N.Mookerjee, J. - (1.) This is the plaintiffs appeal, directed against the dismissal of its suit by the Court below on a technical ground. The suit was brought for permanent injunction to restrain demolition of premises No. 212, Jamunalal Bazaz Street (Old Cross Street) under an order of demolition, alleged to have been passed on September 17, 1958, by Sri P. C. Majumdar, the then Commissioner of the Corporation of Calcutta, under Rule 5(4), Schedule XVII, of the Calcutta Municipal Act, 1951. The plaintiff claims to be a tenant in occupation of a portion of the above premises No. 212, Jamunalal Bazaz Street (old Cross Street).
(2.) In the plaint, the allegation is made that the above order is ultra vires and without jurisdiction, it having been made in contravention of the relevant statute. The suit was filed on January 16, 1961 and, to the suit, were made parties the Commissioner or the Corporation of Calcutta as defendant No. 1, the Corporation of Calcutta as defendant No. 2, these being the principal defendants, and the plaintiff landlord was made pro forma defendant No. 3 so that the point involved, which concerned him as well to a certain extent might be decided in his present.
(3.) In the suit, the defendants enteres appearance and one of the preliminary objections, taken by the first two defendants, was to this effect that the suit was not maintainable in its present form, as, in law, the Commissioner, Corporation of Calcutta, could not be sued except in the individual name of the person, holding the said past. This objection was founded on a decision of this Court, reported in P. B. Shah & Co. v. Chief Executive Officer. For meeting this objection, the plaintiff sought to amend the plaint by adding Sri P. C. Majumdar, who was the Commissioner, who passed tile impugned order of demolition, and also by adding the then Commissioner of the Corporation of Calcutta in his individual name. This application, however, was opposed and, eventually, the learned trial Judge found that, on the above decision of this Court, reported in AIR 1982 Cal 283, supra, the Commissioner, Corporation of Calcutta, could not be sued by the title and the individual, holding the said post, had to be implead-ed, and, secondly, that the amendment, sought for, was not permissible, as it would offend Section 586 of the Calcutta Municipal Act, barring a suit of the present type, if it was sought to include therein any prayer for a declaration that the impugned order of demolition was invalid or for setting aside the said order and such prayer would also be barred under Article 14 of the Indian Limitation Act against any person, sought to be added now this latter on the ground that the Commissioner, according to the other decision of this Court, reported in Shivadhar v. Corporation of Calcutta, 64 Cal WN 60 was an officer of the Government, however much he may be holding the post of the Commissioner of the Corporation of Calcutta. The learned trial Judge, accordingly, dismissed the plaintiffs suit as, in his view, upon the above authority of this Court, if the defendant No. 1 had to be deleted in accordance with that decision and the amendment could not be allowed, the suit would be liable to be dismissed on the ground of absence of necessary parties and the presence of the other two defendants would not be sufficient to protect the same. From this decree of dismissal, the present appeal has been filed by the plaintiff.;