Minati Ghosh vs Kankali Chattopadhyay

. Bhaskar Bhattacharya, J.—The only point the arises for determination in this revisional application is whether the wife of a tenant should be added in a suit for eviction filed by the landlord on the ground that the tenant is of late not traceable. The learned trial Judge has rejected the application of the wife of the tenant and as such she is the Petitioner before this Court.

Mr. Bhattacharya, the learned Counsel appearing on behalf of the Petitioner has placed strong reliance upon the decision of the Supreme Court in the case of Savitri Devi Vs. District Judge, Gorakhpur and Others, and of this Court in the cases of Hiran Bala v. Prodyut Kumar 1990(1) C.H.N. 447 and Dr. A.K. Roy Vs. J.C. Roy Choudhury and Another, and has contended that the learned trial Judge acted illegally and with material irregularity in rejecting the application of the Petitioner by not following the principles laid down in the aforementioned decisions.

Mr. Mukherjee, the learned Counsel appearing for the landlord has on the other hand supported the order impugned herein and has contended that the plea of unsoundness of mind and intractability of the tenant having been disbelieved by the learned trial Judge, this Court sitting in a revisional jurisdiction should not interfere with such decision. Mr. Mukherjee in this connection has relied upon the decisions of this Court in the cases of D.K. Dutta v. Nita Madan and Anr.(4) and Puspa Rani v. Prasanta Kumar 1997(2) C.L.J. 511.

In the case of B.K. Dutta Vs. Sm. Nita Madan and Another, relied upon by Mr. Mukherjee, husband of a tenant Defendant wanted to be added in a suit for eviction filed by the landlord on the plea that he was the real tenant, not his wife. The trial Judge allowed such prayer. This Court set aside such order on the ground that the husband having set up a plea of independent right of tenancy should not be added in the suit. The said husband, this Court observed, would not be bound by the decree and as such for deciding altogether a different issue, such person should not be added. Therefore, the aforesaid decision is based on a fact different from the present one where the Petitioner is not claiming independent right but wants to defend the suit on the basis of the defence available to her husband as the husband is not traceable.

Similarly the other decision viz. Puspa Rani v. Prasanta Kumar (Supra) relied upon by Mr. Mukherjee cannot be of any assistance to his client. In the said case, the question was whether a gratuitous transferee pendente lite should added as party. Mallick, J. answered the question in negative. Such is hot the situation in the present case.

Now I proceed to consider the decisions relied upon by Mr. Bhattacharya.

In the case of Savitri Devi v. District Judged, the plea taken by the applicants under Order 1 Rule 10 of the Code was that they were bona fide transferees from Defendant No. 1 without the knowledge of order of injunction against Defendant No. 1 against whom injunction was obtained fraudulently by the Plaintiff by forging the vakalatnama of the Defendant No. 1 and filing the same before the court. In such a fact, the Apex Court held that the transferees should be added. Therefore, the principles laid down in the said case cannot have any application to the fact of the present case.

In the case of A.K. Roy v. J.C. Roychowdhury and Anr. (Supra) a daughter -in-law of a tenant/Defendant came up with an application for being added as a Defendant on the plea that her father-in-law was not the real tenant but her husband was the real one; due to pendency of a matrimonial suit between her husband and herself, neither the father-in-law nor the. husband was taking step. Thus, to safeguard her interest and that of her two minor children she prayed for her addition in the suit, The learned trial Judge allowed such prayer. Guha, J. did not interfere with the order passed by the learned trial Judge as His Lordship was of the view that for avoiding multiplicity of litigations and for setting at rest all the controversy the addition was justified. With respect, I am unable to subscribe to the view adopted by His Lordship for the simple reason that even if the husband of the applicant was the real tenant, so long he was alive, the applicant did not acquire any interest in the tenancy and if the husband or the father-in-law decided not to contest or even to surrender the tenancy to the landlord, she could not resist dispossession consequent to such surrender. Such being the position, no question of adding such a person or deciding her alleged right arose apart from the fact that the plea taken was foreign to the issues involved in the suit.

In the case of Hiran Bala v. Prodyut Kumar (Supra), the wife of a tenant/Defendant prayed for addition in a suit for eviction filed by the landlord on the ground of default and reasonable requirement on the plea that she was ostensible tenant and a benamdar of her husband. Her husband was transferred to Madhya Pradesh and was reluctant to keep contact with wife and children who resided in the suit property. The learned trial Judge allowed such prayer. The landlord came up in revision. Nandy, J. dismissed the revisional application with the observation that the wife was entitled to contest the suit on the pleas that could be taken by her husband. She would not be permitted, His Lordship continued, to take altogether a new plea which her husband could not take by way of defence. While coming to such a conclusion Nandy, J. pointed out the following three tests which should be satisfied before a person can be added:

a) whether the result of the suit will affect the third party applicant?

b) Whether the court will be required to answer any issue other than these arising or would arise from the pleadings of the parties to the suit ? and

c) Whether the presence of the party will facilitate effective and complete adjudication of all questions involved in the suit ?

His Lordship concluded that the applicant in that case satisfied all the tests.

With great respect to His Lordship, I am of the view that the very first condition mentioned above was not satisfied in the said case. The question ''whether the result of the suit will affect the third party applicant'' really means whether the result of the suit will affect independent legal interest of the third party applicant in the suit property. So long the husband of the applicant was alive, the applicant and her two children were living in the suit property as a licencee of the tenant; but if the tenant decided not to dispute the allegations of the landlord, his licencee had no right to can test the allegations made against tenant. If the view taken by His Lordship is adopted, in that event, in all suits for eviction of a tenant, where a tenant inspite of service decides not to contest the suit, the wife, children, grandchildren or even the servants of the tenant who are residing in the property should be added on the ground that they will be affected by the result of the suit.

I am thus not prepared to follow the aforesaid decision.

Although I intend not to follow the views taken by Guha and Nandy, JJ. as mentioned above, in my opinion, this revisional application should succeed on a different ground and for that reason I have decided not to refer this matter to a Division Bench as the disposal of the proceeding will be unnecessarily delayed causing prejudice to the Plaintiff.

As mentioned earlier, the case made out by the Petitioner in her application under Order 1 Rule 10 read with Section 151 of the Code is that her husband after losing mental equilibrium had been untraceable for the last few months. Inspire of enquires from different quarters, his whereabouts were still unknown. The applicant even did not know whether he was at all alive, she had come to know from the learned advocate for the Defendant that the suit was fixed for ex parte hearing. As the applicant was residing in the suit premises, she should be added for the purpose of contesting the claim of the landlord.

The Plaintiff/landlord did not file any written objection denying the allegations made by the Petitioner in the said application and the learned trial Judge mentioned in the order impugned that the learned advocate for the Plaintiff submitted that his client would not file any written objection to the said application.

16.The learned trial Judge, however, disbelieved the case of the Petitioner on the ground that there was no document to show that the Defendant was suffering from unsoundness of mind or that he was not traceable.

When there was no written objection controverting the allegation of the Petitioner and the learned advocate for the Plaintiff gave out that no written objection would be given, in my view, the learned trial Judge in the absence of any denial of fact alleged in the application acted illegally and with material irregularity in disbelieving the case of the Petitioner on the sole ground of absence of any document. It is not a case where inspire of giving opportunity the Petitioner did not produce any evidence of unsoundness of the Defendant. Moreover, excepting lodging of G.D. in the Police Station no other ''document'' can be filed in support of the plea that the Petitioner''s husband was not traceable. As mentioned above, in the absence of any material disputing the allegation, the demand of such documentary evidence was uncalled for. Therefore from the controverted allegations of the Petitioner it was prima facie established that the Defendant was not traceable for the fast few months.

Under such circumstances, in view of the provision contained in Section 108 of the Indian Evidence Act no presumption of death of the Defendant should be drawn before the expiry of seven years. Even after seven years, no presumption as to the date of death can be drawn. Thus, even if the suit is decreed ex parte, the Petitioner, if the Defendant is not traceable for seven years, after the expiry of the period may pray for setting aside ex parte decree if she can prove that the Defendant was actually dead at the time of passing decree. At least at this stage, it cannot be finally said whether the Defendant is still alive. If the Defendant is not alive, a right has definitely accrued in the property in favour of the Petitioner. Therefore, under the extraordinary situation prevailing in this case in my view, the Petitioner should be permitted to contest the suit on behalf of the Defendant. She will not be permitted to take any additional defence not taken by the Defendant or not available to the Defendant under law. Mr. Mukherjee on behalf of the opposite party has submitted that the Defendant filed to comply with the order passed on his application u/s 17(2) of the West Bengal Premises Tenancy Act. If really such order has not been complied with, the law will take its own course and the present Petitioner will be bound by any order that has already been passed against the Defendant and by those orders which will be passed against the Defendant for non-compliance of any order. If the defence against delivery of possession of the Defendant is struck out, the Petitioner will be entitled to participate in the trial in accordance with the law laid down by the Apex Court in the case of Modula India Vs. Kamakshya Singh Deo, , on the other hand, if the defence is not struck out, she can lead evidence in support of her husband''s defence on his behalf, and cross-examine the Plaintiffs witnesses but not on any other point of her own.

The order impugned is thus set aside, the application for addition of party filed by the Petitioner is allowed subject to the observations made herein.

The learned trial Judge is directed to dispose of the suit positively by December 31, 2000.

No Costs.

Revisional application allowed.