Skip to content


Dr. A.K. Roy Vs. J.C. Roy Choudhury and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Tenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2265 of 1980
Judge
Reported inAIR1982Cal8,86CWN151
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantDr. A.K. Roy
RespondentJ.C. Roy Choudhury and anr.
Appellant AdvocateS.P. Roy Chowdhury, ;Anil Kumar Rakshit and ;Phani Bhushan Das, Advs.
Respondent AdvocateAsis Chandra Bagchi, Adv. (for No. 1) and ;M.N. Nag, Adv. (for No. 2), for Opposite Parties
Cases ReferredA.C. Bhattacharya v. Arun Kumar Roy
Excerpt:
- .....contending inter alia, that she is the wife of the eldest son of opposite party no. 1, and the real tenant of the premises in suit was her husband, tushar kanti roy choudhury, and the opposite party no. 1 was simply a benamdar and her husband all along paid rent.4. a matrimonial suit being matrimonial suit no. 800 of 1980 is pending between the husband and the wife opposite party no. 2 in the court of the district judge, 24-parganas. so the husband was not taking any step in the suit to safeguard the interest of the wife as well as that of two minor daughters. overruling the objection raised by the petitioner, the learned munsif by the impugned order allowed the application.5. it is contended by mr. s. p. roy chowdhury, the learned advocate for the petitioner that the opposite party.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. The order dated 10-6-1980 passed by Sri D. K. Bhattacharjee, the learned Munsif. 4th Court, Sealdah allowing the application under Order 1, Rule 10 C. P. C. filed by the opposite party No. 2 Smt. Kalpana Roy Choudhury to be added as a defendant to the suit for ejectment, being Title Suit No. 412 of 1973 has been challenged by the landlord-petitioner under the present revision.

2. According to the petitioner. Opposite party No. 1 was a tenant under him in respect of the premises in suit at a monthly rental of Rs. 150/- per month and he served a notice dated 25-5-1970 on the opposite party No. 1 to quit the premises in suit on and from 1-7-1979. But he failed to vacate, hence the suit. He, however, did not appear to contest the suit, and as such the suit was fixed for ex parte hearing.

3. On 20-3-1980 the opposite party No. 2 filed the application under Order 1, Rule 10 C. P. Code for being added as a defendant, contending inter alia, that she is the wife of the eldest son of Opposite party no. 1, and the real tenant of the premises in suit was her husband, Tushar Kanti Roy Choudhury, and the Opposite party No. 1 was simply a benamdar and her husband all along paid rent.

4. A matrimonial suit being Matrimonial Suit No. 800 of 1980 is pending between the husband and the wife Opposite Party No. 2 in the Court of the District Judge, 24-Parganas. So the husband was not taking any step in the suit to safeguard the interest of the wife as well as that of two minor daughters. Overruling the objection raised by the petitioner, the learned Munsif by the impugned order allowed the application.

5. It is contended by Mr. S. P. Roy Chowdhury, the learned Advocate for the petitioner that the Opposite Party No. 2 was an absolute stranger to the suit and she had no locus standi to be added as a party to an ejectment suit, in which the landlord and the tenant are only necessary parties.

6. Mr. Asis Chandra Bagchi, the learned Advocate for the Opposite Party No. 1 supporting the petitioner also questions the propriety of the impugned order.

7. Mr. M. N. Nag, the learned Advocate for the Opposite Party No. 2 contends that the Opposite Party No. 1 is the benamdar of his son Tushar Kanti Choudhury. husband of O. P. No. 2 who pays the rent of the house on drawing House Rent Allowance from his office (Shipping Corporation of India). He refers to the copy of extract from paragraph 5 of the petition dated 3-11-1979 filed by Tushar Kanti Choudhury before the Judicial Magistrate, Barrackpore, in Case No. 155 of 1978 under Section 125 Cr. p. C. and to the copy of extract from paragraph 8 of the petition dated 17-3-1981 under Section 24 of the Hindu Marriage Act filed by Tushar Kanti wherein the father. Opposite Party No. 1 was described as a dependent of the petitioner, thereby implying that the father had no income of his own. It is also contended that the allegation of the Opposite party No. 2 that the Opposite Party No. 1 was the benamdar of his son has been substantiated. It is further contended that the Opposite entry No. 2 being in actual occupation of the premises in suit is most interested in the litigation, as neither O. P. No. 1 nor his son is in actual occupation. According to him even a stranger to the suit, who has direct interest, legal or equitable in subject matter of dispute can be impleaded as a party. Reference is made to the decision in the case of G.M.V. Krishnamachari v. M. D. Dhanalakshmi Animal, reported in : AIR1968Mad142 .

8. Reference is also made to the decision of the Supreme Court in Razia Begum v. Anwar Begum, reported in : [1959]1SCR1111 in which the scope of Order 1, Rule 10 C. P. C. came up for consideration. At page 391 of the report the Supreme Court observes as follows :

'There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit he should have a direct interest in the subject-matter of the litigation whether it raises questions relating to movable or immoveable property.'

9. Again. Opposite party No. 1 has been characterised as the benamdar of the real tenant, husband of the Opposite party No. 2. In the absence of the real owner, the wife can represent his interest till the marriage is dissolved by a decree of divorce. 'The decision in any proceeding brought by or against the benamidar will bind the real owner though he is not joined as a party unless it is shown that the benamidar could not or did not in fact represent the interest of the real owner in that proceeding.' Ragho Prasad Gupta v. Krishna Poddar, reported in : [1969]1SCR834 . It is also held by the Supreme Court in the case of Niranjan Kumar v. Dhyan Singh reported in : AIR1976SC2400 that oral evidence in view of proviso (4) to Section 92 of the Evidence Act is admissible to prove that the real tenant was other than the ostensible tenant.

10. There is also a Bench decision in the case of A.C. Bhattacharya v. Arun Kumar Roy reported in (1961-62) 65 Cal WN 1175 wherein it is held that a tenancy may be benami, though it may not have been to the knowledge of the landlord, who accordingly not be bound to recognise the contender as the real tenant. But once benami is found it would dispel the landlord's allegation of transfer of the tenancy which might otherwise have disentitled the tenant to any protection under the Rent Control Legislation.

11. All these decisions are referred to only for the purpose of showing that in the case of alleged benami -- the real tenant or one whose interest is affected may be a necessary party to the suit.

12. While disposing the application under Order 1, Rule 10 C. P. C. the Court should be guided by certain principles; The narrow view is that 'the questions involved in the suit' can only be questions as between the parties to the litigation and not questions between any of the parties to the suit and a third party even though touching the subject matter of the suit. Much emphesis is laid on this view by Mr. Roy Chowdhury. It is to be seen whether the presence of O. P. No. 2 before the Court would enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Mr, Nag has emphasised that the rules relating to the joinder of parties are based on the principles of avoiding multiplicity of suits and also preventing possible conflict of decisions. To these principles it may be added that there must be finality to litigation and all the controversy must be set at rest. Having taken into consideration all these principles the learned Munsif passed the order in favour of O. P. No. 2. In my opinion in a proper case for ends of justice the wider interpretation of the scope of Order 1, Rule 10 should be adopted.

13. Thus, in this case there is no scope for interference. The rule is accordingly, discharged. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //