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Surendra Nath Bose and ors. Vs. Aghore Nath Bose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal534,62Ind.Cas.464
AppellantSurendra Nath Bose and ors.
RespondentAghore Nath Bose and ors.
Cases ReferredAhinsa Bibi v. Abdul Kader Saheb
Excerpt:
rent, suit for arrears of - tenancy, representation of, in entirety--tenants, some, not before court--decree, whether can be made against tenants not before court--appeal, person not party to, but added after judgment, whether bound by decree in--minor--guardian ad litem not appointed--defect, whether curable--civil procedure code (act v of 1908), section 99. - .....on appeal, an objection was taken to that decree on two grounds, first, that one of the tenants, noni gopal bose, had not been joined as a party, and secondly, that another tenant, an infant probodh krishna basu, had not bean properly represented by a guardian ad litem, as regards the first point, the district judge held that the objection was well founded in form. he found that although the name of noni gopal boss did not appear in the plaint and had apparently been omitted by mistake therefrom, be had received a copy of the summons and had been represented throughout by a pleader after he had filed a written statement. the district judge thereupon directed, after be had delivered judgment, that notice should be issued to noni gopal bose, informing him that his name had been added as.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the defendant in a suit for arrears of rent. The suit was decreed in part in the Court of first instance. On appeal, an objection was taken to that decree on two grounds, first, that one of the tenants, Noni Gopal Bose, had not been joined as a party, and secondly, that another tenant, an infant Probodh Krishna Basu, had not bean properly represented by a guardian ad litem, As regards the first point, the District Judge held that the objection was well founded in form. He found that although the name of Noni Gopal Boss did not appear in the plaint and had apparently been omitted by mistake therefrom, be had received a copy of the summons and had been represented throughout by a Pleader after he had filed a written statement. the District Judge thereupon directed, after be had delivered judgment, that notice should be issued to Noni Gopal Bose, informing him that his name had been added as a party defendant. The notice was not personally served upon Noni Gopal Bose, as it was represented that he was staying at Siliguri, and it was put up at the outer door of his house. We may add that the name of Noni Gopal Bose does not appear in the decree of either Court and he is not a party to this appeal As regards the infant Probodh Kumar Bose, it appears that his mother was proposed as guardian; she appeared through a Pleader in Court and stated that she could not undertake the defence on behalf of her infant son unless the name was corrected. This, however, was not done and the result was that she did not defend the suit on behalf of the infant, yet in the end, the District Judge made a decree in favour of the plaintiff against the infant.

2. On the present appeal, it has been argued that the decree cannot be sustained, because two of the necessary parties are not before the Court. We are of opinion that this contention is well founded and must prevail.

3. As regards Noni Gopal Bose, it is obvious that the attempt made by the District Judge to have his name inserted in the record, was not successful. We may point out that no useful purpose would have been served even if his name had been entered in the record as a defendant, he had not been made a party to the appeal, and after judgment in the appeal had been delivered, he could not very well be bound by the insertion of his name on the record as a defendant.

4. As regards the infant, it is clear that the mother could not be forced to accept the guardianship Narring Narain v. Jahi Mistry 13 Ind. Cas. 414 : 15 C.L.J. 3, If she declined to accept the guardianship, for reasons technical or otherwise, the proper course to follow was to appoint an officer of the Court to conduct the defence on behalf of the infant. The District Judge was in error when he thought that this was a defeat which could be cured by invoking the aid of Section 99 of the Civil Procedure Code, There is thus no escape from the conclusion that the infant is not represented in the suit and is not bound by the decree made by the District Judge.

4. The position then, is that two of the tenants are not before the Court. It has been argued, however, on behalf of the plaintiffs-respondents that this is immaterial and that they are entitled to a decree against such of the tenants as are before the Court. We have no doubt that this contention cannot possibly be sustained, Each tenant, is not plainly liable for the entire rent and cannot be sued alone Kashi Kinkar Sen v. Satyendra Nath 7 Ind. Cas. 840 : 12 C.L.J. 642 : 15 C.W.N. 191. Besides, the defendants are some of the representatives of the original tenant, all of whom constitute one body liable for the whole rent Ahinsa Bibi v. Abdul Kader Saheb 25 M. 23 at p. 35. Finally, the tenancy must be represented in its entirety before a decree can be made binding the tenure.

5. The result is that this appeal is allowed and the suit is dismissed with floats (one set only) in all the Courts,

Fletcher, J.

6. I agree.


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