs is already pending and the first respondent herein is a party to such suit. Further, the petitioners have unequivocally asserted their possession of the suit premises and the plaintiff, who has the carriage of proceedings, stopped their entry in the suit. The plaintiff, at her peril, resisted the impleadment application and took upon herself the consequences thereof. The issue on which the petitioners seek adjudication by being impleaded in the suit is an issue that will be adjudicated upon in the petitioners' suit where the first respondent herein is a party. Rather than the order impugned prejudicing the petitioners, the petitioners can claim some equity in their favour in resisting execution of the decree that may be passed in this suit.
9. Since the matter as to the petitioners' rights can be adjudicated in the petitioners' suit, if such issue is answered in the petitioners' favour in their suit, by the principle of issue estoppel, the decree that the first respondent may obtain may not be executed against the petitioners and there will be no question of another trial and the consequential multiplicity of proceedings that the petitioners profess to avoid. Though the words "collusion" and "fraud" do not find express mention in the petitioners' application under Order 1 Rule 10 before the court below, there is an underlying suggestion of collusion that can be garnered therefrom. Yet, even if it is accepted that the petitioners' application for being added as parties was founded on a charge of collusion and fraud against the parties to the suit, in view of the petitioners' own suit, there is neither any irregularity committed by the order impugned nor any prejudice caused to the petitioners upon their application in this suit being dismissed."
The Apex Court in case of J. J. Lal Pvt. Ltd. & others -vs- M. R. Murali & another reported in (2002) 3 SCC 98 categorically held that where the impleadment of a person would change the complexion of the litigation, he is neither a necessary nor a proper party, the following passage can be aptly quoted as under:
"28. Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord- tenant suit. The relationship of the Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings. The impleadment of any of the two applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor is their presence necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title, whatever it may be, in any independent proceedings before a competent forum. The applications for impleadment are dismissed."
Applying the ratio laid down in the above decisions, it leads to an inevitable conclusion that the petitioner claiming his independent right, title and interest, if impleaded in a suit for eviction filed against the opposite party no.2, it would change the complexion of the suit which is undesirable. The simplicitor suit for eviction cannot be converted into a complex suit of title on addition of a third party. Furthermore, the petitioner have instituted a title suit where the adjudication of his right, title and interest can very well be made despite the decree, if any, passed in a said eviction suit.
This Court, therefore, does not find any ambiguity, infirmity and/or illegality in the order passed by the Trial Court in dismissing an application for addition filed by the petitioner.
The revisional application, thus, fails.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)