SAHIDULLAH MUNSHI,J. - (1.) This revisional application is directed against order dated 23rd July, 2007, passed by the learned Civil Judge (Senior Division), 2nd Court, Howrah, in Miscellaneous Appeal No.48 of 2006, affirming Order No.184 dated 18th November, 2005, passed by the learned Civil Judge (Junior Division), 4th Court, Howrah, in Title Suit No.193 of 1988. The petitioners, Shri Kunal Agarwal and Shri Ketan Agarwal, filed an application before the learned Trial Court for substitution of their names under Order XXII Rule 10 of the Code of Civil Procedure, in place of Late Jaykrishna Agarwal, the original plaintiff. In the application for substitution, the petitioners mentioned that the suit was filed by Jaykrishna Agarwal in 1988 and he died on 18th March, 2005. The petitioners obtained lease by a Registered Deed dated 2nd August, 2003 in respect of the suit property and other property from the original owner/lessor, Baptist Missionary Society Corporation, for a period of 99 years. It has been contended by the petitioners that by virtue of the aforesaid Lease Deed, right to sue survived and the interest in the suit property has devolved upon the petitioners. The petitioners in this revisional application have stated that Jaykrishna Agarwal took tenancy in respect of the lands and structure comprised in Holding No.59/1, King's Road, P.S. - Golabari, District - Howrah, from the original owner, namely, Baptist Missionary Church by virtue of a bilateral Deed of Tenancy agreement and which was duly executed and registered on 10th February, 1983 and was in possession of the said property by letting out the same and realising rent from the premises tenant, that is, the defendant, who held a tenancy in respect of premises comprised in Holding No.59/9, King's Road, at a monthly rental of Rs.105/- payable according to English calendar month. The said Jaykrishna Agarwal instituted a suit for eviction against the defendant/opposite party, being the present suit, that is, Title Suit No.193 of 1988, since the defendant/opposite party failed and neglected to pay rent. The ground in the suit for eviction was also that the said defendant/opposite party was guilty for act of committing waste, negligence contrary to the provisions of (m), (o) and (p) of Section 106 of the Transfer of Property Act.
(2.) The said application filed by the petitioners under Order XXII, Rule 10 of the Code of Civil Procedure was opposed by the opposite party. In the said objection it was, inter alia, contended by the opposite parties that the application for substitution is misconceived and is not maintainable. It was contended that Jaykrishna Agarwal, since deceased, filed the suit for eviction and recovery of possession of defendant/opposite party and the suit was contested by the defendant by filing petition under Section 17(2) of the West Bengal Premises Tenancy Act, whereby the defendant challenged the relationship of landlord and tenant between the plaintiff and defendant. The defendant contended that he is a thika tenant in respect of the suit property. It was contended by the defendant that trial of the suit commenced in or about the year 2005 and it was never disclosed by the original plaintiff about the lease of the suit property in favour of the petitioners by the original owner and, according to him, the suit abated for want of substitution through the plaintiff's representatives. The defendant contended that Lease Deed was executed on 2nd August, 2003 which is completely a new and different cause of action and has got no connection with the cause of action of the suit, nor the petitioners could have been said to have stepped into the shoes of the original plaintiff and as such, the application made by the petitioners, is liable to be dismissed.
(3.) On perusal of the rival contentions of the parties the learned Trial Court arrived at a finding that there was nothing on record to suggest that a leasehold interest was created or devolved upon the applicants/petitioners "during the pendency of the instant suit." In support of such finding the learned Trial Court mentioned that it transpired from the materials on record that the suit property has been leased by Baptist Missionary Society Corporation in favour of the plaintiff on 19th February, 1983 and, therefore, the petitioner's contention that interest of the suit property devolved on them during the pendency of the suit, is not tenable. That apart, according to the learned Trial Court, sole plaintiff expired on 18th March, 2005, no substitution has been filed for substitution of the legal heirs of the plaintiff in his place and since a period much more than 90 days had elapsed after death of the plaintiff and the presentation of the application under Order XXII, Rule 10 of the Civil Procedure Code, the learned Court was of the view that there is no cause of action after the death of the sole plaintiff in the instant case and, therefore, the application under Order XXII, Rule 10 of the Code of Civil Procedure, was rejected.;