Calcutta High Court
Sukhlal Chandanmull (P) Ltd vs Harrow Hall on 7 November, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 8 of 2023
In
CS No. 364 of 2014
Sukhlal Chandanmull (P) Ltd.
Versus
Harrow Hall
Mr. Sabyasachi Choudhury
Mr. Neelesh Choudhury
Mr. Biswanath Chatterjee
Mr. Shounak Mukhopadhyay
Ms. Anuradha Poddar
... For the plaintiff.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Rohit Banerjee
Mr. Altamash Alim
... For the defendant.
Mr. Sudip Deb
Ms. Smrutirekha Das
Ms. Ipsita Ghosh
... For the applicant in GA/8/2023.
2
Hearing Concluded On : 05.09.2024
Judgment on : 07.11.2024
Krishna Rao, J.:
1. The applicant, namely, Merlyn Armstead has filed the present
application being G.A. No. 8 of 2023 praying for add the applicant as
defendant no. 2 in C.S. No. 364 of 2014.
2. Mr. Sudip Deb, Learned Advocate representing the applicant submits
that the applicant is the niece of Mrs. L.D. Armstead, since deceased
and the sole legal heir of Mrs. L.D. Armstead. As per the case of the
applicant, in the year 1972, Mr. B.K. Karnani has permitted Mrs. L.D.
Armstead to run a school for the purpose of imparting education to the
under privileged children of the Christian community. Initially two
rooms were given and due to increase of students, additional rooms
were provided. The name of the school was given as "Harrow Hall" by
the said Mrs. L.D. Armstead.
3. Mr. Deb submitted that in the month of May, 1987, Mrs. L.D. Armstead
formed a Society under the name and style of "Harrow Hall" and the
school was also registered under the West Bengal Societies Registration
Act for the better administration. He submits that the understanding
between Mr. B.K. Karnani and Mrs. L.D. Armstead, she will be the
tenant and the entire negotiation and discussions for the school will be
made with her. He submits that it was further understanding between
Mr. B.K. Karnani and Mrs. L.D. Armstead that the rent bills will be
issued in the name of Harrow Hall from 1982 till 2014, but in effect,
Mrs. L.D. Armstead will be the tenant as proprietor of the said school.
He submits that still the Harrow Hall is a proprietorship concern.
4. Mr. Deb submitted that Mrs. L.D. Armstead was all throughout in
possession of the suit premises. The school was her own creation and
she had given a name of the school as Harrow Hall. He submits that the
applicant has also filed a suit being Title Suit No. 304 of 2022 against
the plaintiff and others before the Learned Court of 5th Bench, City Civil
Court praying for declaration that Mrs. L.D. Armstead was tenant in
respect of the suit property which is the same property in respect of
which the eviction has been sought for in the present suit. He submits
that after the death of Mrs. L.D. Armstead, the applicant has stepped
into the shoes of Mrs. L.D. Armstead.
5. Mr. Deb submitted that in the suit filed by the applicant before the
Learned Court of 5th Bench, City Civil Court, the plaintiff has filed an
application under Section 10 of the Code of Civil Procedure, 1908
wherein the plaintiff had admitted the fact that from the pleadings of
the two suits, some of the issues are directly and substantially the
same in both suit and one of the such issue is the role of Mrs. L.D.
Armstead in the suit property.
6. Mr. Deb submits that the applicant is having direct interest in the suit
and if the suit is decreed, the applicant will be evicted. He submits that
the suit filed by the applicant is still pending for adjudication and the
applicant has no objection to if the suit filed by the applicant which is
pending before the Learned 5th Bench, City Civil Court is transferred to
this Court for hearing analogously.
7. Mr. Deb submitted that the applicant came to know that about the
present suit when the plaintiff has filed an application on 4th May, 2023
and immediately, the applicant has filed the present application. He
submits that the applicant is having direct interest in the suit property
and the applicant would be seriously prejudiced and would suffer
irreparable loss and injury if any adverse order is passed against the
applicant in the suit.
8. In support of his submissions, Mr. Deb Relied upon the following
judgments:
i. AIR 1958 SC 886 (Razia Begum Vs. Sahebzadi
Anwar Begum and Others).
ii. (2017) 1 SCC 568 (IDBI Trusteeship Services
Limited Vs. Hubtown Limited).
9. Mr. Sabyasachi Choudhury, Learned Advocate representing the plaintiff
submits that the only receipt relied by the applicant would show that
the same is in the name of Harrow Hall and not in the name of Mrs.
L.D. Armstead. He submits that as per the case of the applicant, the
applicant inherited her estate and Harrow Hall continues to run from
the said premises but the receipt shows that Harrow Hall School is the
tenant, who has paid the rent of Rs. 20,000/- by cheque date 23rd April,
2014. He further submits that the applicant admits that Harrow Hall
Society is a separate entity.
10. Mr. Choudhury submitted that in Title Suit No. 304 of 2022, the
applicant as well as the Harrow Hall School are the plaintiffs and
prayed for declaration in favour of L.D. Armstead as a tenant in respect
of the suit property in her individual capacity and have also prayed for
a declaration that the Harrow Hall Society never inducted nor enjoyed
the suit property as tenant, thus the stand taken by the applicant is
destructive and afterthought.
11. Mr. Choudhury submitted that in the written statement, filed in the
present suit, the defendant Harrow Hall Society admitted that the
society was to hold possession of the rooms for the purpose of
imparting education to the poor members and Harrow Hall also
admitted that an amount of Rs. 5,000/- was paid by the Society,
Harrow Hall to B.K. Karnani as rent.
12. Mr. Choudhury submitted that it is further admitted in the written
statement that Harrow Hall, being the defendant started paying a sum
of Rs. 20,000/- per month to Sukhlal Chandanmull (P) Ltd. being the
plaintiff, who in turn used to issue rent receipts. He submits that when
Harrow Hall School is claiming its right as a Society and as a tenant in
the suit property following from Mrs. L.D. Armstead, the question of the
applicant who is an heir of Mr. L.D. Armstead, having an independent
right, therefore, does not and cannot arise.
13. Mr. Choudhury submitted that the applicant has filed the present
application after the period of 9 years from filing the suit is nothing but
to delay the suit filed by the plaintiff. He submits that Harrow Hall
cannot take inconsistent pleas in the written statement and in the suit
filed before the City Civil Court at Calcutta.
14. Mr. Choudhury in support of his submissions relied upon the case of
Devi Sahai Palliwal Vs. Union of India & Another reported in
(1976) 4 SCC 763.
15. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the parties. The
question in the present application whether the applicant can be added
as defendant no.2 in the suit filed by the plaintiff being C.S. No. 364 of
2014. The plaintiff has filed the present suit against Harrow Hall
praying for the following reliefs:
a. Decree for eviction and recovery of khas
possession of the suit property morefully
described in Annexure "A" hereto against the
defendant;
b. Decree for a sum of Rs. 20,000/- on account of
arrear rent for the month of June, 2014 in
terms of paragraph 13 above;
c. Decree for mesne profit for Rs. 20,00,000/- for
the period of 12th July, 2014 till 11th
September, 2014 in terms of paragraph 13
above;
d. Mesne profit at the rate of Rs. 100/- per sq. ft.
per month on and from 12th September, 2014
untill recovery of actual possession and/or in
the alternative, an enquiry into mesne profit
and a decree for such sum as may be, due
and payable upon such enquiry;
e. Injunction;
f. Receiver;
g. Costs;
h. Further or other reliefs.
16. The applicant, namely, Merlyn Armstead along with Harrow Hall School
filed another suit being Title Suit No. 304 of 2022 before the Learned
Judge, 5th Bench, City Civil Court, Calcutta against the plaintiff and
Harrow Hall Society as proforma defendants praying for the following
reliefs:
a. Decree of Declaration that Mrs. L.D.
Armstead was a tenant in respect of the
suit property in her individual capacity till
her death;
b. Decree for declaration that the plaintiffs are
a tenant in respect of the suit property;
c. Decree for declaration that the said society,
namely Harrow Hall, was never inducted
in nor its enjoyed the suit property as
tenant thereof;
d. Decree for declaration that the Tenancy in
respect of the suit property was never
surrendered by said Mrs. L.D. Armstead by
writing or by necessary implication;
e. Decree of permanent injunction restraining
the defendants, their men and agents and
all persons acting through, under or in trust
for them, jointly and for severally, from in
any manner evicting the plaintiffs from the
suit property without due process of law;
f. Receiver;
g. Costs and incidentals of the suit;
h. Such other or further relief to which the
plaintiff be entitled to in equity and under
the law.
17. The contention of the applicant is that Mrs. L.D. Armstead was
throughout in possession of the suit property and the School was her
own creation and the applicant has already filed a suit for declaration
that Mrs. L.D. Armstead was the tenant of the suit property. The
Harrow Hall is contesting the suit filed by the plaintiff by filing written
statement wherein the defendant has taken different stand which reads
as follows:
"7. That at the time, in the early 1970, when
the said 2 rooms, were handed over to Mrs.
Armstead, by the said Mr. B.K. Karnani, he made it
clear to Mrs. Armstead, that the society was to hold
possession of the said rooms, for the purpose of
imparting education to the poor members of the
Christian community, since at that time there was
no English Medium, school in Central Calcutta,
which was available to the said segment of society.
In fact Mr. B. K. Karnani made it clear to Mrs.
Armstead and to Mr. Andrea Ireland that not only
was no rent to be paid for the said rooms, but that
when the adjoining rooms at 27B, Park Street,
became vacant Mrs. Armstead could take
possession of them.
15. That sometime in the 1990s. Mr. B.K.
Karnani, informed Mrs. L. D. Armstead, now
deceased, that problems had risen with regards to
Municipal Rates and Taxes, in respect of premises
No. 27B, Park Street and requested Mrs. Armstead,
to pay some amount, to Sukhlal Chandanmull (P)
Limited, which would be shown as rent. Infact Mr.
B.K. Karnani expressed that such payment was
required to be shown for the purpose of the
municipal valuation of the premises. Accordingly a
token amount of Rs. 5,000/- was paid by the
society. Harrow Hall School, to Mr. B.K. Karnani,
as rent for the rooms already in the possession of
Mrs. Armstead, and for which rent receipts used
to be issued by Mr. Karnani, in the name of
Chandanmull (P) Limited. It may be stated that one
rent receipt used to be issued, though there were, a
number of tenancies, with regards to the various
rooms in the possession and occupation of the
defendant. Since it was the intention of Mr. B. K.
Karnani to receive rent and issue rent receipts, only
as evidence for the Municipal Authorities, the
question that the rooms in question had been
acquired by the defendant, over a period of time, no
reflection was made in the rent receipts, as to the
amount, that was being paid rent, for the individual
rooms.
16. That in or about July 2009, the office
bearers of Harrow Hall School was approached by
the directors of Karnani Properties Limited, Sukhlal
Chandanmull (P) Limited and Park Street Properties
Ltd., who requested Harrow Hall, being the
defendant, to pay monthly a sum of Rs. 20,000/-
which would be shown as rent, since following the
changes in the tenants of a number of large
shopping spaces, in Karnani Mansion, alongside
the main road, the Municipal Authorities had
started making enquiries regarding the amount
that was paid as rent by various parties and it
would not be believed that Harrow Hall was
paying only a rent of Rs. 5,000/-. However Mr. C.
K. Karnani, the son of Mr. B. K. Karnani, assured
the members of the managing committee of the
defendant, that he would continue to give effect to
the commitment of his father, that the defendant
could run the school, in the premises in question,
without paying rent and that the payment that was
being made, only for the time being and only for the
purpose of evidence, for the Municipal Authorities.
Indeed Mr. C. K. Karnani made it clear to the
members of the managing committee of the
defendant that the status of the defendant would
not change as a result of the increase of rent, in as
much as the rent receipts, that were already being
issued, showed that the defendant was a tenant in
respect of two separate tenancies i.e. 1st and 2nd
floor. Since Harrow Hall, being the defendant, did
not want the directors of the said company to fall
into any problem, Harrow Hall, being the
defendant, started paying a sum of Rs. 20,000/-
per month to Sukhlal Chandanmull (P) Limited,
being the plaintiff, who in turn used to issue rent
receipts, as stated above."
The defendant, namely, Harrow Hall in the written statement has
taken a specific stand that the defendant is in possession of the
property and has paid rent to the plaintiff and the rent receipt also
established that the defendant has paid rent to the plaintiff.
In the suit filed by the applicant in prayer (a) prayed for
declaration that L.D. Armstead was the tenant of the suit property in
her individual capacity and in prayer (c) prayed for declaration that the
Society, Harrow Hall never inducted in nor enjoyed the Suit property as
tenant. If both prayers of the suit filed by the applicant, the case made
out by the applicant in the present application and the written
statement filed by the defendant in the present suit are read together,
the case made out by the applicant is destructive.
18. The contention that the plaintiff in the application filed under Section
10 of the Code of Civil Procedure, 1908, the plaintiff has admitted that
the pleadings of both the suits are same, issues are directly and
substantially the same and one of such issue is the role of Mrs. L.D.
Armstead in the suit property. The Harrow Hall in the written statement
has disclosed its defense by claiming its right as a Society and as a
tenant in the suit property. It is admitted by the defendant that the
defendant has paid monthly rent to the plaintiff and the receipt is also
disclosed to show that the defendant has paid rent to the plaintiff as
tenant and thus it cannot be said that in the application filed by the
plaintiff under Section 10 of the Code of Civil Procedure, 1908, the
plaintiff has admitted the role of Mrs. L.D. Armstead in the present suit.
19. As regard to the submission that the applicant would be prejudiced if
the decree is passed against the Harrow Hall, it is the admitted case of
Harrow Hall that they are in possession of the suit property and are
running School. It is the specific case of the plaintiff that the plaintiff by
a notice dated 25th June, 2014, terminated the tenancy of the
defendant. It is not the case of the defendant that they are not the
tenant. The applicant has not satisfied this Court that the applicant has
direct interest over the property, thus the stand taken by the applicant
cannot sustain.
20. The judgment relied by the applicant in the case of Razia Begum
(supra) is not applicable in the case of the applicant as in the said case,
it is categorically held that the person may be added as party, if he
should have direct interest or is necessary for proper adjudication of the
case but in the present case, taking into consideration of the contention
of the applicant in the present application, prayer made in her suit and
the stand taken by the defendant in the present suit, this Court did not
find that the applicant is having any direct interest or is necessary
party for the proper adjudication of the case.
21. The judgment relied by the applicant in the case of IDBI Trusteeship
Services Limited (supra) is also not applicable in the case of the
applicant. The plaintiff has already filed an application under Chapter
XIIIA of the Original Side Rules of this Court against the defendant,
Harrow Hall. The judgment relied by the applicant is not applicable in
the case of the applicant as the applicant is neither the party to the suit
nor it can raised any defense without being added as party to the suit.
22. The original Power of Attorney submitted by the applicant be returned
to the applicant on proper receipt.
23. In view of the above, G.A. No. 8 of 2023 is dismissed.
(Krishna Rao, J.)
