Smt. Anjali Chakraborty vs Learning Tree and Others

Asim Kumar Ray, J.—This revisional application is directed against the order No. 180 dated July 22, 2008 passed in Title Suit No. 430 of 1995 by Civil Judge (Junior Division ), 2nd Court, Alipore thereby allowed an application filed by Achin Bandhu Guha. The background leading to the presentation of the revisional application in a nutshell is that Opposite Party No. 2 had filed Title Suit No. 430 of 1995 praying for declaration that plaintiffs are the licensee of the ground floor portion of the premises No. 20/s and 21/s Nalini Ranjan Avenue, Block-A, New Alipore, Kolkata-7000 53 under defendant Nos. 1 to 3 and for permanent injunction.

Achin Bandhu Guha opposite party No. 3 took out an application under Order 1 Rule 10(2) read with Section 151 of CPC Code stating that plaintiffs made Ashim Bandhu Guha opposite party No. 1, Ashit Bandhu Guha, opposite party No. 2 and Anjali Chakraborty petitioner as defendants to the suit and prayed for relief against them but inadvertently he had not been made a party though he is a party interested in the property in suit. The petitioner herein filed an objection against the application under Order 1 Rule 10(2) read with Section 151 of the CPC filed by Achin Bandhu Guha. The trial Court heard the parties and passed the order impugned, so this revisional application.

Mr. Piush Chaturvedi, learned advocate appearing for the petitioner has contended that the learned trial Court ought not to have held that for proper adjudication of the suit Achin Bandhu Guha be added as a necessary party. The plaintiff and the opposite parties are hand in globe with each other to delay the hearing of the suit. The order impugned may be interfered with and set aside.

Mr. Probal Kumar Mukherjee, learned advocate appearing for the opposite parties has contended that Achin Bandhu Guha and other defendants are the sons and daughter of Anil Bandhu Guha. Achin Bandu Guha filed a suit being Title Suit No. 53 of 1992 praying for partition of the suit property which is pending before the Court of learned Civil Judge (Senior Division), 1st Court at Alipore. The petitioner/defendant No. 3 also filed a suit for partition without making Achin Bandhu Guha as a party. The said suit is numbered as Title Suit No. 89 of 1998 which is pending before the same Court. Achin Bandhu Guha was considered as a party interested in Title Suit No. 89 of 1998 by the learned trial Court and an order was accordingly passed. Defendant No. 3/petitioner preferred a civil revision bearing No. 347 of 1999 challenging the order passed by the trial Court allowing Achin Bandhu Guha to be added as a party in the said suit. The said revisional application has been dismissed by the Additional District Judge, 4th Court, Alipore. Therefore, the learned Court below has rightly considered Achin Bandhu Guha as a party interested in Title Suit No. 430 of 1995.

Mr. Mukherjee has relied on a decision reported in Amit Kumar Shaw and Another Vs. Farida Khatoon and Another,

I have meticulously perused the revisional application and annexures thereto and the impugned order. It is an admitted fact that Achin Bandhu Guha is the brother of defendants and uncle-in-law of plaintiff No. 2. It is also an admitted fact that Title Suit being No. 53 of 1992 and Title Suit being No. 89 of 1998 are pending before the Court of Civil Judge (Senior Division ), Alipore. Both the suits are suit for partition wherein the suit property is the subject matter. In paragraph 16c of the plaint it has been averred that "plaintiff No. 2 the sole proprietor of the plaintiff No. 1 being the daughter-in-law of the defendant Nos. 1 to 3 and Achin Bandhu Guha agreed and accepted the proposal unconditionally made by the defendants/co-sharers/co-owners of the premises and instituted/started the said Montessori school in the name and style of Learning Tree."

The suit is for declaration of licensee of the premises in question and it has been rightly taken in the impugned order that the suit is basically a suit for declaration of licensee on mutually settled term between the plaintiff and the co-owners. Therefore, the interest of Achin Bandhu Guha will be affected certainly if prayer of the plaintiff is not considered and allowed. The proper adjudication of the suit demand inclusion of Achin Bandhu Guha as a party defendant in the suit being Title Suit No. 430 of 1995. The Hon''ble Apex Court in the decision reported Amit Kumar Shaw and Another Vs. Farida Khatoon and Another, has observed that "the object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases :

(1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or

(2) when, without his presence, the questions in the suit cannot be completely decided.

Learned advocate appearing for the petitioner has relied on a decision reported in Kasturi Vs. Iyyamperumal and Others, The Court has held :

Two tests are to be satisfied for determining the question who is a necessary party. Tests are-(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.

Both the decisions support the prayer of opposite party Achin Bandhu Guha to be added as a party.

Considering the aforesaid background in mind, I do not find any illegality in the order impugned. The revisional application has not merit and the same is dismissed. Urgent xerox certified copy of this judgment, if applied for, be given to the learned advocate of the parties.