Calcutta High Court (Appellete Side)
Parimal Dey vs Anita Agarwal & Ors; on 15 May, 2015
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. 1390 of 2015
Parimal Dey
-vs-
Anita Agarwal & Ors;
With
C.O. No. 1391 of 2015
Parimal Dey
-vs-
Winsome Plaza Pvt. Ltd. & Ors.
With
C.O. No. 1410 of 2015
Parimal Dey
-vs-
Anita Agarwal & Ors.
For the petitioner : Mr. S. P. Roy Chowdhury,
: Mr. Jiban Ratan Chatterjee,
: Mr. Hiranmoy Bhattacharyya,
: Mr. Dibakar Bhattacharya,
: Mr. Sanjay Pandit,
: Mr. Sounak Bhattacharya,
: Mr. Chandra Nath Sarkar.
For the Opposite Party No. : Mr. Jayanta Kumar Mitra,
: Mr. Lal Ratan Mondal.
7 (a) in C.O. 1390 of 2015
9(a) in C.O. 1391 of 2015
8 (a) in C.O. 1410 of 2015.
For the Opposite Party nos.
1 to 4 : Mr. Sakti Nath Mukherjee,
: Mr. A. Mukherjee,
: Mr. Probal Kumar Mukherjee,
: Mr. Sabyosachi Roy Chowdhury,
: Mr. Bhaskar Mukherjee,
: Ms. Debjani Ghosh.
For the Opposite Party no. : Mr. Saptangshu Basu,
: Mr. S.N. Dutta,
: Mr. Vinay Kumar Purohit.
7 (b) in C.O. 1390 of 2015
9(b) in C.O. 1391 of 2015
8 (c) in C.O. 1410 of 2015.
Heard on : 28.04.2015 & 13.05.2015
Judgment on : 15.05.2015
HARISH TANDON, J.:
All these three revisional applications are taken up together as identical applications filed by the same party in three different suits are disposed of by three separate orders but recording the similar observations.
The petitioner filed three different suits claiming relief in the form of declaration that the purported deed of settlement executed by the admitted owner is illegal, invalid and void document and further seeks for partition of his undivided 1/14 share in the suit property described in Schedule 'A' to the plaint.
Admittedly one Ganda Sardar became the exclusive owner in respect of various plots of land comprised in Schedule 'C' to the respective plaints on the strength of a deed of partition dated November 29, 1945. Upon the death, the said admitted owner left behind him surviving his widow, Khotegan Bewa and the only son, Golap Rabbani Sardar, who inherited undivided two anna share and 14 anna share respectively. By a deed of sale dated July 26, 1948, the said Khotegan Bewa sold, transferred and conveyed her undivided two anna share in respect of the said property to her son namely Golap Rabbani Sardar who became the absolute owner of the property held by his father. Golap Rabbani executed a deed of settlement dated November 3, 1983 in favour of his two sons namely Abul Basar Sardar and Abul Kalam Sardar. Subsequently the said Golap Rabbani went for heavenly abode on August 15, 1986. Golap Rabbani married twice during his lifetime and left two sons i.e. Abul Basar Saddar and Abul Kalam Sardar and three daughters namely Taslima Bibi from his first wife and Jarina & Hasina Bibi from his second wife. By several deeds of sale executed between December 2009 and May 2010, the defendants of the respective suits acquired the right, title and interest in respect of the entire 'C' Schedule property on a valuable consideration mentioned therein.
On the backdrop of the above factual matrix, the petitioner took out an application for injunction which ultimately came up before this Court in C.O. 582/2014, C.O. 583/2014 and C.O. 584/2014 decided on 18.06.2014.
By judgment dated 18.6.2014, this Court set aside the order of the appellate Court and directed the parties to maintain status quo with regard to nature and character and possession of the suit premises as on that date till the disposal of the suit. The said judgment was carried to the Supreme Court under Article 136 of the Constitution of India and the Special Leave Petition stood dismissed on 15.9.2014.
It is relevant to record that during the pendency of the aforesaid revisional applications, the original defendant No. 7 i.e. Jarina Bibi died intestate on February 27, 2014 and an application for substitution taken out was eventually allowed. After the dismissal of the Special Leave Petition, the petitioner further took out an application for substitution of the heirs of the said deceased. It is stated in the said petition that the said deceased being issueless, the brothers and sisters are the legal heirs recognised under the Mohammedan Law and since some of the heirs are already on record except one Abdul Kalam Sardar and Rajabali Halder, they are required to be substituted in place and stead of the said deceased. Eventually, the said application stood allowed by the trial Court and the aforesaid persons were substituted as defendant No. 7A and 7B in the said suit.
After the substitution, the aforesaid heirs, who were substituted in the said suit appeared and filed the written statement together with an application for acceptance thereof. Subsequently an application under Order 1 Rule 10 of the Code of Civil Procedure is taken out by Abdul Kalam Sardar, the substituted defendant No. 7A for an order to implead him in his independent individual capacity. It is alleged that apart from the relief in the form of partition, a further relief for declaration that the deed of settlement dated 3.11.1983 is illegal, invalid and void document is also sought.
An objection to the said application was taken out by the petitioner that the substituted heirs cannot take defence contrary to the defence of the predecessor as they are bound by it. It is further alleged that the substituted defendant No. 7A is neither a necessary nor a proper party as he has no independent interest in the subject matter of litigation after having divested his right, title and interest in favour of the defendant Nos. 1 to 4. It further appears that the additional written statement was also taken out by the substituted defendant Nos. 7A and 7B together with an application for acceptance thereof taking a defence contrary to the defence of the predecessor.
The Trial Court allowed all the applications meaning thereby elevating the substituted defendant No. 7A to the category of principal defendant and accepting the written statement filed by the substituted defendants. The said order is assailed in this revisional application.
Mr. Roy Chowdhury, the learned senior advocate representing the plaintiff/petitioner submits that the substituted defendants cannot take a defence contrary to the defence taken by the principal defendant in whose place and stead they have been arraigned as the party in the said suit. He further submits that a person cannot be added as a party either in a category of the plaintiff or defendant unless he is a necessary and proper party.
To elaborate the aforesaid submissions Mr. Roy Chowdhury contends that the aforesaid substituted defendants have divested their right, title and interest in support of the suit premises and the transferees are already on record and, therefore, they do not have a direct or substantial interest in the subject property and, therefore, cannot be treated as a necessary and proper party.
To buttress the aforesaid submission Mr. Roy Chowdhury relied upon a judgement of the Supreme Court in case of Razia Begum -v- Sahebzadi Anwar Begum and others reported in AIR 1958 SC 886. Mr. Roy Chowdhury further submits that an application for addition as a defendant on an independent individual capacity was only taken out by the substituted defendant No. 7A and not by the substituted defendant No. 7B, the Trial Court ought not to have accepted the written statement filed by the substituted defendant No. 7B in the common order.
Mr. Jayanta Mitra, learned Advocate General submits that though the substituted heirs are bound by the defence of the predecessor but are not debarred from making a defence available to him personally. He further submits that the substituted defendant if have a special defence in his personal capacity and it become necessary to defend his right in relation to subject matter of the dispute, he can be treated as a principal defendant and may be allowed to take a defence to protect his right and placed reliance upon a judgment of the Supreme Court rendered in case of Jagdish Chander Chatterjee & Ors. -v- Shri Sri Kishan & another reported in (1972) 2 SCC 461.
He further submits that once a challenge is made to a deed of settlement from which his client derived his title, it constitutes the subject matter of the litigation and, therefore, it cannot be said that he has no interest in the subject dispute and is a necessary and proper party. He arduously submits that a party who is impleaded in a suit even by way of substitution has a right to file the additional written statement and any denial of such right amounts to violation of principles of natural justice as held in case of Sumtibai & Others; -v- Paras Finance Co. & Others; reported in (2007) 10 SCC 82. Lastly he submits that there is no fetter to elevate the status of a defendant from the category of the substituted defendants to a principal defendant if such defendant has an independent right to resist the claim of the plaintiff.
Mr. Sakti Nath Mukherjee, the learned Senior Advocate appearing for the opposite party nos. 1to 4 supports the impugned order in saying that the substituted defendant has a right to file the written statement to defend independent right, title and interest in the property even if, the same is adverse to the predecessor and placed reliance upon a judgment of the Supreme Court in case of Vidyawati -v- Man Mohan & Others reported in (1995) 5 SCC 431. He further submits that the judgment of the Supreme Court delivered in case of Jagdish Chander Chatterjee & Ors (supra) have been accepted and applied in a subsequent decision rendered in case of Abdul Razak & Ors; -v- Mangesh Rajaram Wagle & Ors; reported in (2010) 2 SCC 432. According to him, a legal representative of the defendant if have independent title, he can file the additional written statement taking a defence in consonance with such right even brought on record as a legal representative of the deceased defendant.
In reply, Mr. Roy Chowdhury submits that the meaningful reading of the averments made in the plaint would clearly show that it is a suit for partition and the substituted defendant having lost their right, title and interest on execution of a deed of sale in favour of the defendant nos. 1 to 4, cannot set up an inconsistent and/or contradictory defence to their predecessor even by taking out an application for amendment as held by the Division Bench of this Court in case of Kanailal Das & another -v- Jiban Kanai Das & another reported in 81 CWN 548. He thus submits that once his predecessor-in-interest could not succeed in amending her written statement, the substituted defendants cannot incorporate such defence in the additional written statement.
Mr. Saptangshu Basu, the learned Advocate for the defendant no. 7B adopts the submission of Mr. Jayanta Mitra and submits that the order should not be interfered with.
The challenge is basically founded on the assertion that the substituted defendant cannot take a defence which contrary to the defence of the deceased defendant.
The first and foremost thing which this Court feels required to be decided is whether the substituted defendant can be permitted to defend his individual title by filing the additional written statement or has to confine himself to the defence of the deceased defendant.
The aforesaid point in my view has been settled by the Supreme Court in case of Jagdish Chander Chatterjee & Ors (supra). In the said report, a suit for eviction was filed on the ground of reasonable requirement against the tenant who delivered his defence in denial of such requirement. At the second appellate stage, the tenant died and his widow and the children were brought on record as his heirs and legal representative. An argument was advanced on the definition of a tenant engrafted under Section 3 (vii) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 that since the notice as required under the said Act have not been served on the said heirs, the suit is not maintainable. It is held that once the contractual tenancy of the original tenant is determined by a notice, the heirs having recognized as a statutory tenant has only a personal right to continue the possession till evicted in accordance with the provisions of the Act. In the above perspective, it is held that the legal representative of the deceased are entitled to make any defence appropriate to his character as legal representative except those which are personal to the deceased. It is categorically held that it would still be open to the legal representative to set up their independent title, if any, in these words:
"10. Under sub-clause (ii) of Rule 4 of Order 22 of the Civil Procedure Code any person so made a party as a legal representative of the deceased, respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."
In case of Bal Kishan -v- Om Parkash & another reported in (1986) 4 155 which is again a suit for recovery of possession, the substituted heirs wanted to say that his possession is that of a trespasser and, therefore, the petition for eviction before the Rent Controller under the Rent Control Act is not maintainable.
In the above backdrop, it is held:
"It is true that it is possible for the Court in an approprite case to implead the heirs of a deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased tenant avoiding thereby a separate suit for a decision on the independent title."
What could be culled out from the above noted reports is that the substituted heirs if wanted to set up a defence on his own right, he can be brought on record as a legal representative of the deceased as well as in his personal right by way of an addition. Therefore, there is no impediment in elevating the status of a person from the category of the substituted defendants to a principal defendant for the limited purpose of defending his own right, title and interest in the subject matter of the litigation. In other words, if the right of the substituted defendant does not emanate or flow from the deceased defendant and rest upon an individual cause available to him, there is no difficulty in permitting the substituted defendant to be treated as a defendant to defend his own title. The reliance can further be conveniently made to a judgment of the Supreme Court in case of Abdul Razak (supra) wherein Jagdish Chandar (supra) & Bal Kishan (supra) were considered and held that if the legal representative has an independent defence which goes to the root of the matter, it would not be proper to foreclose such right of defence and it would be apt to quote Paragraph 28 to 33 of the said judgment which reads thus:
"28. Order 22 Rules 4(1) and (2) CPC on which reliance has been placed by learned counsel for Respondents 1 and 2 read as under:
"4. Procedure in case of death of one of several defendants or of sole defendant.--(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant."
29. In Jagdish Chander Chatterjee case this Court interpreted the above reproduced provision and held: (SCC pp. 464-65, para 10) "10. Under sub-clause (2) of Rule 4 of Order 22 of the Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."
30. In Bal Kishan case, the proposition laid down in Jagdish Chander Chatterjee case was reiterated, but its width was limited by observing that the same would apply only to those cases where the court hearing the case has jurisdiction to try the issues relating to independent title also. The facts of Bal Kishan case were that Respondent 1 therein filed a petition for eviction of the tenant by alleging that the latter had sub-let the premises without his consent. During the pendency of the petition, the tenant Musadi Lal died. Thereupon, the appellant Bal Kishan filed an application for being brought on record as legal representative of the deceased. The Rent Controller allowed the application. Thereafter, the appellant filed additional written statement asserting therein that the premises in question being residential and commercial, the legal heir of the tenant could not be treated as a tenant as defined under Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of such legal heir of the tenant would be that of a trespasser. He accordingly prayed for dismissal of the eviction petition. The Rent Controller rejected the appellant's plea and allowed the eviction petition by holding that Musadi Lal had sub-let the premises to Med Ram without his consent. The appeal and revision filed by the appellant were dismissed by the appellate authority and the High Court respectively.
31. Before this Court, the appellant relied upon the ratio of Jagdish Chander Chatterjee case and argued that he was entitled to raise an additional plea that the eviction petition was not maintainable. While rejecting this plea, this Court held: (Bal Kishan case, SCC p. 158, para
4) "4. But in the instant case the appellant cannot claim the benefit of the above decision for two reasons. First, the appellant had not been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal. Secondly, in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself. The observations made in Jagdish Chander Chatterjee case have to be confined to only those cases where the court hearing the case has jurisdiction to try the issues relating to independent title also. The Rent Controller, who had no jurisdiction to pass the decree for possession against a trespasser could not have, therefore, impleaded the appellant as a respondent to the petition for eviction in his independent capacity."
32. In Vidyawati case this Court considered the question whether a person impleaded as a legal representative of the deceased defendant can independently claim title to and interest in the property under a will. It was contended by the appellant that claim of the original defendant and that of the legal representative are founded on the will executed by Champawati and the courts below were not right in refusing to permit her to file additional written statement. While approving the view taken by the courts below, this Court observed: (SCC p. 432, para 3) "3. ... Whether the petitioner has independent right, title and interest dehors the claim of the first defendant is a matter to be gone into at a later proceeding. It is true that when the petitioner was impleaded as a party defendant, all rights under Order 22 Rule 4(2), and defences available to the deceased defendant became available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant. ... [thereafter, she could] resist the claim made by the plaintiff or challenge the decree that may be passed in the suit." For taking this view, the Court relied upon the judgments in Jagdish Chander Chatterjee case and Bal Kishan case.
33. The judgments of Bal Kishan case and Vidyawati case are clearly distinguishable. In the first case, the earlier judgment in Jagdish Chander Chatterjee case, which substantially supports the appellants was distinguished on the ground that the plea raised by the impleaded legal representative of the tenant was inconsistent with his defence and if accepted, the same would result in ouster of the jurisdiction of the Rent Controller. In the second case also, the Court found that the plea raised by the appellant, who was impleaded as legal representative of the defendant that she had independent title under the will executed by Champawati was not in consonance with the plea taken by the original defendant. However, as discussed in the earlier part of the judgment, the claim made by the appellants is in no way inconsistent with or derogatory to the defence set up by Abdul Razak. In any case, once the additional written statement filed by the appellants was taken on record without any objection by Respondents 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order 6 Rule 16 CPC and considering whether Respondents 1 and 2 were able to make out a case for exercise of power by the court under that provision.
Order 1 Rule 10 (2) of the Code of Civil Procedure empowers the Court to add or strike out the name of any person who is improperly joined as plaintiff or defendant or who ought to have been joined in such category or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settled all the questions involved in the suit. Normally the substituted heirs cannot take a defence contrary to or inconsistent with the defence of his predecessor but such rule is not free from an exception. A person can be brought on record in a dual capacity that is in a capacity of a legal representative and in his individual capacity by invoking the provision under Order 1 Rule 10 (2) of the Code. It would not be proper to relegate the legal representative to establish his individual right in a separate suit. The Court should permit such legal representative to be treated as a party not as a legal representative but in addition thereto as a principal defendant to defend his own right which was not available to the deceased, to avoid the multiplicity of the proceeding.
In the light of the law enunciated in the above reports, let me consider whether the substituted defendants have an independent right to deny the claim of the plaintiff in relation to the subject matter of the litigation.
Mr. Roy Chowdhury is not right in contending that the suit filed by his client is a suit for partition simplicitor. The averment made in the plaint and the relief claimed therein reveals that in addition to a claim of partition, a further relief in the form of declaration that the deed described in Schedule 'B' is illegal, invalid and void document is also sought. Schedule 'B' appended to the plaint pertains to a deed of settlement dated November 3, 1983 by which the property described in Schedule 'D' was bequeathed in favour of the substituted defendants by the admitted owner. According to the plaintiff, the said deed of settlement is in effect a Will and under the Muslim Personal Law, the owner cannot bequeath more than 1/3 share. The subsequent transactions were made on the basis of the purported deed of settlement and, therefore, a person who is beneficiary under the same is a necessary and proper party.
The judgment rendered by this Court in case of Kanailal Das (supra) relied upon by Mr. Roy Chowdhury has no manner of applicability in the present context as the point involved therein relates to an application for amendment of the pleading. The Division Bench of this Court laid down the principles guiding the application for amendment of the plaint as under :
"The principles established by judicial decisions in respect of amendment of plaint are as follows:-
(i) all amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible.
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegation of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment.
(iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs.
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case."
There is no quarrel to the proposition that a party cannot be allowed to amend the pleading by introducing inconsistent or contradictory allegations in negation of the admitted position provided such inconsistent plea is in tune of the admitted position. Admittedly in the instant case, an application for amendment of the written statement filed by the deceased defendant had been rejected by the Trial Court and the said order is not the subject matter in these reivisional applications.
The point involved herein is whether the legal representative is bound by the written statement filed by the predecessor or he has an additional right to make a defence based on his personal right in relation to the subject matter of dispute. It is no longer res integra that person cannot be added as a party unless he has a direct and substantial interest in the subject matter of the litigation as held in case of Razia Begum (supra). In the present case, the substituted defendants founded their title on the strength of the purported deed of settlement which is impugned in the suit and, therefore, they can defend such right emanating from the said deed independently even having brought as a legal representative of the deceased defendant.
There is no hesitation to permit them to file an additional written statement based on their own right. This Court, therefore, does not find any infirmity and/or ambiguity in the impugned order.
The revisional applications fail.
However, there shall be no order as to costs.
(Harish Tandon, J.)