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Pravat Chandra Giri Vs. Amulya Chandra Bahaduri and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1927Cal340,101Ind.Cas.527
AppellantPravat Chandra Giri
RespondentAmulya Chandra Bahaduri and ors.
Cases ReferredLodai Mollah v. Kally Dass Roy
Excerpt:
- .....decree was passed in the suit as against him and could then have preferred an appeal that the present application before us in so far as it purports to be under section 115 of the code of civil procedure is not maintainable. the position seems to be that no appeal in point of fact has been preferred to any court against the decision passed by the learned munsif, assuming for a moment that that decision may be regarded as amounting to a decree as against the plaintiff and that the appeal lay from it. i am clearly of opinion that this court has jurisdiction in the present case by reason of the provision of section 115 of the code to deal with the matter and now that the records are before us, there is no reason why we should not deal with it. the preliminary objection, therefore, in.....
Judgment:

Mukerji, J.

1. The petitioner in this Rule instituted a suit for rent in the first Court of the Munsif at Hooghly. The suit was for recovery of the rent for the years 1329 to 1332. It was alleged on behalf of the petitioner that he had a Patni Taluq in Mouza Jagannathpur and that defendants in the suit were tenants under him. The tenants appeared and filed a written statement alleging amongst other things that the plaintiff was not entitled to a decree for rent as Mouza Jagannathpur was in the possession of the Receiver who had been appointed in respect of what is known as the Tarakeswar estate and that they had already paid the rents which were due from them to the said Receiver. These allegations of the defendants were supported by the Receiver who made an application to the Munsif on the 14th August 1926 praying to be added as a party to the suit. The Munsif rejected this application by an order dated the 16th August 1926, and in the said order it appears to have suggested that the Receiver might, if so advised, come in and prosecute the suit as the sole plaintiff therein. Thereafter on the 22nd August 1926 the Receiver apparently acting on the suggestion aforesaid made an application to the Court and the same was granted by an order passed on the 13th September 1926. By this order the Munsif directed that the Receiver should be made the sole plaintiff in the suit in the place of the original plaintiff, namely, the petitioner and that the Receiver should be allowed to prosecute the same. It is the validity of the order which has bean questioned before us in this Rule which the petitioner has obtained.

2. An objection in the nature of a preliminary objection has been taken before us though at the conclusion of the hearing of this Rule, on behalf of the tenants opposite party. It is substantially to the effect that the order that has been passed by the Munsif is one which comes within the purview of Order 1, Rule 10 of the Code of Civil Procedure and it has the effect of finally adjudicating upon the rights of the plaintiff and that, therefore, it should fee treated as a decree within the meaning of Section 2 of the Code of Civil Procedure and consequently an appeal would lie From this order. In support of this position reliance has been placed upon a decision of the Patna High Court in the case of Ramji Pandey v. Alaf Khan A.I.R. 1925 Pat. 121 and the case of Rama Rao v The Raja of Pittapur [1918] 42 Mad. 219. In the former of these two cases in a suit for partition, on the application of the plaintiff in that suit, certain defendants were dismissed from, the suit and the suit as against these defendants was dismissed and it was held that the order dismissing the said defendants from the suit amounted to an adjudication of their rights in that suit against them and, therefore, it amounted to a decree. In the second of the aforesaid cases an order striking out a defendant from the array of the parties therein as an unnecessary party and dismissing the suit as against him was held to amount in effect to a decree.

3. The reports of these two cases show that there was an adjudication on the question of the rights of the persons who were struck out from the suit and in that respect there is some distinction as between these cases on the one hand and the case before us on the other but I and not of opinion that, even if the two cases to which I have referred be considered as not being distinguishable from the present one and even if it be conceded that the plaintiff could have waited till a proper decree was passed in the suit as against him and could then have preferred an appeal that the present application before us in so far as it purports to be under Section 115 of the Code of Civil Procedure is not maintainable. The position seems to be that no appeal in point of fact has been preferred to any Court against the decision passed by the learned Munsif, assuming for a moment that that decision may be regarded as amounting to a decree as against the plaintiff and that the appeal lay from it. I am clearly of opinion that this Court has jurisdiction in the present case by reason of the provision of Section 115 of the Code to deal with the matter and now that the records are before us, there is no reason why we should not deal with it. The preliminary objection, therefore, in my opinion, must be overruled.

4. Turning now to the merits of the case, two contentions have been urged before us in support of this Rule. The first one is to the effect that the learned Munsif has no jurisdiction to pass the order that is complained of in this Rule and the second one is to the effect that in point of fact the Receiver was not appointed in respect of the petitioner's interest in the Mouza Jagannathpur. As regards the second contention reference hag been made to the schedule appended to the plaint in the suit in which the Receiver was appointed and from which it appears that the rent free debuttur lands in Mouza Jagannathpur were the properties, amongst others, that formed the subject matter of that suit. As against that, reliance has been placed on behalf of the opposite party upon the order appointing the Receiver. It is not possible upon the materials that are before us to pronounce a definite opinion on the question as to whether the Receiver was or was not appointed in respect of the putni interest in Mouza Jagannathpur which the plaintiff claims to be entitled to and on the strength of which interest he has instituted the present suit. But it does not appear to me to be necessary for the purposes of the present Rule to go into this question further and to attempt to arrive at a decision on it because I am of opinion that the order that has been passed by the Munsif in this case and which is now complained of in the present Rule is one which cannot be supported upon any ground and is one of which the learned Munsif had no jurisdiction whatsoever to pass. As I have already stated the tenants opposite parties relied upon the provisions of Order 1 Rule 10 of the Code for justifying the said order.

5. I may mention here that the learned vakil who has appeared on behalf of the Receiver has frankly conceded that the order cannot be justified by reference to any provision of the law. Order 1, Rule 10 corresponds to Order 16, Rules 2, 11 and 39 of the English Rules of the Supreme Court of 1883, To bring a case within Sub-rule 1 of Rule 10 it must be shown first that the action was commenced in the name of the original plaintiff by mistake and, second, that the substitution or addition is necessary for the determination of the real matter in dispute. This clearly is not a case in which it can be said that there was a bona fide mistake on the part of the original plaintiff in having instituted a suit on his own behalf. The sub-rule, therefore, clearly has no application to the present case. It is also clear upon the authorities that as a general rule a plaintiff cannot be added without the consent of the existing plaintiffs : Emden v. Carte [1881] 17 Ch. D.768, Pennington v. Cayley [1912] 2 Ch. 236. It is only reasonable to hold that such consent would be all the more necessary in the case of a substitution. The order, therefore, cannot be justified by reference to the provisions of Order 1, Rule 10 of the Code of Civil Procedure and must accordingly be set aside. The question then arises as to whether we should now pass an order upon the application of the Receiver that was filed on the 14th August 1926 praying to be added as a party to the suit and allow him to be added as a co-defendant. The propriety of passing an order to that effect has been pressed before us very forcibly by the learned vakil appearing on behalf of the Receiver and our attention has been drawn to an order which appears to have been passed by the District Judge upon the application of some persons, whether the present defendants were amongst them or not does not very clearly appear, by which order the learned District Judge directed the rents in respect of Mouza Jagannatbpur to be paid to the Receiver. We have carefully considered the circumstances but we are clearly of the opinion that it would not be right to allow the Receiver to come in and be adduced as a party defendant in the suit and then raise questions of title which ordinarily should be considered as foreign to a simple suit for rent. As has been laid down by this Court in the well known case of Lodai Mollah v. Kally Dass Roy [1881] 8 Cal. 238 a third party ought not to be made a party to a suit for rent so as to convert a simple suit for arrears of rent into one for the determination of the title to the property in respect of which the rent is claimed. It is clear to us that any defence which the Receiver would have been competent to take if he were made a co-defendant in the suit. would be open to the tenant defendants to take and it goes without saying that it will be for the plaintiff to prove his title to recover the rent which was claimed in the suit, before he can get a, decree therefor.

6. For these reasons we are of opinion that there are no grounds whatsoever which would justify us in allowing the Receiver to corns in as a co-defendant in the present suit and we, therefore, refuse to pass any further order on the Receiver's application of the 4th of August 1926 which was rejected by the Munsif on the 10th August 1926. For the foregoing reasons we are of opinion that the Bale should be made absolute and we order accordingly. We direst that the name of the Receiver Amulya Chandra Bhaduri Which has been inserted in the plaint as the sole plaintiff should be struck out and the name of the original plaintiff Pravat Chandra Giri should be restored as such.

7. We decline to make any order as to costs in this Rule.

Graham, J.

8. I agree.


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