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2012 Supreme(Cal) 999
IN THE HIGH COURT OF CALCUTTA
Soumen Sen, J.
Amar Bir Anand
Vs.
Dr. Rajaram Jaipuria & Ors.
C.O. No. 3462 of 2012
Decided on : 10th December, 2012
For the Petitioner: Mr. Prabal Mukherjee, Mr. Prasanta Naskar, Mr. Soumendra Mohan Rakshit
For the opposite parties: Mr. Abhrajit Mitra, Mr. S. Mukherjee, Mr. Biswajit Kumar
An application for substitution of plaintiffs under Order 22 Rule 10 of the Code of Civil Procedure is not barred by limitation.
Headnote:
SUBSTITUTION OF PLAINTIFFS - LIMITATION - ORDER 22 RULE 10 OF THE CODE OF CIVIL PROCEDURE - ARTICLE 137 OF THE LIMITATION ACT, 1963 - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(3A) - APPLICABILITY - Whether an application for substitution of plaintiffs under Order 22 Rule 10 of the Code of Civil Procedure is barred by limitation? - Whether the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 restrict institution of a suit or affect a suit already instituted for eviction?
Fact of the Case:
Original plaintiffs filed a suit for eviction. During pendency, the suit property was transferred to opposite party Nos.4 to 7. Original plaintiffs contended that the suit ought to have been transferred to the Small Causes Court, but records were missing and transfer could not be effected. An application was filed for dispatch of the record to the Chief Judge, Small Causes Court, Calcutta. No record could be traced and an application for reconstruction could not be listed. An application was filed in the Original Side of the High Court for transfer of the suit to the Small Causes Court. The respondents consented to an order being passed for reconstruction. An order was passed on 18th May, 2010 upon the original City Civil Court to locate and trace to file and in the event, such records could not be traced, steps to be taken for reconstruction of the said records. The application was disposed of by an order dated 7th July, 2010. In the meantime, an application was filed by the petitioner/defendant No.1 under Section 17(2) of the West Bengal Premises Tenancy Act, 1956. An order was passed on September 19, 2011, directing the defendant to deposit the total arrear rent and interest within one month. Subsequently, an application was filed by the original plaintiffs on 8th February, 2012 for substitution of the plaintiffs by the opposite party Nos.4 to 7 by reason of devolution of interest. The defendant No.1 filed an objection questioning the maintainability of the said application. The learned trial Judge after considering the said objection allowed the said petition by negating the objection raised with regard to limitation.
Finding of the Court:
The Court held that the application for substitution of plaintiffs under Order 22 Rule 10 of the Code of Civil Procedure is not barred by limitation. The provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 do not restrict institution of a suit or affect a suit already instituted for eviction.
Issues: 1. Whether the application for substitution of plaintiffs under Order 22 Rule 10 of the Code of Civil Procedure is barred by limitation? 2. Whether the provisions of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 restrict institution of a suit or affect a suit already instituted for eviction?
Ratio Decidendi: 1. Order 22 Rule 10 of the Code of Civil Procedure does not prescribe any period of limitation for filing an application for substitution of plaintiffs. 2. The right to apply under Order 22 Rule 10 of the Code of Civil Procedure is a continuous right which accrues everyday. 3. Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 does not restrict institution of a suit or affect a suit already instituted for eviction.
Final Decision: The Court dismissed the revisional application filed by the petitioner.
Soumen Sen, J.
This revisional application is arising out of an order passed by the learned Judge, 2nd Court, Presidency Small Causes Court, Calcutta in Ejectment Suit No.13 of 2011 by which the application filed by the plaintiff under Order 22 Rule 10 of the Code of Civil Procedure was allowed by the learned trial Judge. The original plaintiff instituted a suit for eviction. During the pendency of the suit, the suit property was transferred in favour of the opposite party Nos.4 to 7 by a deed of conveyance executed on 11th November, 2006.
2. The original plaintiff contended that both the Ejectment Suit was filed in 1993 and ought to have been transferred to the Small Causes Court, Calcutta since the records were missing, the said transfer could not be effected. An application was also filed in June, 2007 for dispatch of the record of the said suit to the learned Chief Judge, Small Causes Court, Calcutta with a prayer that in the event the suit records could not be traced to pass appropriate orders for reconstruction of the said record. No record, however, could be traced and in view of absence of such record, an application for reconstruction could not be listed. With such grievance, an application was filed in the Original Side of this Court being ALP NO.20 of 2010 for transfer of the said suit to the Small Causes Court. In the said application, the respondents consented to an order being passed for reconstruction. Accordingly, an order was passed on 18th May, 2010 upon the original City Civil Court to locate and trace to file and in the event, such records could not be traced, steps to be taken for reconstruction of the said records. The said application was finally disposed of by an order dated 7th July, 2010 after taking into consideration that in view of the amendment to the West Bengal Premises Tenancy Act, Small Causes Court retains the jurisdiction to decide the suit and the original City Civil Court was directed to take appropriate steps for reconstruction of the records in order to facilitate expeditious disposal of the suit. In the meantime, an application was filed by the petitioner/defendant No.1 under Section 17(2) of the West Bengal Premises Tenancy Act, 1956, in which an order was passed on September 19, 2011, the relevant portion is set out herein-below:-
“Order No.19 dated 07.09.2011
Learned Advocates for both sides are present. Today is fixed for hearing of the petition under Section 17(2) of the W.B.P.T. Act. The case record is taken up for hearing accordingly. Today, both sides have filed a Joint Statements of Accounts stating the arrear of rents and interest thereon and further submitted before this Court that the petition under Section 7(2) may be disposed of on the basis of such Joint Statement of Accounts.
As per Joint Statements of Accounts, till date the total arrear rents is Rs.760/- and the statutory interest thereon is Rs.760/- totaling Rs.1520/-.
In view of the submission of both sides and in view of the Joint Statements of Account filed this day, the petition under Section 17(2) of the W.B.P.T. Act is hereby disposed of holding that uptill July, 2011, total arrear rent is Rs.760/-and statutory interest thereon is Rs.760/-, totaling Rs.1520/-.
Defendant is hereby directed to deposit the said sum of Rs.1520/-towards arrear rent along with interest within one month from this date.
Fix 13.12.2011 for framing issues.”
3. The relationship of landlord and tenant does not appear to have been disputed by the petitioner in the said proceeding. However, there is no doubt that prior to the disposal of the said application, there has been a devolution of interest and transfer of ownership in favour of the opposite party No.4 to 7. Subsequently, an application was filed by the original plaintiffs on 8th February, 2012 for substitution of the plaintiffs by the said opposite party Nos.4 to 7 by reason of devolution of interest. Such an application was filed under Order 22 Rule 10 of the Code of Civil Proce
