Decided on July 19,1961



- (1.) IN this application under Article 227 of the Constitution, the main point that falls for decision is whether a third party claiming to have a title in the tenancy in dispute under the Calcutta Thika Tenancy, Act would be entitled to apply to the court for being added as a party defendant in proceedings for eviction started under section 5 of the Calcutta Thika Tenancy Act.
(2.) UNDER rule 12 framed under the Thika Tenancy Act in making enquiries under the Act the procedure laid down in the Code of Civil Procedure should be followed as nearly as may be. Now "enquiry" has not been defined or explained in the Act or in the Rules In this view it may be said that the word is wide enough to cover an application made under Order 1, rule 10, C. P. C. as in the present case. Prima facie, therefore, an application under Order 1, rule 10, C. P. C. may be filed. The question now is whether such an application is entertainable. Order 1, rule 10 speaks of an application being filed by either party. But here it is not one of the parties who has applied for being impleaded as a party. Under Order 1, rule 10, the court can proceed suo motu. But that will be entirely discretionary with the court and one cannot compel a court to proceed suo motu. Ordinarily it does not matter much whether the court received the information in question from a party or an utter stranger or a claimant if it chooses to act suo motu. But if the court does not act suo motu, certainly this court in an application under Article 227 of the Constitution will not compel the court to implead a third person as a party defendant although that court is of the opinion that the party should not be so impleaded.
(3.) THE petitioner, Jamurat Bewa, claims to be a co-sharer in the tenancy. It is stated by Mr. Sinha, learned Advocate for the petitioner that her claim to be a co-sharer to the disputed property has been decided in a suit in Alipore Civil Court. Mr. Biswas whose client was not impleaded in that suit presumably has no information about that suit. Be that as it may, the petitioner on her own application which was rejected by the court can not claim here to be impleaded as a party defendant by compelling the court below to exercise its discretion suo motu. But all the same it may be desirable that she should be on record. If hereafter either party in the proceeding, for safety's sake, wants that Jamurat Bewa should be brought on record in order that the relevant question might be set at rest, the Thika Controller should give every possible facility for that purpose.;

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