Back
2010 Supreme(Cal) 199
High Court Of Calcutta
Jyotirmay Bhattacharya, J.
Mohammad Salim Khan : Appellant
Versus
Jaspal Singh Chandak : Respondent
C.O. No.3709 of 2009 CAN 1362 of 2010
Decided On : Feb 25,2010
Jahar Chakraborty, Goutam Kr.Das, Sabita Mukharjee, P.K.Das, Mrinal Kanti Chatterjee, Sambhu Nath Dutta, Somali Mukhopadhyay
A plaintiff cannot challenge the validity of a sale deed in the absence of the vendors as defendants.
Headnote:
AMENDMENT OF PLAINT - TENANCY RIGHTS - REJECTION - Locus Standi - INCIDENTAL RELIEF - ABATEMENT OF SUIT - ADDITION OF PARTIES - CIVIL PROCEDURE CODE, ORDER 1 RULE 10(2), ORDER 22 RULE 9: 1. A plaintiff cannot challenge the validity of a sale deed in the absence of the vendors as defendants. 2. An amendment to a plaint cannot be allowed if it alters the basic structure of the suit or if the plaintiff lacks the necessary locus standi. 3. If a suit abates as to a defendant, the plaintiff cannot add the legal heirs of that defendant as parties under Order 1 Rule 10(2) of the Code of Civil Procedure until the abatement is set aside under Order 22 Rule 9 of the Code of Civil Procedure.
Fact of the Case:
The plaintiff filed a suit for declaration of his tenancy right under the proforma defendant no.4 in respect of the suit property. The plaintiff also sought an injunction restraining the defendants from disturbing his possession. The suit abated as to the proforma defendant no.4 due to her death. The plaintiff then filed an application for amendment of plaint, seeking to challenge the validity of a sale deed through which the defendant nos.2 and 3 claimed title to the suit property, and to add the legal heirs of the proforma defendant no.4 as parties to the suit. The trial court rejected the plaintiff's application.
Finding of the Court:
The High Court held that the plaintiff lacked the necessary locus standi to challenge the validity of the sale deed, as he was not a party to the deed and his alleged interest in the suit property as a tenant would not be affected by the transaction. The Court also held that the plaintiff could not add the legal heirs of the proforma defendant no.4 as parties to the suit, as the suit had abated as to her and the abatement had not been set aside.
Issues: 1. Whether the plaintiff had the necessary locus standi to challenge the validity of the sale deed. 2. Whether the plaintiff could add the legal heirs of the proforma defendant no.4 as parties to the suit after the suit had abated as to her.
Ratio Decidendi: 1. A plaintiff cannot challenge the validity of a sale deed in the absence of the vendors as defendants. 2. An amendment to a plaint cannot be allowed if it alters the basic structure of the suit or if the plaintiff lacks the necessary locus standi. 3. If a suit abates as to a defendant, the plaintiff cannot add the legal heirs of that defendant as parties under Order 1 Rule 10(2) of the Code of Civil Procedure until the abatement is set aside under Order 22 Rule 9 of the Code of Civil Procedure.
Final Decision: The High Court dismissed the plaintiff's revisional application, upholding the trial court's rejection of the plaintiff's application for amendment of plaint and addition of parties.
1. THIS application under Article 227 of the Constitution of India is directed against a common order being No.149 dated 10th September, 2009 by which two different applications filed by the plaintiff were rejected by the learned Trial Judge on contest. In one of such applications, the plaintiff prayed for amendment of his plaint. In the other application the plaintiff prayed for addition of the legal heirs and legal representatives of proforma defendant no.4 against whom the suit abated as will appear from the order recording abatement on 25.2.2005. The plaintiff is aggrieved by the said order. Hence, the instant application has been filed before this Court by the plaintiff/petitioner.
2. HEARD Mr. Das, learned Senior Counsel appearing for the petitioner and Mr. Chakroborty, learned Counsel appearing for the opposite party. Considered the materials on record including the order impugned.
Let me now consider as to how far the learned Trial Judge was justified in rejecting the petitioners said application in the facts of the instant case. Re: Plaintiffs application for amendment of plaint. On perusal of the impugned order, this Court finds that this part of the impugned order is absolutely a non-speaking order. Though the learned Trial Judge recorded the submissions of the respective parties with regard to the merit of the plaintiffs application for amendment of plaint, but not a single sentence has been spent by the learned Trial Judge to discuss the merit of the plaintiffs said application. After recording the submissions of the parties and the decisions cited at the Bar, the learned Trial Judge abruptly came to the conclusion that the application deserves dismissal.
3. ACCORDINGLY, the same was rejected. Such an order should be deprecated in all possible manner. Under such circumstances, this Court could have remanded the said application back to the said Trial Judge for reconsideration after setting aside the impugned order, but instead of doing so this Court thinks that justice will be subserved if the said application is decided by this Court on merit, as such disposal will minimize the sufferance of the parties the and delay which may be caused further due to such remand may be avoided.
4. LET me now consider the original pleading of the plaintiff and the proposed amendment which he is seeking to introduce therein, for ascertaining as to whether such amendment is necessary or not for complete adjudication of the dispute involved in the suit. The plaintiff filed a suit for declaration of his tenancy right under the proforma defendant no.4 in respect of the suit property having his right, title, interest and possession thereof with a further declaration that the defendants and neither of them has any manner of right to disturb the possession of the plaintiff and the members of his family in the suit property. The plaintiff has also prayed for a permanent injunction for restraining the defendants and/or their men and agents from disturbing the peaceful possession of the plaintiff and the members of his family in the suit property.
The plaintiff stated in the plaint that the plaintiff is a monthly tenant under the proforma defendant no.4 in respect of the suit premises which is situated on the western portion of the premises no.11A, Bow Street, P.S. Bowbazar at a monthly rental of Rs.480/- payable according to the English calendar month.
5. IT was further stated therein that the defendant no.1 is in occupation of the second floor of the eastern portion of the said premises. The defendant no.1 is the father of the defendant nos.2 and 3. The defendant no.1 is a man of desperate and dangerous character and he along with his 4 associates are trying to forcibly evict the petitioner from his tenancy. But the proforma defendant no.4, did not take any effective step though she was informed about those illegal acts of the defendants repeatedly. Hence, the instant suit was filed. Immediately after filing the said suit the plain
