- (1.)THIS revisional application is directed against an order dated December 19, 2013 passed by the Additional Civil Judge (Junior Division), 2nd Court, Alipore in Ejectment Suit No.40 of 2006 by which an application for addition of party is rejected.
(2.)BEFORE addressing the points canvassed by the respective parties, it is axiomatic to record the salient facts of the case. The opposite party no.1 filed a suit for eviction against the opposite party no.2, inter alia, on the ground of default in payment of rent and reasonable requirement. The case made out in the plaint is that the opposite party no.1 is a owner in respect of the premises no. 41A, S.P. Mukherjee Road, Kolkata - 700 026. The opposite party no.2 is a tenant in respect of two shop rooms along with one privy and bathroom in the ground floor at the said premises at a monthly rental of Rs. 120/ - payable according to English calendar. By statutory notice dated August 10, 2005, the said tenancy of the opposite party no.1 who determined but despite thereof, the said opposite party did not vacate and/or hand over the vacant possession of the said tenanted premises. Initially the suit was contested by the said opposite party but thereafter, a settlement was arrived between the opposite parties and an application for compromise is filed. At this stage, the petitioner filed an application for addition of party claiming himself to be one of the joint tenant in respect of the tenanted premises. The petitioner specifically pleaded in the said application that previously the tenanted premises was let out to a partnership firm namely M/s Caf , of which the petitioner is one of the partner. It is further stated in the said application that Title Suit No.48 of 2012 has been instituted by the employees of the said partnership firm seeking a declaration that they have every legal right to run and continue the restaurant in the name and style M/s Caf , with further declaration that the petitioner and the opposite party no.2 who are the partners of the said partnership business have no right to hand over and transfer the said property to a third person. The petitioner filed the written statement cum counterclaim in the said suit seeking a declaration that he is one of the owner of the said partnership business and have a right to access in the said partnership business and other consequential reliefs in the form of permanent injunction. The foundation of the counterclaim is based on the deed of partnership dated 31st December, 1974 whereunder the petitioner have a proportionate share to the extent of 40%, the opposite party no.2 have a proportionate share of 50% and the father of the petitioner and the said opposite party was having 10%. It would further reveal from the said counter -statement that the father of the petitioner and the opposite party no.2, died on August 1, 1976 and according to the petitioner, his proportionate share devolved equally upon them. It is further borne from the record that the opposite party no.2 has instituted Title Suit No. 118 of 2012 before the Civil Judge (Junior Division), 4th Court, Alipore for declaration that he has unfettered right to use and enjoy the ownership of the partnership business at the tenanted premises as a proprietor since June 21, 1994. The case made out in the said suit as deciphered therefrom is that the petitioner showed intention to retire from the said partnership business and after the settlement of accounts, a deed of settlement was executed in the form of the dissolution of the partnership which was duly notarized before the Notary Public. After dissolution of the partnership business and in terms of the settlement arrived between the parties, the opposite party no.2 is carrying on the business in the same name and style as a proprietor thereof. It is stated at the bar that the petitioner have also filed a suit for declaration that the purported deed of settlement cum dissolution is manufactured and null and void.
(3.)IN the backdrop of the aforesaid facts, the point requires to be considered in this revisional application is whether the petitioner can be added as the party defendant in a suit for eviction filed against the opposite party no.2.
Mr. Jiban Ratan Chatterjee, the learned Senior Advocate appearing for the petitioner submits that both the opposite parties in this revisional application have colluded to evict the petitioner from the suit premises. He further submits that the tenancy created in the name of the partnership firm is, in fact, a tenancy of the partners thereof as a joint tenant who can very well be added in a suit for eviction instituted by the landlord. He vehemently submits that the suit is not competent having instituted against one of the joint tenant and the left out joint tenant have right to intervene in the said proceedings to protect such right. He placed reliance upon a judgment of the Apex Court in case of Textile Association (India) Bombay Unit vs - Balmohan Gopal Kurup and another, 1990 AIR(SC) 2053, in support of his contention that if any of the heir of the original tenant is not made a party in the eviction suit, he can be added for completed and effective adjudication of the lis. By borrowing an inspiration from a judgment rendered in case of Jaharlal Saha and Ors. vs - Pradip Saha and Ors., 2006 1 CalHN 513, Mr. Chatterjee strenuously argues that the suit is not competent in absence of any of the heirs of the original tenant. Lastly Mr. Chatterjee submits that one of the joint tenant is a necessary and proper party to an eviction suit and the Court should have allowed the application filed by his client.