Calcutta High Court (Appellete Side)
Ganesh Prasad Singh & Ors vs Subhas Shaw on 15 May, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 08. 15.05.2017
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 792 of 2013 Ganesh Singh alias Ganesh Prasad Singh & Ors.
-Vs.-
Subhas Shaw Mr. Rabindranath Mahato ......for the petitioners Mr. Tarak Nath Halder, Mr. Sagnik Chatterjee ......for the opposite party This revisional application at the instance of the defendants in the ejectment suit, is directed against the order dated January 17, 2013 passed by the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24- parganas in Title Suit No. 2 of 2007. By the impugned order, the learned Court below rejected the application filed by the petitioners for amendment of their written statement.
The opposite party filed the suit before the learned Court below claiming a decree for recovery of possession of the suit property by evicting the present petitioners. The plaint case of the opposite party is that he is a thika tenant in respect of the suit property and the petitioners are the bharatias under
the Calcutta Thika and Other Tenancy and Land (Acquisition and Regulatition) Act of 1981 (in short "the Act of 1981"). As per Section 9 of the Act of 1981, 2 the monthly tenancy of the petitioners in respect of the suit property is governed by the West Bengal Premises Tenancy Act, 1956 (in short "the Act of 1956") and the ejectment suit is governed under the Act of 1956. In his plaint, the opposite party claimed to have filed the suit after service of the notice under Section 13(6) of the Act of 1956 upon the petitioners.
The petitioners are contesting the said suit and in the year 2000 they filed their written statement. In their written statement, the petitioners did not raise any dispute with regard to the identity of the suit property. They filed applications under Sections 17(1) and 17(2) of the Act of 1956 for payment of the admitted arrear rent, as also for adjudication of the actual arrear rent payable to the opposite party in respect of the suit property. In the said applications, the petitioners admitted themselves to be the tenants in respect of the suit property. According to the petitioner, they are also depositing the monthly rent for the suit property before the learned Court below. However, after the cross-examination of the witness of the plaintiff-opposite party commenced, in the year 2013 the petitioners filed the said applications for amendment of their written statement. By the proposed amendment, the petitioners sought to incorporate averments in their written statement that the learned Court below, as the Civil Court, lacks the jurisdiction to entertain the suit for ejectment of a thika tenant against the bharatia. They also sought to amend their written statement to dispute the identity of the suit property. By order dated January 17, 2013 the learned Court below rejected the prayer of the petitioners to amend their written statement. As 3 mentioned earlier, it is the said order dated January 17, 2013 which is the subject matter of challenge in this revisional application.
Assailing the impugned order passed by the learned Court below, Mr. Rabindranath Mahato, learned advocate appearing for the petitioners, contended that the proposed amendment of the written statement, as prayed for by the petitioners are only formal in nature and if such amendment is allowed, no prejudice would be caused to the opposite party. Relying on the decision of the Supreme Court in the case of Sampath Kumar vs. Ayyakannu & Anr., reported in (2002) 7 SCC 559, the petitioners argued that it is settled law that a prayer for amendment of written statement to avoid multiplicity of filing of suit should be liberally allowed. According to him, the learned Court below went wrong in law in rejecting the applications of the petitioners for amendment of their written statement. In support of his contention.
Per contra, Mr. Tarak Nath Halder, learned advocate appearing for the opposite party-plaintiff strenuously contended that filing of the applications by the petitioners for amendment of their written statement is mala fide. He submitted that the petitioners motivatedly filed the applications for amendment of their written statement after a period of 13 years from the date of filing of the written statement only to stall the trial of the suit. He further submitted that when in their original written statement, the petitioners did not dispute the identity of the suit property and in the applications filed under Sections 17(1) and 17(2) of the Act of 1956 and they admitted before the learned Court below to be the tenants in respect of the suit property described in the plaint, the 4 learned Court below was absolutely correct to reject the prayer of the petitioners to amend the written statement.
I have considered the materials on record and the arguments advanced by the learned advocates appearing for the respective parties. In the present case, the ejectment suit was filed by the opposite party against the petitioners in the year 1999 and in the year 2000 the petitioners filed their written statement in the suit raising no dispute with regard to the identity of the suit property or the jurisdiction of the learned Court below to entertain the suit. In the suit the petitioners filed the applications under Sections 17(1) and 17(2) of the Act of 1956 admitting themselves to be the tenants in respect of the suit property. The petitioners are also claiming to be regularly depositing the monthly rent of the suit property with the learned Court below. Therefore, I find substance in the submission made on behalf of the opposite party that the prayer of the petitioners for amendment of their written statement, that too after a period of 13 years from the date of filing of their written statement to dispute the identity of the suit property lacks bona fide. Further, the opposite party claiming himself to be the thika tenant in respect of the suit property, filed the ejectment suit before the learned Court below for eviction of the petitioners as the bharatias, in respect of the suit property under the Act of 1981 and the said Act did not exclude the jurisdiction of the learned Court below, as the Civil Court, to entertain the instant suit. It is only of the West Bengal Thika Tenancy Act (Acquisition and Regulation) Act, 2001 (in short, "the Act of 2001") which excludes the jurisdiction of the Civil Court to entertain an ejectment suit by a thika tenannt 5 against a bharatia. Although by virtue of the provisions of Section 27 of the Act of 2001, the provisions of the Act of 1981 stands repealed with effect from March 01, 2003 but, as per Section 27(2)(d) of the Act of 2001 the learned Court below still possesses the jurisdiction to proceed with the ejectment suit against the opposite party, bharatia. Therefore, even the prayer of the petitioners for amendment of their written statement to raise an objection with regard to the jurisdiction of the learned Court below to entertain the present ejectment suit also appears to be malafide.
In the facts of the present case the decision of the Supreme Court in the case of Sampath Kumar (supra) cited has no application.
For the reasons as aforesaid, I find that the impugned order passed by the learned Court below is not vitiated by any infirmity. Accordingly, the revisional application, C.O. 792 of 2013, stands rejected with costs assessed at Rs.10,000/- (Rupees Ten Thousand only) to be paid by the petitioners to the State Legal Services Authority within June 09, 2017.
It appears that since 1999, the ejectment suit is pending disposal and, as such, the learned Court below is requested to dispose of the ejectment suit as expeditiously as possible preferably, within the month of December, 2017 without granting any unnecessary adjournment to either of the parties.
Let, this application appear under the heading "To Be Mentioned" on June 12, 2017 to ascertain whether the petitioners have deposited the above costs.6
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)