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2016 Supreme(Cal) 634
IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, J.
Nabanita Belel - Petitioner
Versus
Aruna Chakraborty & Ors. - Opposite Parties
C.O. 1999 of 2016 With C.O. 4405 of 2016
Decided On : 14-12-2016
For the Petitioner: Mr. S. P. Roy Chowdhury, Mr. Kaushik Dey.
For the Opposite Party : Mr. Siva Prasad Ghose.
In an eviction suit against a statutory tenant, only those heirs who were ordinarily residing with the tenant at the time of his death are required to be impleaded, and the doctrine of representation can be applied only if the estate of the tenant is sufficiently represented by the heirs who have been impleaded.
Headnote:
EVICTION SUIT - ADDITION OF PARTY - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 2(H) - DOCTRINE OF REPRESENTATION - NECESSARY AND PROPER PARTY - SUFFICIENCY OF STATEMENTS IN APPLICATION - IMPLICATION OF UNCONTROVERTED STATEMENTS - APPLICABILITY OF DOCTRINE OF NON-TRAVERSE.
Fact of the Case:
The petitioner, claiming to be one of the heirs of the original tenant, sought to be added as a defendant in an eviction suit. The Trial Court rejected her application, relying on the doctrine of representation and holding that the estate of the tenant was sufficiently represented by the other heirs who had been impleaded. The petitioner challenged this order in revision.
Finding of the Court:
The High Court allowed the revision petition, set aside the impugned order, and directed the petitioner to be impleaded as a defendant in the suit. The Court held that the petitioner had satisfied all the criteria required for addition of a party in a suit for eviction and further satisfied the definition of “tenant” engrafted in Section 2(h) of the West Bengal Premises Tenancy Act, 1956. The Court also held that the Trial Court had wrongly proceeded to apply the doctrine of representation and thereby overlooked the material statements made in the application.
Issues: 1. Whether the petitioner was a necessary and proper party to the eviction suit? 2. Whether the Trial Court erred in applying the doctrine of representation?
Ratio Decidendi: 1. The definition of “tenant” under Section 2(h) of the West Bengal Premises Tenancy Act, 1956 is composite and includes both contractual tenants and statutory tenants. 2. In the case of a statutory tenant, only those heirs who were ordinarily residing with the tenant at the time of his death are required to be impleaded in an eviction suit. 3. The doctrine of representation can be applied in eviction suits, but it is not applicable in all cases. 4. A person seeking to be added as a party in an eviction suit must show that he or she has a direct and substantial interest in the subject matter of the suit and that his or her presence is necessary for a complete and effective adjudication of the dispute. 5. The statements made in an application for addition of a party, if uncontroverted, can be taken as sufficient to satisfy the requirements for addition.
Final Decision: The revision petition was allowed, the impugned order was set aside, and the petitioner was directed to be impleaded as a defendant in the eviction suit.
1. The challenge is made to an order no. 126 dated 22nd April, 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Sealdah in Title Suit No. 238 of 1990, by which an application for addition of party is rejected.
2. At the very outset this Court must record that the suit for eviction against the tenant has been unreasonably delayed and is pending since more than two decades.
3. Since the point urged before this Court assumes importance, this Court feels that it would be proper to deal with the same without being swayed by the number of years of pendency of the said suit.
4. Admittedly the suit for eviction was filed against the tenant, inter alia, on the ground of default, subletting and reasonable requirement. The original defendant was contesting the said suit. In course of the suit he died. An application for substitution was taken out by the plaintiff/opposite party impleading the widow and the son as heirs, who were ordinarily residing with the tenant at the time of his death.
5. It is also not in dispute that the widow subsequently died so the son and the heirs of the said son have been substituted in the suit. It is also a fact that the heirs of the deceased son are not contesting the said suit and the suit has been posted at the ex parte board.
6. The petitioner took out an application for her addition as defendant in the said suit on the premise that she, being one of the legal representatives and heirs of the original defendant, is a necessary and property party. It is further stated that though she was given in marriage but was residing with her parent and after his death is looking after his business with the help and assistance of a manager.
7. The Trial Court proceeded to dismiss the said application relying on a decision of the Supreme Court rendered in case of Shkuntala Vasant Pahadi & Ors. vs. Purushottam Vasant Pethe & Ors. reported in (2007) 3 SCC 123 wherein it is held that if the estate of the tenant is sufficiently represented, mere absence of one or two heirs would not invalidate the decree for eviction.
8. The doctrine of representation was applied by the Supreme Court in the said decision.
9. Before the points agitated by the respective parties are taken up, it is necessary to recapitulate the relevant section of the West Bengal Premises Tenancy Act, 1956.
10. Section 2 (h) of the said Act defines “tenant” as a person by whom or on whose account or by way of rent of any premises is or but for a special contract would be payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person’s death, such of his heirs as were ordinarily residing with him at the time of his death.
11. The definition of “tenant” is composite one and imbibe within itself two eventualities; firstly when a person dies before termination of his tenancy, meaning thereby on the death of a contractual tenant the heirs and legal representatives, who succeeded to the estate left by him; secondly on the death of a person, whose tenancy has been determined such of his heirs, who were ordinarily residing at the time of his death.
12. It leaves no ambiguity to say that tenancy is a heritable estate and passes on to the heirs and legal representatives on death. The special feature, which can be seen from the definition of “tenant” is that all the heirs and legal representatives may not be joined in a suit for eviction, if such death occurs after termination of a tenancy. The special qualification required in such eventuality is that such heir, who was ordinarily residing at the time of his death, is required to be substituted, as he satisfies the definition clause.
13. There has been a divergent of opinion on a question whether a decree for eviction shall be rendered invalid or ineffective having passed against some of the heirs without impleading the others, if the contractual tenant dies before the termination of tenancy.
14. This Court feels that such point need not
