PRAVAT CHANDRA GIRI Vs. AMULYA CHANDRA BAHADURI

JUDGEMENT

(1.) The petitioner in this Rule instituted a suit for rent in the first Court of the Munsif at Hooghly. The suit was for recovery of the rent for the years 1329 to 1332. It was alleged on behalf of the petitioner that he had a Patni Taluq in Mouza Jagannathpur and that defendants in the suit were tenants under him. The tenants appeared and filed a written statement alleging amongst other things that the plaintiff was not entitled to a decree for rent as Mouza Jagannathpur was in the possession of the Receiver who had been appointed in respect of what is known as the Tarakeswar estate and that they had already paid the rents which were due from them to the said Receiver. These allegations of the defendants were supported by the Receiver who made an application to the Munsif on the 14 August 1926 praying to be added as a party to the suit. The Munsif rejected this application by an order dated the 16th August 1926, and in the said order it appears to have suggested that the Receiver might, if so advised, come in and prosecute the suit as the sole plaintiff therein. Thereafter on the 22nd August 1926 the Receiver apparently acting on the suggestion aforesaid made an application to the Court and the same was granted by an order passed on the 13 September 1926. By this order the Munsif directed that the Receiver should be made the sole plaintiff in the suit in the place of the original plaintiff, namely, the petitioner and that the Receiver should be allowed to prosecute the same. It is the validity of the order which has bean questioned before us in this Rule which the petitioner has obtained.

(2.) An objection in the nature of a preliminary objection has been taken before us though at the conclusion of the hearing of this Rule, on behalf of the tenants opposite party. It is substantially to the effect that the order that has been passed by the Munsif is one which comes within the purview of Order 1, Rule 10 of the Civil P. C. and it has the effect of finally adjudicating upon the rights of the plaintiff and that, therefore, it should fee treated as a decree within the meaning of Section 2 of the Civil P. C. and consequently an appeal would lie From this order. In support of this position reliance has been placed upon a decision of the Patna High Court in the case of Ramji Pandey V/s. Alaf Khan A.I.R. 1925 Pat. 121 and the case of Rama Rao v The Raja of Pittapur [1918] 42 Mad. 219. In the former of these two cases in a suit for partition, on the application of the plaintiff in that suit, certain defendants were dismissed from, the suit and the suit as against these defendants was dismissed and it was held that the order dismissing the said defendants from the suit amounted to an adjudication of their rights in that suit against them and, therefore, it amounted to a decree. In the second of the aforesaid cases an order striking out a defendant from the array of the parties therein as an unnecessary party and dismissing the suit as against him was held to amount in effect to a decree.

(3.) The reports of these two cases show that there was an adjudication on the question of the rights of the persons who were struck out from the suit and in that respect there is some distinction as between these cases on the one hand and the case before us on the other but I and not of opinion that, even if the two cases to which I have referred be considered as not being distinguishable from the present one and even if it be conceded that the plaintiff could have waited till a proper decree was passed in the suit as against him and could then have preferred an appeal that the present application before us in so far as it purports to be under Section 115 of the Civil P. C. is not maintainable. The position seems to be that no appeal in point of fact has been preferred to any Court against the decision passed by the learned Munsif, assuming for a moment that that decision may be regarded as amounting to a decree as against the plaintiff and that the appeal lay from it. I am clearly of opinion that this Court has jurisdiction in the present case by reason of the provision of Section 115 of the Code to deal with the matter and now that the records are before us, there is no reason why we should not deal with it. The preliminary objection, therefore, in my opinion, must be overruled.