Atanu Basak vs Sghiba Prosad Mukherjee

Subrata Talukdar, J. - In this application under Article 227 of the Constitution of India under challenge is the order impugned dated 7th September, 2015 passed by the Ld. 2nd Civil Court (Senior Division) at Alipore in Title Suit No. 6 of 2015 (hereinafter referred to respectively as the Ld. Trial Court and the said suit).

The opposite party No. 1 (OP1) is the plaintiff in the suit. The present petitioner is the added defendant No. 4 (for short referred to only as D4) in the suit.

The suit which initially bore the filing No. 63/1988 before the then Ld. 4th Assistant District Judge at Alipore and subsequently renumbered as Title Suit 6 of 2015, is for ejectment of three tenants namely, (i) Sushil Chandra Basak; (ii) Subhas Chandra Basak; and (iii) Suresh Chandra Basak from the suit property comprising the entire roof, 2nd Floor and Ground Floor of 136 Harish Mukherjee Road (hereinafter referred to only as the suit property). By the order impugned dated 7th September, 2015 in the present application, the sole question considered by the Ld. Trial Court and, such question is also the central issue in this application, is whether the claim of the present petitioner before the Ld. Trial Court to determine first whether the suit has abated or not and, alternatively the determination arrived at by the Ld. Trial Court that the issue of abatement should be heard along with the hearing of the main suit is a correct proposition of law.

It would be necessary to give a brief background to the facts. The three original tenants as named above, being the defendant Nos. 1, 2 and 3 in the suit having died, the present petitioner/D4 claiming to the legal heir and representative of one Sukumar Basak, also deceased, intervened in the suit by filing an application under Order 1, Rule 10 of the Code of Civil Procedure (CPC). Such application for adding the petitioner as defendant No. 4 to the suit was allowed by the Ld. Trial Court and the defendant No. 4 subsequently filed a written statement both to the original as well as the amended plaint.

It is further contended by the present petitioner that upon the death of the defendant No. 1, his legal heir and successors were substituted in the following manner namely:-- Smt. Lilabati Basak (widow), Ashoke Basak (son) and Tapan Kumar Basak (son). However, no summons were issued upon the substituted defendants.

It is further contended by the present petitioner that even the substituted defendants died and the last such death of the substituted defendant No. 1 (b) Ashoke Basak took place on 6th August, 2003. The present petitioner therefore alleges that all the defendants having died during the pendency of the suit -the defendant No. 2, Subhas Chandra Basak on 12th December, 2000 and the defendant No. 3, Suresh Chandra Basak on 16th April, 1993, no steps were taken by the plaintiff-OP1 to substitute their legal heir in the suit.

It is pleaded by the present petitioner that in spite of several orders passed by the Ld. Trial Court between 11th May, 2001 to 20th March, 2003 directing the plaintiff-OP1 to carry out substitution of the legal heirs of the defendants and further, in spite of a specific order dated 6th February, 2006 being order No. 121 directing that in the event substitution is not effected, legal consequences shall follow, the suit was kept pending without a defendant.

Sri Surojit Samanta, Ld. Counsel appearing for the present petitioner/D4 argues that in order to circumvent the consequence of abatement of the suit for not having substituted the legal heirs of the deceased defendants, an amendment application filed by the plaintiff-OP1 was allowed by the order of the Ld. Trial Court dated 20th February, 2007. The present petitioner then made a prayer for recalling the order dated 20th February, 2007 which was rejected by order dated 4th May, 2007.

The order of rejection dated 4th May, 2007 was challenged before this Hon''ble Court by way of an application under Article 227 of the Constitution of India registered as CO 2429 of 2007. By order dated 30th January, 2008 an Hon''ble Single Bench of this Court was pleased to, inter alia, hold as follows:--

"Upon perusing the records of the instant case I find that the suit has been pending before the learned court below for around twenty years and in the intervening period parties have been added as defendants, one such being the added defendant No. 4, being the petitioner herein. The defendant No. 4 was added as a party to the suit by an order dated 24th June, 2003, which was passed on consent.

From the impugned order dated 20th February, 2007, it appears that the learned court below while allowing the application for amendment under Order 6, Rule 17 of the Code of Civil Procedure, permitted the said defendant No. 4 to file additional written statement. So far as the latter part of that order is concerned, as well as the subsequent order dated 4th May, 2007, being the other order impugned, I am of the view that it was entirely for the court to decide whether the suit stood abated, as has been contended before this Court by the learned advocate representing the added defendant No. 4.

It may not be out of place to take note of the fact that in the original cause title of the plaint, the defendant No. 1 has been described, as follows:--

I, Shri Sushil Chandra Basak, son of late Satish Chandra Basak, for self and as representing the estate of late Satish Chandra Basak and heirs of late Subodh Chandra Basak and late Sukumar Chandra Basak of 136, Harish Mukherjee Road, P.S. Bowanipore, Calcutta 700 025 and 186B, Rashbehari Avenue, P.S. Gariahat, Calcutta 700 019.

What is to be needed to be noticed is that at the time of institution of the suit, only Shri Sushil Chandra Basak, Shri Subhas Chandra Basak and Shri Suresh Chandra Basak were named as the original defendants. In fact, the original defendant No. 1 Shri Suchil Chandra Basak was said to represent the heirs of late Sukumar Chandra Basak. The added defendant No. 4 claims to be one of the legal heirs and representatives of late Sukumar Chandra Basak. The issue sought to be raised in the present application by the added defendant No. 4, being the petitioner herein, requires adjudication in respect of the nature and character of the tenancy, which in my opinion is a matter to be finally decided by the learned court below at the time of final hearing of the suit, which is a suit for ejectment and recovery of possession and for mesne profits.

This being the position, I have no doubt in my mind that the two orders impugned does not suffer from any apparent error of law or palpable infirmity of reasoning, which would warrant interference of this Court in exercise of its power under Article 227 of the Constitution of India.

However, I am of the opinion that the learned court below may be directed to expedite hearing and disposal of the suit of 1988. For the said purpose, I direct the learned court below to hear out and dispose of Title Suit 63 of 1988, preferably within a period of eight months, but not later than twelve months from the date of communication of this order, without granting on necessary adjournments to any of the parties, even on consent.

The defendant No. 4, being the petitioner herein, shall be at liberty to file his additional written statement before the learned court below, within thirty days from date. I make it clear that the observations made herein, while disposing of the instant application, shall not influence the learned court below at the time of final hearing of the suit and the same shall be decided by the learned trial court on its own merit."

The special leave petition filed by the present petitioner against the order dated 30th January, 2008 stood dismissed.

Pursuant to the direction contained in the solemn order dated 30th January, 2008 the plaintiff-OP1 filed an application for local inspection under Order 39, Rule 7 CPC. Sri Samanta argues that such application for inspection filed by the plaintiff-OP1 was intended to only keep alive a dead suit since, consequent to the death of the principal defendants and, not taking of steps against the substituted defendant Nos. 1(a), 1(b) and 1(c), there were in effect no defendants to the suit.

The application for local inspection under Order 39, Rule 7 CPC having been allowed on 10th July, 2009 the same was again challenged by the present petitioner by way of a second application under Article 227 of the Constitution of India which was registered as CO 2590 of 2009. By order dated 13th January, 2010 the Hon''ble Single Bench was pleased to reiterate its conclusions made in its judgment dated 30th January, 2008 in CO 2429 of 2007 and, while so reiterating was pleased to further observe as follows:--

"The judgment and order dated 30th April, 2008, thus, makes the position clear so far as the issue of abatement is concerned, which is sought to be raised once again in the instant application by the petition herein. So far as allowing the prayer of the plaintiff for local inspection under Order 39, Rule 7 of the C.P.C. is concerned, it is well-settled that in a suit for eviction filed on the ground of reasonable requirement, the plaintiff has to prove that he requires the suit premises for his own use and occupation as he is not in possession of any reasonable suitable accommodation. It is also well-settled that to prove that the plaintiff is not in possession of any reasonable suitable accommodation, it would be necessary to find out the extent of the present accommodation of the plaintiff by local inspection. This has been the settled position in law and this is what has been reiterated by a Single Bench of this court in Amar Singh Sini (supra).

Based on a broad conspectus of what has been discussed herein above, I am of the opinion that the impugned order cannot be said to be suffering from any apparent or gross error of law or such palpable infirmity of reasoning which would warrant interference of this court in exercise of its power under Article 227 of the Constitution of India.

Having observed as above, however, I am of the view that dismissal of the instant application cannot stand in the way of the petitioner herein to have the point of abatement of suit finally adjudicated upon by the learned court below, in terms of the judgment and order dated 30th April, 2008, passed by this court in C.O. No. 2429/07, which still remains in force. The dismissal of the instant application shall also not cause prejudice to the rights of the petitioner in any manner and it shall be open to the petitioner to take all points available in law before the learned court below. It appears that the time-frame indicated in the judgment and order dated 30th April, 2008 passed in C.O. No. 2429/07 has already expired, but the suit is yet to be disposed of. For the interest of justice, the same shall stand extended in the manner indicated below.

The learned court below shall hear out and dispose of the Title Suit No. 63/88, preferably within a period of six months, but not later than eight months from the date of communication of this order without granting unnecessary adjournments to the parties.

The instant application stands dismissed, subject to the observations made herein above."

The present petitioner takes comfort in the fact that by its second judgment and order in CO 2590 of 2009 dated 13th January, 2010 the Hon''ble Single Bench was pleased to, inter alia, observe that the dismissal of CO 2590 of 2009 on the plank of the observations made in the order dated 30th January, 2008 in CO 2429 of 2007 shall not prejudice the rights of the present petitioner in any manner and it shall be open to the present petitioner to take all points available in law before the Ld. Trial Court. Therefore, on the strength of the above noted observations in CO 2590 of 2009 the present petitioner submitted an application on 15th July, 2011 before the Ld. Trial Court for hearing the issue of abatement of the suit in terms of the directions of the Hon''ble Single Bench dated 30th January, 2008 and 13th January, 2010. The alternate prayer made before the Ld. Trial Court was to refer the matter before this Hon''ble Court under Section 113 CPC.

By the order impugned the Ld. Trial Court was pleased to, inter alia, observe and hold as follows:--

"The issue whether suit is abated or not has not been framed and the plaintiff never disputed the said issue which clearly indicates that the issue of abatement should not be heard along with the suit as the issues are framed exclude the issue as to the abatement of the suit. Order 14, Rule 5 of C.P.C. says that framing of issues is the first hearing of the suit i.e. The hearing of the suit starts from framing of issues and ends at the conclusion of evidence and that time from issue to evidence is called final hearing of the suit. The final hearing of the suit should not be confused with the final disposal. The final disposal of the suit has been termed as judgment, decree and cost. Hon''ble court is very specific to the point that the said issue be disposed of before judgment. The proceeding of suit after abatement is nothing but contrary to laws. It is settled principle of law that the parties to the suit should not bear unnecessary litigation cost.

Ld. Adv for the plaintiff has placed the argument that intervener/petitioner has become a party in terms of his application under Order 1, Rule 10 of CPC filed on 24.06.2003. subsequent to the filling of the application, there have been at least 8-10 applications, if r4 of CPC categorically stating to the effect that one Satish Ch. Basak was a bona fide Tenant, after his demise 5 sons inherited the said tenancy. The defendant claims to be residing in the schedule premises and has claimed the inheritance of tenancy right. He intends to say that he was never impleaded as a party but upon his own application, he intervened in the suit and became a party as defendant. The defendant intended to seek for a direction upon the plaintiff was allowed. The Hon''ble court found no reason to recall the order dt: 20.02.2007 and rejected the application. It is an admitted situation no special leave petition was preferred against the order of Hon''ble High Court dt: 30.04.2008 and thus the said order has become otherwise final. It is most respectfully submitted that no revisional application has been taken out as against order no: 23, 26 & 121 and therefore the question of abatement does not arise.

Ld. Advocate for the petitioner submits that at present there is no representation as defendant. Plaintiff filed this suit against some defendants after death the suit running without defendant. The plaintiff has not complied the provision of law by adding party after the death of defendants. He further draws the attention of the court to the orders. During hearing he submits that final hearing starts from the stage of framing of issue. There is no question of keeping the instant petition untouched at this stage and to dispose the same at the time of passing judgment. The instant petition is to be disposed at this stage as Hon''ble court has directed to dispose during final hearing. He submits regarding the definition of final hearing by saying that the period in between the framing of issue and passing judgment.

Ld. Advocate for the plaintiff submits that the question under the provision of section 113 of the civil procedure code, is in between the court and the petitioner. He submits to expedite the suit by rejecting the instant petition. Hon''ble court has already directed dispose the suit. The instant petition has no merit at all. The same has been filed with an intention to delay the suit. The instant petition has been filed just to create a confusion. Due to delay the plaintiff is not getting justice. In reply he draws the attention to the orders.

Heard both sides, the records speaks that the petitioner has appeared in this suit through an application under Order 1, Rule 10 (2) of the civil procedure code.

Here in this suit issues are already framed, which is the first hearing which is either for the settlement of the issues or for final hearing. Order 14, Rule 1 of the civil procedure code speaks about the framing of issues --- Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The stage under provision Order 10, Rule 1 of the CPC is to ascertainment whether allegation in pleadings are admitted or denied. Here in this case WS has been filed stating the denial. Order 10, Rule 2 of the CPC is the provision when court to pronounce judgment on all issues --- (1) notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Here in this case the stage for the same is already over."

Sri Samanta argues that by order impugned dated 7th September, 2015 (supra) the Ld. Trial Court has not at all first considered the issue whether the suit has abated as a whole. Sri Samanta points out that the Ld. Trial Court was pleased to fix the suit for pronouncement of judgment on all issues, including abatement and, in such circumstances the impugned judgment dated 7th September, 2015 is legally not tenable. In support of his arguments Sri Samanta relies upon the judgment of the Hon''ble Apex Court reported in AIR 2008 SC 2866 at Paragraphs 10 & 11 in the matter of Jaladi Suguna (Dead) through L.Rs. v. Satya Sal Central Trust & Ors. wherein the Hon''ble Apex Court held as follows:--

"10. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22, Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-`-vis other rival claimants to the estate of the deceased.

The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record."

Sri Samanta argues that the important point which the Ld. Trial Court ought not to have missed is whether the suit could have been allowed to proceed in the absence of any legal representative of the deceased defendants.

Per contra, Sri Shaktinath Mukherjee, Ld. Senior Counsel appearing for the opposite party No. 1 argues that the suit for eviction was filed in 1988 under a special statute that is the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act). Drawing the attention of this Court to the definition of a ''tenant'' under Section 2(h) of the 1956 Act, Sri Mukherjee submits that it requires to be examined in the suit whether the tenants remaining in possession after termination of the original tenancies can be considered to be the legal heirs and representatives of the deceased defendants-original tenants.

Section 2(h) of the 1956 Act reads as follows:--

"(2h) "tenant" includes any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be, payable and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom a decree for eviction has been made by a court of competent jurisdiction."

Sri Mukherjee further argues that the Ld. Trial Court has not rejected the prayer of the present petitioner on the issue of abatement. Following the judgment and order of the Hon''ble Single Benches dated 30th January, 2008 and 13th January, 2010, the Ld. Trial Court has only clubbed the issue of abatement along with the final hearing of the suit. Whether the suit has abated under the 1956 Act flows from the definition of tenant and it is to be considered on evidence with regard to the identity of the present persons stepping into the tenancies and, whether such persons are entitled to be substituted in place and in stead of the original defendants-tenants.

Sri Mukherjee points out that if a person is not qualified to be a tenant residing at the suit premises under Section 2(h) of the 1956 Act, there is no requirement for substitution. In the above premises the Ld. Trial Court did not commit any illegality by placing the issue of abatement for consideration with other issues on the ground that it requires to be ascertained whether the present petitioner qualifies to be a legal tenant under Section 2(h) of the 1956 Act for stepping into the shoes of the deceased defendants.

In support of his submission Sri Mukherjee relies upon the judgment reported in AIR 1970 SC 1468 at Paragraph 9 in the matter of Khushro S. Gandhi & Ors. v. N.A. Guzder (dead) by his legal representatives & Ors., which reads as follows:--

"9. The learned counsel for the appellants contends before us that the decide issue No. 5 in a revision. He says that the subject-matter of the revision was the order of the Civil Judge dated November, 28, 1956, and the High Court could not decide any other point and convert itself into an original court. The learned counsel for the respondents tried to justify the decision regarding jurisdiction of the High Court under Section 24, C. P.C. This section, inter alia, provides that the High Court may withdraw any suit, appeal or other proceeding pending in any court subordinate to it and try and dispose of the same. We are unable to appreciate how the order of the learned Judge can be justified under Section 24. He has not purported to withdraw any suit and try the same. What he has done is to try an issue arising in a suit in a revision arising out of an interlocutory order. It seems to us that the High Court, even if the parties conceded, had no power to decide the issue. But if we set aside the order of the High Court and remit the case to the Civil Judge to try it according to law, the Civil Judge would feel handicapped in deciding the case properly because he will feel bound to follow the opinion given by the learned Judge on issue No. 5. Under the circumstances we heard arguments on the issue."

Having heard the parties and considering the materials on record this Court arrives at the following findings :-

A) Noticing the application of the present petitioner/D4 for being added as a defendant to the suit under Order 1, Rule 10 CPC this Court finds the following averments:--

"3. That the applicant resides in the scheduled premises and after the demise of his father Sukumar Basak, the applicant has also inherited the tenancy right in respect of the scheduled premises.

That neither nay notice was ever served upon your petitioner nor your petitioner was impleaded as a party in this suit but only the name of the deceased father of your petitioner was mentioned in the cause title of the plaint by the plaintiff in a tricky way with an oblique motive.

that being one of the bona fide tenants of the scheduled premises and a resident therein, your petitioner''s interest is directly involved in this matter, as such your petitioner is one of the necessary and proper party of this suit and without giving him opportunity to contest in this suit by adding him as a party, the suit can not be adjudicated properly according to law.

That by virtue of this legal status, your petitioner ought to have been added as a defendant in this suit to get the opportunity of being heard on merit and to contest in this suit for the interest of justice otherwise your petitioner will be highly prejudiced and will suffer irreparable loss and injury."

B) This Court is thereafter required to notice the averments made in the written statement filed on behalf of the present petitioner to the plaint which run as follows :-

"5. That the suit has been filed in total disregard to the actual area of tenancy as well as by splitting up the tenancy of the defendants most illegally by giving wrong description thereof for wrongful gain and to mislead the Ld. Court making the suit prima facie not maintainable. The plaintiff has no cause of action against the defendants to file this suit and further the suit is also bad for non-joinder of necessary parties as well as has been abated also and therefore is liable to be dismissed.

That in support of his above contention, this defendant states that one Satish Chandra Basak, since deceased was a lawful tenant (hereinafter called the ''original tenant'') in respect of three bed-rooms, one kitchen, one privy and two bath-rooms in the ground floor and three bed-rooms, one tin shed room for store, one tin shod bathroom and one privy on the second floor and entire roof at the premises No. 136, Harish Mukherjee Road, Calcutta-700025, P.S. Bhowanipur, presently P.S. Kalighat, (hereinafter collectively referred to as the ''Tenanted Premises'') at a monthly rental of Rs. 65/- (Rupees sixty five only) payable according to English Calender month. The said deceased came in occupation in the aforesaid tenanted premises with his family in month of November, 1942 and had been seized and possessed thereof as a bona fide tenant therein and after his demise on 28.2.1943 as an intestate, his five sons namely Sushil Chandra Basak, Subodh Chandra Basak, Suresh Chandra Basak, Subhas Chandra Basak, and Sukumar Basak and the widow wife Kusum Kamini Basak, as his heirs and heiress under the Dayabhaga School of Hindu Law, jointly inherited the said tenancy right from the deceased Satish Chandra Basak accordingly to law.

Thereafter the said five sons and the widow wife of the deceased Satish Chandra Basak has been occupying and possessing the above mentioned tenanted premises as of their right and interest by way of inheritance and became the joint tenant of the same.

The widow wife Kusum Kamini Basak died intestate on 28.12.1982 and her five sons named above had been occupying and possessing the said tenanted premises jointly with their family. Thereafter one of the sons Sukumar Basak died intestate on 6.8.84 leaving behind him the wife, daughter and son to inherit his joint tenancy right in the tenanted premises jointly according to law. The widow of the said deceased and the daughter also died intestate in the meantime on 16.3.2001 and 28.8.1993 respectively and the said daughter is survived by her heirs and successors to inherit her joint tenancy right in the tenanted premises jointly according to law.

Thereafter another son Subodh Chandra Basak died intestate on 25.11.1986 leaving behind him the heirs and successors to inherit his joint tenancy right in the tenanted premises jointly according to law and subsequently the widow of late Subodh Ch. Basak also died intestate on 20.2.1991. The daughter of late Subodh Ch. Basak also died intestate on 28.10.2004 leaving behind her heirs and successor to inherit her joint tenancy right in the tenanted premises, according to law.

Thereafter another son Sushil Chandra Basak died intestate on 23.11.1989 leaving behind him the wife Lilabati Basak and two sons Ashok Kr. Basak and Tapan Mr. Basak to inherit his joint tenancy right in the tenanted premises jointly according to law, though in the meantime all the said three successors died intestate on 26.5.2000, 6.8.2003 and 19.11.1997 respectively leaving behind their heirs and successors to inherit their respective joint tenancy right in the tenanted premises jointly according to law.

Thereafter another son Suresh Chandra Basak died intestate on 16.4.1993 leaving behind him the heirs and successors to inherit his joint tenancy right in the tenanted premises jointly according to law and subsequently the widow of late Suresh Ch. Basak also died intestate on 10.3.1998, leaving behind her heirs and successors to inherit her joint tenancy right in the tenanted premises according to law.

It is evident from the plaint that necessary parties were not impleaded in the suit as well as the legal heirs and successors of the deceased parties were also not substituted in the suit and therefore the above suit is bad for non-joinder of necessary parties and/or the suit has been abated making the same liable to be dismissed.

In this context be it also mentioned here that the extent of tenancy as mentioned herein above and collectively referred to as the ''Tenanted Premises'' is the same with that of the tenanted premises as mentioned and admitted in a number of letters sent on behalf of as well as by one of the Vondors of the plaintiff - the erstwhile landlords of the premises addressed to the predecessors-in-interest of this added defendant and said tenanted premises was under occupation and possession of the original tenant since November, 1942 and thereafter of the legal heirs and successors of the original tenant i.e. the predecessors-in-interest of this added defendant against payment of rent regularly as a single unit of tenancy and still now the said tenanted premises is under occupation and possession of the legal heirs and successors of the above mentioned five sons of the deceased Satish Ch. Basak against payment of rent regularly. The plaintiff intentionally, purposefully and motivatedly has split up the tenanted premises into two halves by reducing the area of tenancy in the plaint as the alleged ''A'' Schedule property most illegally for wrongful gain as well as added one imaginary place in the alleged ''B'' Schedule property under the term ''garage'' with a sinister design and also added the stair case therein with an evil motive knowing fully well that the same is exclusively ment for going only to the tenancy of the defendants on the second floor and roof from the ground floor leading only through the tenancy of the defendants in the ground floor as a separate stair case, exclusively ment for the defendants since the very inception of the tenancy, making the schedule absolutely wrong, inaccurate and defective and hence, the suit is not maintainable at all and liable to be rejected."

C) From the additional written statement filed on behalf of the present petitioner it transpires that for the first time the present petitioner took the plea that steps were not taken by the plaintiff-OP1 to substitute the deceased defendants. At Paragraph 11 of the additional written statement the present petitioner pleads as follows :-

"11. That this defendant No. 4 also states that he inherited a very small fraction of the joint and undivided tenancy right and interest in the suit premises from his father Sukumar Basak, since deceased, well prior to the institution of this suit and also became a tenant-in-common though he was not impleaded in this suit in the beginning. Thereafter to protect his said right and interest this defendant made an application under Order 1, Rule 10 of C.P. Code in his personal capacity to be added as party defendant whereupon on the basis of consent given by the plaintiff, he has been added as a party defendant in this suit. Due to such legal status of this defendant having only a very small fraction of the joint and undivided tenancy right and interest in the suit premises, no decree can be passed against him according to law and the suit is also not maintainable and liable to be dismissed."

At Paragraphs 15, 16 & 17 of the additional written statement the present petitioner discusses the requirement of accommodation of the plaintiff-OP1 as follows:--

"15. That in reply to paragraph No. 5(c) of the amended plaint, this defendant states that he is not aware about the activities of the son of the plaintiff and the contention of the plaintiff in this regard is misconceived and speculative. The accommodation available to the plaintiff at his residence in the ground floor is sufficient and more than enough for his legal work. It is denied that the plaintiff needs at least 2/3 more rooms to accommodate his clients and also his junior colleagues to have a congenial atmosphere in the matter of his profession and to accommodate all his respectable clients which include multinational companies as also companies of very high stature including persons having say in the society as falsely alleged. It is denied that the anti-room besides the chamber where the plaintiff interacts with his clients can not be used by the plaintiff or his clients because he has to accommodate his other colleagues who work with him and help in their official capacity as falsely alleged. His defendant does not know whether there is any clerk of the plaintiff and the plaintiff is ... to the strict proof thereof. This defendant is not aware about the juniors of the plaintiff and/or their number. But it is palpably clear that the present accommodation in the ground floor of the plaintiff''s residence is sufficient for his all sorts of official work and associated thereto related to his practise as well as other purpose for his family. It is denied that the said four rooms available in the ground floor of premises No. 31, Gobinda Ghosal Lane are not otherwise sufficient for his professional purposes as falsely alleged. The contention of the plaintiff regarding his son is misconceived and speculative. It is denied that the son of the plaintiff would also be joining the profession as an Advocate and he would also need at least four rooms as his chamber and the other flat would also be required for residential purposes in the said property as falsely alleged. This contention of the plaintiff is a speculative one. The plaintiff is put to the strict proof thereof regarding his contention and alleged requirement made in the said paragraph of the amended plaint.

That in reply to paragraph No. 5(d) of the amended plaint, this defendant denies that is so far as the accommodation was available the 1st floor is concerned where there are four room, it has become practically impossible to accommodate the son and daughter of the plaintiff as falsely alleged. The accommodation available on the first floor is sufficient as separate accommodation of the son and daughter of the plaintiff. The contention of the plaintiff regarding the marriage and separate accommodation of his son ..... misconceived one and speculative and hence denied. The plaintiff is put to the strict proof thereof regarding his contention made in the said paragraph of the amended plaint.

That in reply to paragraph No. 5(e) of the amended plaint, this defendant states that the residential accommodation available to the plaintiff and his family on the first floor of his residential premises is sufficient to accommodate them in all respect meeting all their requirements reasonable. It is denied that the plaintiff therefore requires in so far as the residential accommodation is concerned a comprehensive drawing room for himself, a bed room for himself and his wife, a drawing room for his daughter, a separate bed room for the daughter and also needs a guest room as falsely alleged. The alleged requirement of the plaintiff and his family for their residential accommodation as depicted in that paragraph is totally false and motivated and hence denied and further the plaintiff is put to the strict proof thereof."

The above noted averments of the present petitioner must now be read in the context of the prayer made by him in his application under Section 151 CPC from which it is all too apparent that the present petitioner urges the Ld. Trial Court to take notice of the judgment of the Hon''ble Apex Court for deciding the issue of abatement in terms of the law laid down in AIR 2008 SC 2866 (supra). The prayer in the above noted application under Section 151 CPC reads as follows:--

"In the circumstances it is humbly prayed that your Honour would be graciously pleased to hear the issue of abatement of the suit as directed by the Hon''ble Court in order dated in order dated 13th January, 2010 directing this Learned Court to comply with the said decision dated 5th May, 2008 of the Supreme Court of India, the law of the land decided by it, and/or to refer "the issue of time to decide the question of abatement" to the Hon''ble High Court at Calcutta U/S 113 of the Code of Civil Procedure and to pass such other order or orders as may deem fit and proper."

D) From a conjoint reading of the stand taken by the present petitioner in his application under Order 1, Rule 10 CPC, written statement and additional written statement with the observations made by the Hon''ble Apex Court in AIR 2008 SC 2866 (supra), this Court notices that the Hon''ble Apex Court was of the view that the Ld. Trial Court should ascertain whether a person is entitled to claim to be a legal representative of the deceased respondent-defendant and, in the event such an application is made or such legal representative is required to be made a party, then proceed with the suit. At both Paragraphs 10 & 11 relied upon by Sri Samanta, the onus lay on the Ld. Trial Court to first consider whether the person desiring to claim to be the legal representative of the deceased has the right of representation of such estate. Thereafter such person be brought on record preparatory to hearing of the suit or appeal on merits, as the case may be.

E) The Hon''ble Single Bench vide it order dated 30th of January, 2008 and 13th of January, 2010 was pleased to discuss the status of the present petitioner who claims to be a legal heir of the Late Sukumar Basak and, the original defendant No. 1, Sushil Chandra Basak was said to represent the heirs of the Late Sukumar Basak. Therefore, the Hon''ble Single Bench was pleased to, inter alia, hold that the issue of abatement being raised by the present petitioner requires to be adjudicated qua the nature and character of the tenancy to be finally decided by the Ld. Trial Court.

F) On a further conjoint reading of all the observations made by the Hon''ble Apex Court and the Hon''ble Single Bench (supra), this Court is of the considered view that the question of abatement is closely linked to the character of the tenancy claimed to be enjoyed by the present petitioner. It is explicit in the pleadings in the application under Order 1, Rule 10 CPC and the written statement filed by the present petitioner that the present petitioner has taken the point of being excluded as a party defendant to the suit since, according to the present petitioner, he enjoys moiety tenancy in the suit premises. Further from the pleadings in the application under Order 1, Rule 10 CPC and the written statement (supra), the present petitioner pleads on the structure of the tenancy and the defects in the impleadment in the suit of all the tenants as well as the description of the tenanted premises.

For the first time in his additional written statement the present petitioner takes the point of abatement without seeking to sacrifice his stand in any of his pleadings under Order 1, Rule 10 CPC and the written statement (supra) read with the additional point that the plaintiff-OP1 is not in requirement of any accommodation.

G) Therefore, to the mind of this Court the Ld. Trial Court did not commit any illegality in following the proposition laid down by the Hon''ble Apex Court in AIR 2008 SC 3866 as well as the Hon''ble Single Bench in its judgment and order dated 30th January, 2008 and 13th January, 2010 that on the own showing of the present petitioner-defendant No. 4 the legal character of the tenancy requires to be examined and, such legal character cannot be examined without touching on all the surrounding issues connected to the main suit.

In the further opinion of this Court on the self-declared stand of the defendant No. 4 that he is moiety tenant in the suit premises read with the steps taken by the present petitioner in the suit declaring his substantive interest, the Ld. Trial Court could not have allowed any approbation and reprobation of such stand on a mere claim to abatement upon efflux of time without addressing itself on the details of the survivorship of the tenancy, if any.

H) In this connection this Court finds substance in Sri Mukherjee''s submission that the survivorship of the tenancy, if any, must be read in the context of the definition of a tenant under Section 2(h) of the 1956 Act (supra).

I) This Court is also persuaded to hold that the challenge to the order of the Hon''ble Single Bench dated 30th January, 2008 in CO 2429 of 2007 having been dismissed up to the Hon''ble Apex Court and the observations of the judgment and order dated 30th of January, 2008 having been reiterated in the subsequent decision of the Hon''ble Single Bench dated 13th January, 2010, it was not open to the present petitioner to adopt the device of pressing for the abatement to the exclusion of the clear issue which the Hon''ble Single Bench desired adjudication regarding the nature and character of any surviving tenancy."

To the further mind of this Court the concluding observations of the Hon''ble Single Bench in its judgment and order dated 13th January, 2010 to the effect that the dismissal of CO 1590 of 2009 shall not stand in the way of the present petitioner to have the point of abatement finally adjudicated must be read compatibly with the observations of the Hon''ble Single Bench vide its judgment and order dated 30th January, 2008 regarding final determination of the nature and character of the tenancy since, the Hon''ble Single Bench was careful to emphasise that the judgment and order dated 30th January, 2008 in CO 2429 of 2007 "still remains in force".

In the backdrop of the above discussion the application fails.

CO 4283 of 2015 stands dismissed.

There will be, however, no order as to costs.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.