Sk. Israil vs Sri Usha Kutia

Sahidullah Munshi, J. - This revisional application is directed against Order No. 32 dated 20th November, 2013 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore in Ejectment Suit No. 464 of 2008. The plaintiff, Sk. Israil, is the petitioner before this Court challenging the order by which the opposite party nos. 2 and 3 were added as parties in the pending ejectment suit under Order 1, Rule 10 (2) of the Code of Civil Procedure. It is the undisputed case by both the parties that Gauhar Bibi, since deceased, was the owner in respect of the suit premises. Various litigations proceeded in between the persons who claimed title through Gauhar Bibi and others including one Almatulla Gazi. According to the petitioner Sk. Lalloo claimed that his brother one Sk. Kallan alias Sk. Yasin allegedly claimed to be the husband of the said Gauhar Bibi and accordingly the said Sk. Kallan and Sk. Lalloo claimed to be the owners of three premises including the present suit premises. Sk. Lalloo filed a suit being Title Suit No. 582 of 1977 in the Court of the learned Munsiff, 3rd Court at Alipore whereby he alleged that one Samsunessa Bibi the mother of the petitioner, Sk. Israil was inducted as a tenant in respect of one room at premises no. 9, Prince Rahimuddin Lane, Kolkata-700033. Samsunessa Bibi contested the said suit and admitted that Gauhar Bibi''s son, Sk. Israil became the absolute owner. Another suit being Title Suit No. 65 of 1991 was filed by Sk. Lalloo alias Sk. Yunus in the year 1991 in respect of three premises including the present suit premises. Ultimately, Title Suit No. 65 of 1991 was decreed in 1996. Two appeals were preferred being Title Appeal No. 157 of 1996 and Title Appeal No. 109 of 1997 by the petitioner. One Almatulla Gazi alias Sk. Salim, the opposite party no.3 herein being the applicant filed an application for adding him as a party respondent in the said appeals before the learned Appellate Court below and the learned District Judge before whom the said appeals were pending, was pleased to allow the said application for addition of party and the said Almatulla Gazi was added as respondents in those appeals.

It is submitted by Mr. Shehnaz Tareq Mina, learned Advocate appearing for the opposite party no.3 that the judgment passed in the said two appeals have been challenged by Almatulla Gazi before this Hon''ble Court in S.A.T. Nos. 1909 of 2002 and 1910 of 2002. Those appeals have been admitted by an Order dated 14th November, 2011 by this Hon''ble Court. The records have been called for.

This Court is, therefore, of the view that apparently the said Almatulla had at least an adjudicable claim before the Appellate Court below. Those apart adjudication of such right is still pending before this Hon''ble Court in the aforesaid two Second Appeals being S.A.T. 1909 of 2002 and S.A.T. No. 1910 of 2002. Such fact has not been denied by the learned Advocate for the petitioner although he was given ample opportunity to make his submission.

Mrs. Sohini Chakraborty, learned Advocate appearing for the opposite party no.2, Kusha Khutia, filed an application under Order 1, Rule 10 (2) of the Code of Civil Procedure before the learned Court below and he prayed for his addition as defendant in the said suit. In his application she has stated that she became a tenant under Md. Alamatulla Gazi to whom the applicant is paying rent on valid rent receipt. Therefore, she should also be added as a party defendant in the suit. It is the case of Usha Kutia that she is the real tenant in respect of the suit premises and leaving him out if a decree is obtained in the name of some other person he may be evicted from the suit premises on the basis of a collusive decree in her absence. Therefore, for abundant caution he should be brought on record in the suit and he should get an opportunity to contest the suit instead of passing days at the risk of eviction.

Learned Advocate appearing for the petitioner relied upon two Single Bench decisions of this Court. He has submitted on the basis of the reported decision in the case of Chakraberia Sishu Sangha v. Sibaji Dutta and others reported in 97 CWN 735 which relates to a case under the specific performance of contract and where an application was made by a club for adding as co-defendant in the said suit for specific performance of contract. The Court held that in a specific performance of contract such petitioner cannot be added as a party. In the above decision in paragraph 8 it has also been mentioned that from a xerox copy of the ''Biana Patra'' it did not appear prima facie that possession was delivered by Shri Hrisikesh Dutta to the petitioner club. Therefore, the Court held that the suit for specific performance of an agreement for sale cannot be converted at the instance of a stranger to the agreement, into one of title. The said decision has no bearing in this case.

Another decision cited by the learned Advocate for the petitioner in C.R. No. 2072 of 1981 reported in CDJ 1984 Cal HC 118. In the said decision the opposite party no.2, the husband of Sm. Nita Madan had also made an application for being added as a party under Order 1, Rule 10 of Civil Procedure Code on the allegation that he was the tenant in respect of the aforesaid premises under the plaintiff-petitioner and because of his illness, his wife was entrusted to make payment of rent and take other steps for the said tenancy. As such, at a later stage, rent receipts were issued in the name of Sm. Nita Madan, the defendant in the said suit. The Court held that on such dispute the opposite party no.2 should not be allowed as a party in the said suit. The said case was totally different from the present one inasmuch as the suit was filed against the admitted tenant.

The learned Advocate for the petitioner also relied on another decision reported in AIR 1975 Orissa 86 wherein the Court held that relief of impleading new parties as defendants would amount to substituting a new suit in place of the old one and to direct the trial of the new suit on the basis of the court fees paid on the original plaint. The present case is not identical with the case in the said decision.

On perusal of the order impugned and on consideration of the submissions of the learned Counsel appearing for the parties it appears that Md. Almatulla Gazi still has a right over the suit property and the same is yet to be decided in the pending Second Appeal before this Court. The learned Court below, however, had no occasion to deal with the orders passed in the above mentioned Second Appeal pending before this Court. This Court is, therefore, of the view that no error has been committed by the learned Court below in allowing the application made by the opposite party nos. 2 and 3 whose claim that Almatulla Gazi has right, title and interest in the suit property, is still pending in the second appeal. So far as the opposite party no.2 is concerned he claims to be a tenant under Almatulla Gazi which is to be decided at the trial of the suit. The principle underlying Rule 10 of Order I is based on a broad principle. Only prima facie satisfaction is required for deciding that the impleadment of a party was imperative for the proper adjudication of the suit. Therefore, this Court finds no illegality and/or impunity in the order impugned. The application for addition of party has rightly been allowed by the learned Court below for complete adjudication between the parties.

The learned Advocate for the petitioner submitted that so far as the opposite party nos. 2 and 3 are concerned they do not have any remedy under Order 1, Rule 10 (2) of CPC but they can file application under Order 21, Rule 99 of the Code of Civil Procedure. This logic cannot be accepted when a party claims that he has direct interest in the suit property.

The opposite party nos. 2 and 3 have got a genuine apprehension that in the event the suit is decreed behind their back and they do not get any opportunity to know the decree when it is passed then perhaps the decree may be executed in their absence and they will be ousted from their possession. Keeping those apprehensions in mind it is always better to add the applicants as parties in the suit and that has rightly been done by the learned Court below.

The impugned order is affirmed.

The revisional application is dismissed.