Shyamal Dutta And Others vs Lalit Santra & Ors

Subhasis Dasgupta, J

Petitioner in C.O. No. 2556 of 2018 is admittedly one of the defendants in connection with Title Suit 243/15 (1424/14) pending in the court of learned Civil Judge (Junior Division) 2nd Court Serampore, filed by plaintiffs/opposite parties praying for eviction of defendants and recovery of khas possession. In such suit for eviction, plaintiffs filed three (03) separate petitions, out of which two under Order 1 Rule 10 CPC praying for striking out the name of plaintiff Nos. 3 and 4 from the cause title of the plaint and for transposition of the name of the plaintiff No.1 to the status of proforma defendant, and another for amendment under Order 6 Rule 17 read with Section 151 CPC. The learned court below out of two petitions, filed under Order 1 Rule 10 CPC, allowed one petition praying for striking out the name of the plaintiff Nos. 4 and 5 from the cause title of the plaint, while rejected the prayer for transposition under Order 1 Rule 10 CPC, as regards plaintiff No.1 to the status of promorma defendant. The 3rd petition pertaining to the prayer for amendment was, however, allowed. Those three (03) petitions filed by the plaintiffs came to be decided by a common Order No. 120 dated 21.02.18 by the learned Civil Judge (Junior Division) 2nd Court, Serampore.

One of the defendants being petitioner in C.O. No. 2556 of 2018 felt aggrieved with the amendment having allowed, and sought for interference by this court. The plaintiffs similarly got annoyed with the rejection of the prayer for transposition by the learned court below, and accordingly moved the jurisdiction of this court by filing revisional application being C.O. 2753 of 2018 under Article 227 of the Constitution of India urging for intervention of this court.

Since both the revisional applications (C.O. 2556 of 2018 and C.O. 2753 of 2018) found its emergence from a common order being recorded by the learned court below on 21.02.2018 arising out of Title Suit No. 243/15 (1424/14), on the prayer of learned advocate for both the parties, these two revsisional applications were heard together for effective adjudication of the issues requiring decision from this court.

Learned advocate for the defendants/petitioner adverting to averments contained in para 4 and para 6 of the plaint in T.S. 243 of 2015 transpiring status of the defendants, sought to be evicted, after the demise of the original tenant, by reason of introduction of Section 2(g) of West Bengal Premises Tenancy Act, 1997 providing extended meaning of 'tenant' and thereby enforcing the time limit for the legal heirs, mentioned in Section 2(g) of the Act itself to occupy the tenanted premises, submitted that the instant prayer for amendment seeking application of the amended provision of Section 2(g) of West Bengal Premises Tenancy Act, 1997 was no longer needed being superfluous and the learned court below thus improperly exercised his authority without making due application of judicial mind.

As regards the rejection of the prayer for transposition of plaintiff No.1 to the status of proforma defendant, learned advocate for the petitioner/defendant submitted that the court below had rightly appreciated the provision of law in context with the disclosure made in the petition itself proposing for transposition of plaintiff No. 1 to proforma defendant merely on the ground of failure of the plaintiff No.1 to sign the documents jointly with the other co-plaintiffs, and thus it was submitted to be ridiculous one.

Refuting the submission raised by the learned advocate for the petitioner/defendant, learned advocate for the plaintiffs/opposite parties submitted that the proposed amendment was nothing but an elaboration of the averments, contained in para 4 and para 6 of the plaint detailing out the effect and applicability of the amended provisions of Section 2(g) of West Bengal Premises Tenancy Act, 1997 over the facts and circumstances of the case, by reason of the death of the original tenant occupying the suit premises. It was thus the proposed by the learned advocate for the plaintiffs/opposite parties that the proposed amendment never brought about any change in the nature and character of the suit, already instituted against the defendants with a prayer for eviction and recovery of possession.

Learned advocate for the plaintiffs further submitted that since after a partition, plaintiff No.1 had already received a demarcated portion of land and as such, the plaintiff No.1 naturally lost his interest over this case, and for such loss of interest by plaintiff No. 1, the defendant would not suffer any harm, if the plaintiff No.1 was allowed to be transposed to the status of proforma defendant in the instant case.

The points to be addressed by this court requiring decision from this court are whether the prayer for amendment was allowed complying with the provision of law as mentioned in Order 6 Rule 17 CPC, and further the rejection as regards the prayer for transposition was made adhering to the provisions of law, or not.

As regards the prayer for amendment, It appears from the copy of the petition seeking amendment under Order 6 Rule 17 read with Section 151 CPC that the petitioner is one of the defendants in Title Suit No.243/15, and this defendant/petitioner with others proceeded to occupy the tenanted house as legal heirs after the demise of the original tenant on 07.08.06. It further appears from the prayer for amendment that by reason of the proposed amendment, the plaintiffs sought to incorporate certain factual positions inviting applicability and effect of amended provisions of Section 2(g) of West Bengal Premises Tenancy Act, 1997 (which came into force on 10.07.2001) without introducing a new fact, distinctively different from the nature and character of the suit already instituted, and thereby making elaboration of the facts already contained in para 4 and para 6 of the plaint. Such facts, proposed to be incorporated in the plaint by way of amendment, were nothing new and rather appear to be explanatory of the facts already put in the plaint. The settled proposition of law is that any change in the position of law, and its consequent effect thereunder on a particular facts and circumstances of a case may be taken at any point of time. When there were averments taken in the plaint leaving sufficient disclosure pertaining to the status of the defendant, and that too by reason of introduction of amended provisions of law, which though insufficient, but insufficiency could be effectively taken care of by way of proposed amendment furnishing sufficient materials available under the provisions of law without making any change in the nature and character of the suit. The proposed amendment as such would not cause any resultant harm prejudicing the right, title and interest, if there by any, available under the provision of the law to defendant, who are sought to be evicted in this case.

Learned court below proceeded to refuse the prayer for transposition for the refusal of plaintiff No.1 to sign the papers jointly with the co-plaintiffs, which according to the perception of the court below was not convincing enough to allow the prayer for transposition in sub-serving the purpose of justice.

Admittedly, plaintiff Nos. 4 and 5 of the instant suit upon executing a deed of gift dated 03.10.13 in favour of plaintiff Nos. 1 to 3 divested their ownership and title to the extent of their share from the suit property. Subsequently plaintiff Nos. 1 to 3 entered into an amicable partition, dated 08.10.13, which was subsequently registered, and in consequence thereof plaintiff Nos. 1 to 3 acquired right, title and interest in respect of the suit premises to the extent of their 1/3rd share each. Since plaintiff No.1 was allotted the demarcated portion of land, mentioned in the schedule of the deed of partition, he presumably lost his interest over this case, and ultimately declined to put his signature jointly with plaintiff Nos. 2 and 3 having share each inclusive of the suit premises, wherefrom defendants were sought to be evicted. This is not the position that the transposition was sought for after expunging the name of plaintiff No.1 from the cause title of the plaint. The plaintiff Nos. 2 and 3 for their common interest preferred to continue the eviction suit putting the name of plaintiff No.1, as proforma defendant, in the present suit. Since a co-sharer can maintain eviction suit in the absence of other co-sharers, the same principle may be borrowed over here to consider the prayer for transposition. The transposition, if allowed, there will be no prejudice caused to the status of the defendants, so far as the instant suit is concerned. Since the tenanted house fell in the allotment of plaintiff Nos. 2 and 3 as per deed of partition effected between the parties, and since plaintiff No.1 was allotted a demarcated portion of land, specifically shown in the partition deed itself, the prayer for transposition ought to have been allowed by the learned court below upon visualising the present existing interest of the plaintiff No.1, who was allotted with demarcated portion of land after the deed of partition being effected amongst plaintiff Nos. 1 to 3. The present and existing interest of the defendant, not being impaired in any manner whatsoever, the transposition of plaintiff No.1 to the status of the proforma defendant would pave the way for continuance of the eviction suit, instituted against the defendants with a prayer for eviction and recovery of possession.

In the absence of any other points being urged to be decided, except the points mentioned hereinabove, the points, so raised, are accordingly answered in the way, as discussed hereinabove.

The revisional application being C.O. No. 2556 of 2018 thus fails being wtihout any merits.

The findings thus reached by the learned court below, as regards the prayer for amendment being allowed, would go unaltered.

Another revisional application being C.O. No. 2753 of 2018, succeeds for the discussion made hereinabove.

The relevant portion of the order No. 120 dated 21.02.2018, passed by learned Civil Judge (Junior Division), 2nd Court, Serampore in T.S. No. 243 of 2015 (1424/ 2014), rejecting the prayer for transposition of plaintiff No. 1 to the status of proforma defendant is set aside.

Consequently, the relevant prayer under Order 1 Rule (10) (2) of C.P.C. praying for transposition of plaintiff No. 1 to proforma defendant be allowed at the risk of the plaintiffs.

It is made clear that other operative portion of the order impugned will, however, remain unchanged. Learned Civil Judge (Junior Division), 2nd Court, Serampore is directed to amend the cause title doing necessary correction putting the name of plaintiff No. 1 to the category of proforma defendant with a further direction allowing proforma defendant (plaintiff No. 1) to furnish written statement, if any, on a date to be suitably fixed by the court below.

With this observation, the Revisional Applications being Nos. C.O. 2556 of 2018 and C.O. 2753 of 2018 thus stand disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.