DASS ESTATE PVT LTD Vs. KARAR AND COMPANY

JUDGEMENT

(1.) These two appeals arose out of judgment dated 23.06.2005 passed by Sri C. L. Sinha, learned Additional District Judge, Fast Track Court No.1 of Howrah in Title Appeal No.31 of 2003 remanding Title Suit No.94 of 1998.

(2.) The facts of the case is that appellant/plaintiff/landlord being a Private Limited Company under the name and style "Dass Estate Pvt. Ltd." filed an ejectment suit against M/s. Karar and Company being defendant/respondent on the ground of default, making illegal construction as well as for building and rebuilding being Title Suit No.94 of 1998 in the Court of learned Civil Judge (Senior Division), 6th Court, Howrah. Initially Ganesh Karar and Robin Karar appeared in the suit by filing vokalatnama claiming to be proprietor of M/s. Karar and Company. However, written statement was filed by only Robin Karar claiming himself to be the proprietor of the defendant firm M/s. Karar and Company, denying material allegations of the plaint and challenging the relationship of landlord and tenant. There was an order of amendment of plaint passed by learned Trial Court vide Order No.57 dated 2nd January, 2002 against which Robin Karar filed a revisional application being C.O. No.394 of 2002 in this Hon'ble Court wherein he filed an affidavit declaring himself as the proprietor of the defendant firm but the said revisional application was dismissed on contest by this Hon'ble High Court vide Order dated 25th February, 2002 by upholding the order of amendment by learned Trial Court. Against said amendment of plaint Robin Karar claiming to be proprietor of defendant firm filed additional written statement. In said Title Suit No.94 of 1998 Robin Karar filed an affidavit-in-chief as D.W.1 claiming himself as the proprietor of the defendant firm. In cross-examination he categorically stated that he was the owner of defendant firm. After contested hearing learned Trial Court decreed the suit for ejectment vide the judgment dated 30.01.2003. Sri Robin Karar claiming himself as the proprietor of M/s. Karar and Company preferred an appeal being Title Appeal No.31 of 2003 challenging said judgment of ejectment dated 30.01.2003 passed by learned Trial Court. At the time of filing the said appeal in the Court of learned First Appellate Court Robin Karar filed vokalatnama as proprietor of Karar and Company. During pendency of the said Title Appeal No.31 of 2003 appellant/defendant Robin Karar filed an application under Order 6 Rule 17 of C.P.C. read with Section 151 C.P. C. praying for amendment of the written statement filed by appellant/defendant Robin Karar in Title Suit No.94 of 1998 alleging that through inadvertence some apparent error and / or omission crept in the written statement which was required to be amended for proper adjudication and that those amendments would not change nature and character of the suit. By way of said amendment Robin Karar wanted to incorporate a separate paragraph being 10 A asserting that Karar and Company was a proprietorship firm and that Sri Ganesh Karar was the proprietor of the firm and that Ganesh Karar as proprietor should have been made a party etc. Appellant / defendant Robin Karar also filed an application under Order 41 Rule 27 read with Section 151 C. P.C. in said First Appellate Court for production of additional evidence by way of bringing on record a copy of challan, a copy of trade licence, a copy of income tax clearance certificate, a copy of registration of dealer and some other documents showing Ganesh Karar as proprietor of M/s. Karar and Company. The present appellant plaintiff filed written objection against both the petitions. As per direction of learned First Appellate Court vide Order 17 dated 12.01.2005, Robin Karar filed an affidavit stating that he was not the proprietor of Karar and Company and that Ganesh Karar was the sole proprietor of said Karar and Company and that due to some unavoidable circumstances he was compelled to claim himself as the proprietor of Karar and Company. Against said affidavit dated 12th January, 2005 of Robin Karar alleging that he was not the proprietor of Karar and Company and that Ganesh Karar was the sole proprietor of said Karar and Company etc. Appellant/plaintiff filed a counter affidavit stating that Robin Karar all along contested the said suit in Trial Court and also filed various petitions in the Trial Court as well as in the Hon'ble High Court claiming himself as the proprietor of Karar and Company and that Ganesh Karar is none other than his own brother and that in appeal stage Robin Karar is trying to produce some documents claiming Ganesh Karar as sole proprietor of Karar and Company and that those documents are coming from the custody of Robin Karar and not from any other person. Appellant/plaintiff also filed a petition under Section 340 Cr. P.C. for drawing an appropriate proceeding against defendant Robin Karar for filing false affidavits in Court knowing the same to be false. Learned Appellate Court disposed of the amendment petition filed by Respondent / defendant Robin Karar and the petition under Section 340 Cr. P. C. filed by the appellant/plaintiff by the impugned judgment dated 23rd of June, 2005. In the said judgment learned First Appellate Court allowed the prayer for amendment of W.S. filed by respondent / defendant observing that plaintiff/landlord and defendant Robin Karar made unholy nexus in between themselves to procure a decree of eviction from learned Trial Court and that in order to give proper justice he was willing to allow the petition of amendment of the W.S. and accordingly he remanded the case to learned Trial Court to take further evidence on the basis of amendment of W.S. Regarding the petition under Section 340 Cr. P.C. filed by the plaintiff/landlord against defendant Robin Karar learned First Appellate Court refused to take any action and observed that it was open to the learned Trial Court to take cognizance on the basis of the petition under Section 340 Cr. P. C. filed by the plaintiff/landlord against defendant Robin Karar after conclusion of trial of Title Suit No.94 of 1998 and that it was totally discretionary on the part of the learned Trial Court.

(3.) Being aggrieved with said order of remand by allowing amendment of W.S. filed by Robin Karar with liberty to the parties to adduce evidence on said amended W.S. F.MA. 2326 of 2005 was filed by appellant. F.M.A. 2327 of 2005 was filed by the appellant / plaintiff against the same judgment wherein learned First Appellate Court refused to take cognizance against defendant Robin Karar under Section 340 Cr. P. C.