Calcutta High Court
Shrimati Mukta Bala Dhara & Ors. vs The Chairman, Zilla Parishad, Howrah & ... on 28 July, 2001
Equivalent citations: (2001)2CALLT350(HC)
Author: S.K. Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT
S.K. Mukherjee. J.
1. Title Suit No. 312 of 1979 was instituted in the Court of the learned Munsif at Uluberia, District: Howrah by the predecessor-in-interest of the plaintiffs/appellants, Ashutosh Dhara, for a declaration that he was a permanent lessee in respect of suit property and for permanent injunction restraining the defendants and their agents or employees from invading the possession of the said plaintiff.
2. In the said suit the Chairman, Zilla Parishad, Howrah, the Executive Officer, Zilla Parishad, Howrah and the District Engineer, Zila Parishad, Howrah were impleaded as defendants. Although summons of the suit were duly served on the defendants and although several adjournments were obtained by them for filing written statement, ultimately, the defendants failed to file written statement and on August 19, 1980 the suit was taken up for ex-parte hearing.
3. By the judgment and decree dated August 19, 1980, the learned Munsif, on the basis of unchallenged oral testimony of the plaintiffs witness No. 1, decreed the suit ex-parte with cost. It was declared that the original plaintiff was a permanent lessee in respect of the suit property and the defendants were restrained from interfering with his possession in respect thereof in any manner whatsoever.
4. The Chairman (Sabhadhipati), Zilla Parishad, Howrah preferred Title Appeal No. 203 of 1960, which was eventually transferred to the Court of the learned Additional District Judge, Second Court at Howrah, District: Howrah. The learned Additional District Judge by the judgment and decree allowed the appeal and set aside the judgment and decree of the learned trial judge and dismissed the suit. The learned judge in the lower appellate Court held that under section 140(4) of the West Bengal Panchayat Act, 1973 it was incumbent to sue the Zilla Parishad in its corporate name and as the plaintiff has filed the suit against some of the office bearers claiming relief primarily against the Zilla Parishad, the suit as framed was not maintainable.
5. Although no substantial question of law was framed at the time of hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure. Mr. Debaprasad Mukherjee (11), learned Advocate, appearing in support of the appeal, framed the following substantial question of law at the hearing of the appeal.
6. Whether the learned judge in the lower appellate Court was justified in dismissing the suit on the ground that it was incumbent on the part of the plaintiff to sue Zilla Parishad, Howrah as contemplated under section 140(4) of the West Bengal Panchayet Act. 1973 or the learned judge ought to have granted opportunities to the plaintiff to cure the defect?
7. It is to be noted here that in this appeal Zilla Parishad, Howrah has been added as a party respondent.
8. It is true that under section 140(4) of the West Bengal Panchayet Act 1973, it is provided that every Zilla Parishad should be a body corporate having perpetual succession and a common seal and should by its corporate name sue and be sued. In spite of the aforesaid clear language of the provisions of the said Act, the plaintiff instituted the suit against the Chairman, the Executive Officer and the District Engineer, Although summons of the suit were duly served in the office of the Zilla Parishad, no one appeared at the hearing of the suit to contest the claim of the plaintiff. Admittedly, the Zilla Parishad Authorities were aware that the Plaintiff has instituted the suit against its officers, but even those officers did not contest the suit. Only at the appeal stage the ex-parte judgment was challenged claiming that the suit was not maintainable in the absence of the Zilla Parishad, Howrah.
9. The conduct of the Zilla Parishad and it officers were, also not good. The objection on the ground of non-joinder of the necessary party ought to have been taken at the earliest opportunity. The said objection was available to the defendants at the stage of filing of the written statement. In the case in hand, defendants did not take such objection even before the settlement of the issues. This is a case of misdescription and no prejudice has at all been caused to Zilla Parishad. The lower appellate Court should not have dismissed the suit in the appeal stage by reason of non-joinder of party. The Court has always the power to implead necessary party at any stage to render full justice to parties in the circumstances stated in Order 1, Rule 10 of the Code of Civil Procedure.
10. I, accordingly, allow this appeal, set aside the judgment and decrees passed by the Courts below and remit Title Suit No. 312 of 1979 in the trial Court and grant liberty, as prayed for, by the plaintiffs, to add Zilla Parishad, Howrah as a party defendant in the suit. Such application for amendment is to be filed within a month from the date of receipt of the lower Courts' records by the trial Court, The learned Judge in the trial Court is directed to allow the application and permit addition of Zilla Parishad, Howrah as a party defendant in the suit and, thereafter, will decide the suit in accordance with law after giving opportunities of hearing to the parties.
11. For securing compliance of this order of remand, I direct the part ies including the added respondent to appear before the learned trial judge on August 20, 2001 and direct the office of this Court to remit the lower Court's records along with a copy of this judgment to the learned trial judge by the said time by a special messenger at the cost of the appellant. Such cost is to be put in within one week.
There will be no order as to costs.
Let urgent xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.
12. Appeal allowed