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Sm. Chand Kaur and ors. Vs. Sm. Nalini Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3517 of 1974
Judge
Reported inAIR1976Cal97
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17D; ;Calcutta Civil Rules - Rule 14(2); ;Calcutta Civil Order; ;Code of Civil Procedure (CPC) - Order 6, Rule 14
AppellantSm. Chand Kaur and ors.
RespondentSm. Nalini Roy Choudhury and ors.
Appellant AdvocateMalay Kumar Basu and ;Asim Banerjee, Advs.
Respondent AdvocateTapas Roy, Adv.
Excerpt:
- .....of defendants nos. 1 (b) to 1 (f) by orders dated may 27, 1965 and august 12, 1965. the court guardian filed the written statement on december 12, 1965 on behalf of the said minors but no order appears to have been passed accepting the same. on june 13, 1966 an additional written statement was filed on behalf of the aforesaid substituted defendants through mr. m. n. bose which was duly accepted. no vakalatnama filed by the court guardian or by mr. bose could be traced on record. the suit was thereafter decreed on february 21, 1967 and in the decree it was mentioned that the minor defendants nos. 1 (b) to 1 (f) were represented by their natural guardian mother.2. an appeal was preferred therefrom which was dismissed and thereafter a second appeal was filed in this court being s. a......
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule was obtained by the defendants against Order No. 114 dated September 24, 1973, whereby their application under Section 17-D of the West Bengal Premises Tenancy Act was rejected. The facts appear to be as follows :--

A suit was instituted by the opposite parties in 1960 for recovery of possession of Premises Nos. 30-A and 51-A, Chakraberia Lane, P. S. Ballygange Calcutta which the defendants Nos. 1 and 2, predecessors-in-interest of the petitioners, held as a monthly tenant. The ground for eviction was default in payment of rent from July 1957 to November 1957. The suit was decreed ex parte on June 5, 1962 and soon after it was restored. Thereafter an application for substitution of the legal representatives of the defendant No. 2 was allowed on September 22, 1962 and they filed an additional written statement adopting the written statement of defendant No. 2 which was accepted. Again the suit was decreed on contest on March 28, 1963 in which Mr. Manmatha Nath Bose, pleader appeared for the defendants. On appeal, the decree was set aside and the case was sent back on remand. Thereafter the legal representatives of the defendant No. 1 were substituted by an order dated 19-3-1964 and one Joy Deb Ghosh was appointed Court guardian on behalf of defendants Nos. 1 (b) to 1 (f) by orders dated May 27, 1965 and August 12, 1965. The Court guardian filed the written statement on December 12, 1965 on behalf of the said minors but no order appears to have been passed accepting the same. On June 13, 1966 an additional written statement was filed on behalf of the aforesaid substituted defendants through Mr. M. N. Bose which was duly accepted. No Vakalatnama filed by the Court guardian or by Mr. Bose could be traced on record. The suit was thereafter decreed on February 21, 1967 and in the decree it was mentioned that the minor defendants Nos. 1 (b) to 1 (f) were represented by their natural guardian mother.

2. An appeal was preferred therefrom which was dismissed and thereafter a second appeal was filed in this Court being S. A. No. 813 of 1968 which, after admission, is pending.

3. On June 1, 1972 the petition under Section 17-D was filed with an application under Section 5 of the Limitation Act. This application was signed by one of the defendants and filed by Mr. M.N. Bose, pleader. The application was rejected as the delay was not condoned. Thereafter the matter came up in Civil Revision Case No. 3114 of 1972 with the connected second appeal. ThisCourt condoned the delay and directed the trial Court to dispose of the application under Section 17-D of the Act in accordance with law, while the appeal was kept pending.

4. This application was rejected by the impugned order as already stated. It was held that the application was not maintainable as only one of the defendants filed the application while Section 17-D (b) has empowered the tenant only to file application for relief under the said section. The learned Munsif held that when there are tenants defendants more than one in number, the application should be made by all the tenants defendants. Accordingly the application was not maintainable in law. The propriety of this order has been challenged in this Rule.

5. Under Order 6, Rule 14 of the Code of Civil Procedure every pleading shall be signed by the party and his pleader (if any) and pleading has been defined under Rule 1, Order 6 as the plaint or written statement. Under Rule 14 of Civil Rules and Orders all pleadings, original petitions, affidavits, Vakalatnamas and applications presented 1o the Court shall be dated and signed by the person presenting and also where necessary, by such other person as may be required by law to sign them. Mr. Malay K. Bose, learned Advocate appearing for the petitioners submitted that as the applications are not required to be signed under the provisions of the Code and the relevant rule by the concerned parties to the litigation and the application filed by the presenting defendant and counter signed by the lawyer appearing for the defendants amounted to sufficient compliance with the provisions of law. This contention was disputed by Mr. Tapas Roy learned Advocate appearing for the opposite parties, who submitted firstly that the application was not signed by all the defendants as they were required to sign the same being the tenants under Section 17-D and secondly, the lawyer counter signing the petition was not representing all the defendants as obviously the minor defendants 1 (b) to 1 (f) were being represented by the Court guardian.

6. Rule 14 (2) of the Civil Rules and Orders provides, as already stated, that the pleadings, applications etc. are to be signed by the person presenting and also where necessary, by such other person as required by law to sign them. The provision of Order 6, Rule 14 only requires that the pleadings should be signed by the parties. Pleadings, as we have seen, under Order 6, Rule 1 mean plaint and written statement. Accordingly, it will be sufficient compliance with the provisions of law if the application is signed by the person presenting, which means that any one of the parties or his authorised agent presenting such application need sign the application. Section 17-D requires that the application is to be signed by the tenant and in matters before the Court, the procedure b to be governed and regulated by the Codeof Civil Procedure and the Civil Rules and Orders framed under Section 122. Accordingly though the right to make the application under Section 17-D is conferred on the tenant which includes all tenants when there are more tenants than one, the application may be made as provided in the relevant rules noted above.

7. It is further contended by Mr. Bose that the lawyer was representing all the defendants and the application bears his signature and accordingly it should be deemed to be a valid application. It appears that though the Court guardian was appointed for some of the minor defendants, the decree-showed that the minors were represented by their natural guardian mother in the suit, and the defendants were represented by Mr. M.N. Bose, Pleader in the suit. Therefore, it seems that though at one stage the Court directed the minors to be represented by the Court guardian, the minors were in fact represented by their mother and natural guardian and the order appointing the Court guardian for some reason or other was not given effect to or acted upon as the decree and the records show that Mr. Bose was representing all the defendants in the suit.

8. For these reasons I am of opinion that the application was maintainable in law and the learned Munsif committed material irregularity in rejecting the application as being not maintainable.

9. The impugned order is accordingly set aside and the Rule is made absolute.

10. There will be no order as to cost in this Rule.

11. Let the records be sent down as quickly as possible to enable the learned Munsif to proceed with the case further in accordance with law.


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