Back
High Court Of Calcutta
SAMARESH BANERJEE, PRATAP KUMAR RAY
MATA BADAL SHAW - Appellant
Versus
ASUTOSH PAUL - Respondent
F. M. A 512 Of 1989
Decided On : 04/26/2001
ORDER 9 RULE 13, CIVIL PROCEDURE CODE - APPLICATION FOR SETTING ASIDE EX PARTE DECREE - JOINT TENANCY - AMENDMENT OF APPLICATION - MAINTAINABILITY - TENANCY FOUND NOT TO BE JOINT TENANCY BUT IN FAVOR OF ONE PERSON - APPLICATION NOT MAINTAINABLE.
Fact of the Case:
The appellant filed an appeal against the order of the trial court rejecting their application under Order 9, Rule 13 of the Code of Civil Procedure (CPC) to set aside an ex-parte decree in an ejectment suit. The appellant claimed that the tenancy in question was a joint tenancy between Mata Badal Shaw and Banwarilal Shaw, and that the application was filed by both of them. However, the trial court found that the tenancy was not a joint tenancy, but was in favor of Mata Badal Banwarilal Shaw, and that the application was not maintainable as it was not filed by the tenant/defendant.
Finding of the Court:
The High Court agreed with the trial court's finding that the tenancy was not a joint tenancy, but was in favor of Mata Badal Banwarilal Shaw. The Court also agreed that the application under Order 9, Rule 13 was not maintainable as it was not filed by the tenant/defendant.
Issues: 1. Whether the tenancy in question was a joint tenancy between Mata Badal Shaw and Banwarilal Shaw? 2. Whether the application under Order 9, Rule 13 was maintainable?
Ratio Decidendi: 1. The Court held that the tenancy was not a joint tenancy, but was in favor of Mata Badal Banwarilal Shaw, based on the evidence presented, including rent receipts, pleadings, and witness testimonies. 2. The Court held that the application under Order 9, Rule 13 was not maintainable as it was not filed by the tenant/defendant, Mata Badal Banwarilal Shaw, but by other persons claiming to be joint tenants.
Final Decision: The High Court dismissed the appeal and affirmed the trial court's order rejecting the application under Order 9, Rule 13.
( 1 ) THE present appeal has been preferred against the Order no. 81 dated September 20,1988 passed in misc. case No. 972 of 1983 whereby the learned Judge, 11th Bench, City Civil Court at Calcutta has rejected the application under order 9, Rule 13 of the Code of Civil Procedure filed on 24th of August, 1983 for setting aside the ex-parte decree dated June 29, 1983 passed in Ejectment Suit No. 10 of 1982.
( 2 ) THE Ejectment Suit No. 10 of 1982 was filed by Sri Asutosh Paul, the respondent before us against Sri Mata Badal Banwarilal shaw alias Mata Badal Shaw alias M. B. Shaw son of late Mahesh Ram Shaw.
( 3 ) THERE is no dispute that the landlord asutosh Paul let out the suit premises being no. 35a, Bechu Chatterje Street, Calcutta to the said tenant Mata Badal Banwarilal Shaw and the rent receipts were also issued in favour of Mata Badal Banwarilal Shaw.
( 4 ) ADMITTEDLY, the suit was decred ex parte and, therefore, the said tenant Mata badal Banwarilal Shaw made an application under Order 9, Rule 13 of the Code of Civil procedure for setting aside the ex parte decree.
( 5 ) ADMITTEDLY, an application for amending the aforesaid application under Order 9, rule 13 was made under Order 6, Rule 17 of the Code of Civil Proceedure. In the said application, it was alleged that at the time of leading the evidence in the said misc. Case, it was ascertained that the petitioners Mata Badal Shaw and Banwarilal Shaw are two individual persons who took tenancy jointly under the plaintiff and as such the petitioners Mata Badal Shaw and Banwarilal Shaw are the joint tenants under the landlord in respect of the premises in question. It was further alleged in the said application that both such petitioners Banwarilal Shaw and Mata Badal Shaw are relations of each other and they used to carry on business in partnership before the inception of tenancy and also after the creation of the tenancy, but due to hot haste and due to bona fide mistake and/or inadvertence the petitioners described themselves as Mata Badal Banwarilal Shaw in the cause title of the petition under Order 9, rule 13 of the Code of Civil Procedure as it was described in the aforesaid Ejectment Suit and such mistake being purely unintentional the same should be allowed to be amended. It was, therefore, prayed that the cause title of the application under Order 9, Rule 13 of the Code of Civil Procedure be amended and the name of the petitoners in the said application be deleted and be substituted by the name (1) Mata Badal Shaw, (2) Banwarilal Shaw all of 35a, Bechu Chatterjee Street, Calcutta. It was further prayed that a new paragraph be added being 12 (a) to the application under order 9, Rule 13 averring that the petitioners took the aforesaid tenancy as joint tenants which facts will be evident from the rent receipts issued in favour of the joint tenants. The affidavit to the said application was affirmed by Mata Badal Shaw son of Mahesh ram Shaw.
( 6 ) THE said prayer for amendment was seriously objected to by the landlord. The said application for amendment was disposed of by the Trial Court by Order No. 16 dated 23rd may, 1987. By the said order although the application for amendment was allowed, the same was made subject to objection to be taken at the time of final hearing of Order 9, Rule 13 of the Code of Civil Procedure. Ultimately by Order No. 67 dated 29 of July, 1987, the application under Order 9, Rule 13 of the Code of Civil Procedure being Misc. Case No. 972 of 1983 was allowed without however, taking into consideration the effect of the earlier order by which the application for amendment was allowed subject to the observation made therein.
( 7 ) THE present appellant moved a revisional application in the High Court being c. O. No. 2409 of 1987 against the said order wherein one of the specific grounds taken by the Division Bench was that the Court below by Order No. 61 dated 23rd May, 1987 allowed the application for amendment
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
