Calcutta High Court (Appellete Side)

Sri Sanat Kumar J Mehta & Ors vs Sri Vinay Kumar Abhani on 14 September, 2022

14.9.2022
    5
Ct. no. 652
   sb
                               C.O. 1758 of 2021


                            Sri Sanat Kumar J Mehta & ors.
                                     Vs.
                             Sri Vinay Kumar Abhani


                   Mr. Probal Mukherjee
                   Mr. D.K. Sengupta
                   Ms. Sweta Saha          ...for the petitioners


                   Mr. Jishnu Chowdhury
                   Mr. Arif Ali         ...for the opposite party



                    Being aggrieved and dissatisfied with the order

              dated 27.1.2021 passed by learned Civil Judge, (Junior

              Division) 6th Court, Alipore in RC no. 305 of 2004, the

              present   application   under    Section    227     of   the

              Constitution of India has been preferred.

                    The opposite party has filed a suit for eviction and

              for a decree of recovery of khas possession of the suit

              premises and mesne profit under the West Bengal

              Premises Tenancy Act 1997 in the year 2004 against the

              petitioners. The petitioners contended that J.K.Meheta,

              the father of the petitioners was inducted as tenant in

              the suit premises in the year 1974. After the death of

              original tenant the petitioner and widow of the original

              tenant, continued to reside in the said premises as joint

              tenants. The opposite party filed the said suit admitting

              them as joint tenants. On the basis of notice dated
                 2




30.12.2002 under Section 6(4) of the Act present suit

was initiated. The petitioners filed written statement and

contesting the suit contending that the petitioners are

joint tenants and the joint tenancy continuing even after

the death of the original tenant and his widow and there

is no scope to deny the joint tenanancy of the petitioners

under the plaintiff/opposite party. During pendency of

the suit, defendant no. 1 i.e. widow of the original tenant

died on 5.2.2016 and her name was duly expunged.

       Now the plaintiff/opposite party has filed an

application under order VI Rule 17 for amendment of the

plaint to the effect that the defendant no. 1 i.e. widow of

the original tenant died on 5.2.2016. Accordingly the

tenancy has been ceased and as such the defendants

have no right to continue in possession as tenants and

on this score the suit should be decreed in favour of the

plaintiff.

       Learned counsel for the petitioner, Mr. Probal

Mukherjee submits that the respondent/plaintiff with

mala fide intention, filed said application for amendment

of the plaint. He submits that opposite party filed the

instant suit against erstwhile defendant no. 1 and also

against the petitioners herein as joint tenants and as

such question of invoking Section 2(g) of the Act of 1997

is not applicable in the present context. The petitioner

also filed written objection against the amendment

petition.

Learned counsel for the petitioner, Mr. Mukherjee

further submits that learned trial court had erroneously

observed that the proposed amendment if allowed will

not change the nature and character of the suit, without

considering the fact that the suit for eviction was filed on

the ground of reasonable requirements which is a rent

control statute and the purported amendment if allowed,

it shall practically change the nature and character of

the suit by transforming the suit into a lis under the

General law. In fact by way of proposed amendment

there would be a change of basic structure of entire suit

and the plaintiff by way of purported amendment is

attempting to invoke Section 2(g) of the Act of 1997 in

order to cease the defendants' tenancy right but same is

not the nature and character of the aforesaid RC no. 305

of 2004. Moreover, the opposite party filed the instant

suit against erstwhile defendant no. 1 and also the

petitioners herein as joint tenants and thus there cannot

be cessation of tenancy only on the ground of death of

erstwhile defendant no. 1 when the suit was instituted

against the joint tenants/defendants/petitioners herein

along with the deceased defendant/widow of the original

tenant. He further contended that the suit was instituted

against the petitioners as joint tenants and not tenant in

common and if the proposed amendment allowed

practically it would make the petitioners defenceless and

alter the entire proceeding and will cause irreparable loss

to the defendants. Accordingly the

defendants/petitioners have prayed for setting aside the

impugned order.

In this context the petitioners relied upon the

Supreme court judgment in Nasima Naki Vs. Todi Tea

Company ltd. & Ors., reported in 2019 SCC OnLine

SC 1601 and also single bench judgment of this court

passed in C.O. 3022 of 2009 in support of the contention

that the defendants are joint tenants and not tenants in

common, upon devolution of tenancy by inheritance.

In this context the learned counsel for the opposite

party, Mr. Jishnu Chowdhury submits that Section 2(g)

of the Act makes it clear that the tenancy right of the

present defendants/petitioners continued only up to five

years after the death of original tenant. However, under

Section 2(g) of the Act of 1997 the widow of original

tenant is given lifetime tenancy right. Accordingly, as per

definition of Section 2(g) with the death of the widow, of

the original tenant on 5.2.2016 there exists no tenancy

right in the suit premises and as such the

defendant/petitioners are liable to be evicted from the

suit premises. In this context the opposite party relied

upon a judgment of this court reported in (2017) SCC

OnLine Cal 1807.

I have heard both the parties at length and

considering the submissions of the parties, at the outset

the definition of tenant as given in Section 2g of the West

Bengal Tenancy Act, 1997 may be reproduced below:

"2(g) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependent on him but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction:

Provided that the time limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises: Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was depedent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose."

In the present context proposed amendment is

imperative for proper and effective adjudication of the

case to determine tenancy right, if any of the petitioners

and there is nothing to show that such prayer for

amendment is made with mala fide intention to defeat

the law and on the contrary refusal of such amendment

may lead to multiplicity of litigations as in that event

principle issue involved in the case shall remain

unsettled for want of pleadings and as I have already

indicated proposed amendment, if allowed will not

change the nature and character of the suit as the suit

will remain a suit for eviction of the petitioners from the

suit premises.

Needless to say under the 1956 Act, after the death

of the original tenant his heirs got tenancy right in

respect of the suit property by way of inheritance but in

the new act of 1997 the right of original tenant have

been curtailed and restricted. However, the moot

question raised in the present context is whether the

proposed amendment is at all required to determine the

real question in controversy between the parties.

The real question in controversy between the

parties is whether the right of tenancy continuing as

joint tenants even after death of defendant no. 1 or they

are liable to be evicted, by operation of law. If the

proposed amendment is allowed the basic nature and

character of the suit will not change as the suit even

after amendment will remain suit for eviction of the

petitioners from suit premises on M/s. Revajeetu

Builders & Developers Vs. M/s. Narayanswami &

Sons & Ors. reported in (2009) 10 SCC 84 Apex Court

laid down certain basic principles which ought to be

taken into consideration while dealing with an

application for amendment.

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

accordingly, such amendment is required to

determine the real question in controversy between by

the parties. Furthermore, in my considered view such

amendment will not cause prejudice to the defendants, if

liberty is given to the opposite party to file additional

written statement to them where they can very well take

the defence of joint tenancy, if not already taken and the

dispute will be adjudicated by the trial court accordingly,

once for all.

Having considered the facts of the case, I do not

find any reason to interference with the impugned order

dated 27.1.2021 passed in RC 305 of 2004.