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IN THE HIGH COURT AT CALCUTTA
Partha Sakha Datta, J.
Debasis Basu
vs.
Prasanta Paul
C.O. No. 1158 of 2009
Decided On: May 14, 2009
PARTIES - IMPLEADING AS PROFORMA DEFENDANTS - ORDER 1 RULE 10(2) CPC - Whether the State of West Bengal and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, are necessary or proper parties in a suit for declaration that a purported document dated 12th June, 1996 in respect of the suit property is void and not binding upon the plaintiff, that in terms of lease deed dated 19th March, 1996 the plaintiff has no right or authority to assign and for transfer and/or part with possession of the suit property to any third party including the defendant /O.P., and for permanent injunction to restrain the O.P. from raising any construction on the suit property or portion thereof.
Fact of the Case:
The plaintiff filed a suit for declaration that a purported deed of assignment dated 12th June, 1996 in respect of the suit property is void and not binding upon the plaintiff, that in terms of lease deed dated 19th March, 1996 the plaintiff has no right or authority to assign and for transfer and/or part with possession of the suit property to any third party including the defendant /O.P., and for permanent injunction to restrain the O.P. from raising any construction on the suit property or portion thereof. During the pendency of the suit, the plaintiff filed an application under Order 1 Rule 10(2) read with section 151 CPC praying for making the State of West Bengal represented by the Collector of North 24-Parganas at Barasat and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, as, proforma defendants in the suit on the ground that the property is a leasehold land measuring approximately 10.12365 Cottahs at Plot No.33, Block-DN, Sector-V, Bidhannagar in the district of North 24-Parganas and it was allotted by the State of West Bengal for promotion of his business, and since the land in dispute belongs to the Urban Development Department their presence is very much required as the said authority has to be aware of the fact that the defendant/O.P. is a rank trespasser having no connection with or title over the disputed land. Thus the said two person ought to be impleaded in the suit for proper adjudication of the dispute between the parties more particularly when the Urban Development Authority is virtually the owner of the land who allotted the land to the present plaintiff.
Finding of the Court:
The court held that the State of West Bengal and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, are proper parties in the suit, as their presence in the adjudication of the dispute between the parties will help prevent generation of future legal complications or future litigation either between the plaintiff and the State of W.B. or between the State of W.B. and the O.P.
Issues: Whether the State of West Bengal and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, are necessary or proper parties in the suit.
Ratio Decidendi: The court relied on the following principles: - Whether the plaintiff does not allege any action purported to have been done by the State or its officer in discharge of their official duties, no .notice under section 80 CPC is necessary upon them. - The State's presence in the adjudication of the dispute between the parties will help prevent generation of future legal complications or future litigation either between the plaintiff and the State of W.B. or between the State of W.B. and the O.P.
Final Decision: The court allowed the appeal and set aside the impugned order dated 23rd March, 2009 passed by the learned Civil Judge (Senior Division), 2nd Court, North 24-Parganas at Barasat in Title Suit No. 214 of 2007. The application under Order 1 Rule 10(2) CPC stands allowed.
Partha Sakha Datta, J.: The petitioner as plaintiff instituted a Title Suit No.214 of 2007 before the learned Civil Judge (Senior Division), 2nd Court, Barasat against the O.P. praying for declaration that a purported document dated 12th June, 1996 in respect of the suit property is void and not binding upon the plaintiff, that in terms of lease deed dated 19th March, 1996 the plaintiff has no right or authority to assign and for transfer and/or part with possession of the suit property to any third party including the defendant /O.P., and for permanent injunction to restrain the O.P. from raising any construction on the suit property or portion thereof. During the pendency of the suit an application was taken out before the learned Judge in the Trial Court under Order 1 Rule 10(2) read with section 151 CPC praying for making the State of West Bengal represented by the Collector of North 24-Parganas at Barasat and an Officer on Special Duty and Ex Officio Deputy Secretary, Government of West Bengal, Urban Development Department, as, proforma defendants in the suit on the ground that the property is a leasehold land measuring approximately 10.12365 Cottahs at Plot No.33, Block-DN, Sector-V, Bidhannagar in the district of North 24-Parganas and it was allotted by the State of West Bengal for promotion of his business, and since the land in dispute belongs to the Urban Development Department their presence is very much required as the said authority has to be aware of the fact that the defendant/O.P. is a rank trespasser having no connection with or title over the disputed land. Thus the said two person ought to be impleaded in the suit for proper adjudication of the dispute between the parties more particularly when the Urban Development Authority is virtually the owner of the land who allotted the land to the present plaintiff.
2. The learned Judge in the Trial Court by order dated 23rd March, 2009 rejected the petition on the ground that at the time of filing of the suit the names of the parties proposed to be added as proforma defendants were there but they have been eliminated, and now the plaintiff/petitioner wanted to implead them which is not tenable. The second ground of rejection is that without notice under section 80 of the CPC the State Cannot be impleaded as party to the suit.
3. Mr. Amal Sen, learned Counsel for the petitioner/plaintiff argued that on the strength of a purported deed of assignment the defendant intended to encroach upon the land of the plaintiff/'petitioner and is in the attempt to raise construction thereon. According to the plaintiff, the said deed of assignment is a fabricated one and not binding on the plaintiff. Yes, there was an initial thought that the State of West Bengal and the officer in the Urban Development Department should be made proforma defendants but they were not so made; but now it transpires that they are proper parties, though necessary parties, in presence of whom there should be adjudication of the dispute between the plaintiff and the defendant in respect of the subject matter of the suit. According to Mr. Sen, the owner of the property is the State of West Bengal which granted leasehold interest in favour of the plaintiff/petitioner and as the law now stands a lessee in the leasehold property has no authority to create a purported assignment in favour of the defendant/petitioner. The petitioner's case is that the purported deed of assignment allegedly standing in favour of the defendant is void and fabricated. Therefore, the presence of the State of West Bengal and the competent officer in the Urban Development Department is necessary for adjudication of the dispute and to prevent any further future litigation in which the State might be interested or badly affected. It is the submission of Mr. Sen that the learned Trial Court was wrong in holding that a notice under section 80 CPC is necessary against the State because no relief has been claimed as against the State
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