Narthun Prasad Shaw And Another vs Asit Baran De And Others
2021 Latest Caselaw 4282 Cal

17th August,

(AK) 3&4

C.O. 3986 of 2019 IA No: CAN 1 of 2020 (Old No: CAN 2490 of 2020) CAN 2 of 2020 (Old No: CAN 2686 of 2020) CAN 3 of 2021 Narthun Prasad Shaw and another Vs.

Asit Baran De and others With C.O. 1180 of 2018

Zircon Dealers Private Limited Vs.

Asit Baran De and others

Mr. Debojyoti Basu ... For the Petitioner in C.O. 3986 of 2019.

Mr. Suddhasatva Banerjee Ms. Madrika Khaitan ... For the Petitioner in C.O. 1180 of 2018.

Mr. Mrinal Kanti Das Mr. Subhabrata Das Mr. Amitabha Roy ...For the Opposite party No.1 in both the matters.

The two revisional applications have been filed

respectively by the lessee in respect of a suit property and

a transferee (assignee) claiming through such lessee.

By the impugned orders, the respective applications

of the lessee and the assignees themselves, both for

addition of the assignees as defendants to the suit, were

rejected.

Learned counsel appearing for the petitioners in

both the matters argue that in view of the specific

averments made in paragraph nos.11 to 13 of the plaint,

inter-alia alleging fraud in respect of the very deed of

assignment, by which the assignees claim title to the

property, and since most of the reliefs in the suit conceive

of a relief ultimately against the assignees in the form of

the eviction of such assignees from the suit property, the

assignees are not only proper but necessary parties to the

suit.

It is contended that, for all practical purposes, the

assignees would be directly affected by the outcome of the

suit in view of the nature of the allegations made therein

and the reliefs claimed.

It is further contended on behalf of the lessee that

there is a distinction between the footing on which an

assignee and a sub-lessee stand, being that the former

has title in the property in his/her independent capacity

through the deed of assignment which is equivalent to

that of the lessee whereas the sub-lessee merely claims

through the lessee.

Learned senior counsel appearing for the

plaintiff/opposite party in both the matters contends that

the plaintiff is the dominus litis in a suit and it is for the

plaintiffs to choose whom to implead as defendants.

By placing reliance on Rule 9 and Rule 10(2) of

Order I of the Code of Civil Procedure, learned counsel

argues that the suit shall not be defeated by reason of

non-joinder of parties unless such party is a necessary

party to the suit.

It is, thus, contended that, in the event the

applications for addition of party are allowed, it will open

a flood-gate for the other assignees of the lessee to seek

impleadment in the suit one by one, thereby preventing

the suit from reaching its finality for an indefinite period.

Learned counsel places reliance on the judgment of

Raghuram Rao and others Vs. Eric P. Mathias and others,

reported at (2002) 2 SCC 624, in support of the

proposition that the liability of the lessee is not

extinguished by mere reason of alienation by way of

assignment. As such, it was held by the Supreme Court,

the lessee is a necessary party to the suit whereas an

assignee could at best be a proper party.

Learned counsel next places reliance on Manmatha

Nath Chowdhury and others Vs. Nalinaksha Rai and

others, a Division Bench judgment of this Court, reported

at AIR 1925 Calcutta 423, for the proposition that where a

lessee transfers the lease, whether permanent or

temporary, the claim to pay rent to the lessor is not

extinguished by assignment under Section 108(j) of the

Transfer of Property Act. It was further held by the

Division Bench that, by assignment, the lessee no doubt

divests himself of the contractual relation but the

personal covenant by which he undertook to pay rent for

the leasehold is not affected by the assignment.

Learned counsel also places reliance on Kanaklata

Das and others Vs. Naba Kumar Das and others, reported

at (2018) 2 SCC 352, wherein the Supreme Court

categorically held that the plaintiff or petitioner in

proceedings, being the dominus litis, cannot be compelled

to implead any third party to the proceedings unless that

third party proves that he is a necessary party and

without his presence suit cannot be proceeded with nor

can be decided effectively.

Upon perusing the judgments cited by the opposite

party, it is evident that there is no quarrel between the

provisions of Rule 9 and Rule 10(2) of Order I of the Code

of Civil Procedure. However, the two operate in subtly

different footings. Whereas, by virtue of Rule 9, a suit

shall not be defeated for non-joinder of a necessary party,

Rule 10(2) confers power on the court, with or without the

application of either party, to direct the name of a party to

be struck out or joined to the suit, whether as plaintiff or

defendant, whose presence before the court may be

necessary in order to enable the court effectively and

complete to adjudicate upon and decide all the questions

involved in the suit.

On a conjoint reading of the cited judgments, it is

evident that, although the plaintiff is the dominus litis,

the plaintiff has not got absolute discretion of impleading

or non-impleading defendants, where the question of a

necessary or proper party comes in.

In paragraph 11.4 of Kanaklata Das (supra), the

Supreme Court categorically held that the plaintiff, being

the dominus litis, cannot be compelled to make any third

person a party to the suit against his wish unless such

person is able to prove that he is a necessary party to the

suit.

It was further held by the Supreme Court that no

person can compel the plaintiff to allow such person to

become the co-plaintiff or defendant in the suit, more so

when such person is unable to show as to how he is a

necessary or proper party to the suit.

The expression "proper party" has been included to

describe persons who are entitled to be added in a suit,

particularly in the context of Rule 10 of Order I of the

Code, which empowers the court to add both necessary

and proper parties as parties to the suit.

Rule 9, on the other hand, pertains to the dismissal

of a suit. Harmoniously construed, Rules 9 and 10 of

Order I indicate that although a suit cannot be dismissed

for non-joinder of a necessary party, the court is always

empowered, with or without the application of any of the

parties, to implead a party to the suit, who is either

necessary or proper for the complete adjudication of the

suit.

Manmatha Nath Chowdhury (supra) was rendered

in a different context, wherein the Division Bench

categorically held that the claim to pay rent to the lessor

is not extinguished by assignment. However, in the

present case, the reliefs sought are not restricted to rent

in respect of the property but, as a necessary

consequence for alleged non-payment of such rent, to

have a decree of eviction, which would directly affect the

assignees, who are in possession of the suit property.

That apart, specific allegation of fraud has been

pleaded in paragraph nos.11 to 13 of the plaint. Since the

assignees are the beneficiaries of such transactions, the

veracity of which has been challenged on the ground of

fraud, the assignees' prayer for being impleaded in the

suit as defendants cannot be brushed aside as they are at

least proper parties, necessary for effective adjudication of

the lis.

In the present context, if the reliefs sought

pertaining to the plaintiff obtaining vacant and peaceful

possession of the suit property are removed or deleted

from the plaint, the plaint would be rendered ex facie

barred under Section 34 of the Specific Relief Act, 1963,

since the declaration then remaining would be denuded of

the essential consequential pleadings which are

mandated under the said provision.

Since the reliefs regarding obtaining khas and

peaceful possession upon eviction are an integral part of

the prayers made in the plaint, it cannot be said that the

assignees, who are at present in possession of the suit

premises, can be excluded, even upon having applied for

being added as defendants in the suit.

In such view of the matter, the impugned orders,

whereby the prayers of the lessee and the assignees, who

are the respective petitioners in the present applications

under Article 227 of the Constitution of India, was

refused, suffers from patent jurisdictional error and ought

to be set aside.

Accordingly, C.O. 3986 of 2019 and C.O. 1180 of

2018 are allowed, thereby setting aside the orders

impugned therein and impleading the petitioners in C.O.

3986 of 2019 as defendants to the suit, bearing Title Suit

No.25 of 2017, pending in the Small Causes Court at

Sealdah.

Since this order is passed on contest in the

presence of learned counsel for both sides, the date of

this order shall be deemed to be the date of knowledge of

the petitioners in both the suits for the purpose of

calculating the limitation period for filing of written

statements.

The parties as well as the court below shall act on

the written communication of this order by the learned

advocates for the parties, without insisting upon prior

production of a certified copy of this order, and shall act

upon server copy thereof.

It is expected that the trial court shall expedite the

hearing of the suit in view of the long pendency of the

same.

There will be no order as to costs.

Urgent website certified copies of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Sabyasachi Bhattacharyya, J.)