Mita Chowdhury vs Asit Bhattacharya & Ors

Bibek Chaudhuri, J

One Sabita Bhattacharyya, since deceased being the original landlord and owner of the premises filed Title Suit No. 29 of 1998 against the defendant/appellant praying for eviction on the ground of reasonable requirement. The learned Judge, Small Causes Court, Sealdah dismissed the suit on contest.

Against the judgement and decree of dismissal the original landlord/plaintiff filed Title Appeal No. 53 of 2006 before the learned Additional District Judge, Fast Track, 3rd Court at Sealdah. In the said appeal, a point of jurisdiction as to whether the Small Causes Court can try a suit for eviction or not was raised. The learned Judge in First Appellate Court held that the Small Causes Court, Sealdah has jurisdiction to try the suit. Accordingly, the said appeal was allowed. The suit was remanded back to the Trial Court for fresh decision on the basis of certain observations made by the learned First Court of Appeal. Against the judgement and decree passed under Order XLI Rule 23A of the Code of Civil Procedure, the defendant/tenant has preferred the instant miscellaneous appeal. The appeal was admitted by the Division Bench of this Court vide order dated 2nd August, 2007.

The appellant duly filed an application for substitution praying for substituting the names of the legal heirs and representatives of deceased respondent which was registered as CAN 9533 of 2010. The said application was filed well within the statutory period of limitation.

During the pendency of CAN 9533 of 2010, one of the joint owners of the premises in suit, namely, Amit Kumar Bhattacharyya filed an application being CAN 4187 of 2013 praying for recording abatement of the appeal for non-substitution of legal heirs and representatives of deceased respondent within statutory period of time. In the said application, another joint owner of the premises in suit, namely, Asit Kumar Bhattacharyya filed a supplementary affidavit against CAN 4187 of 2013 stating, inter alia, that Amit has forged the signature of Asit in the Vakalatnama and penal action ought to be taken against Amit under Section 340 of the Code of Criminal Procedure.

Learned Advocate for the appellant submits that the instant appeal practically becomes infructuous on the ground that Asit Kumar Bhattacharyya, one of the joint owners accepted the appellant as a lawful tenant in respect of the premises in suit. Moreover, another joint owner, namely, Amit Kumar Bhattacharyya filed the application for abatement of appeal by forging his signature in the Vakalatnama filed with CAN 4187 of 2013. Therefore, the learned Advocate for the appellant invites the Court to take cognizance of such forgery in the record of this appeal and initiate proceeding under Section 340 of the Code of Criminal Procedure against Amit Kumar Bhattacharyya, one of the joint owners.

Mr. Sankha Subhra Ray, learned Advocate for Asit Kumar Bhattacharyya has supported the contention of the learned Advocate for the appellant.

It is crystal clear that after the death of the original landlord/respondent her two sons Amit and Asit inherited property in equal share. During the pendency of this appeal, a clandestine arrangement was arrived at between Asit and the appellant and Asit agreed to accept the tenant/appellant as a lawful tenant in respect of the suit premises.

In view of such circumstances, this Court unnecessary involves itself in a dilemma as to whether the instant appeal ought to be heard first or an enquiry is to be ordered for alleged forgery committed by Amit Kumar Bhattacharyya in filing application being CAN 4187 of 2013. There is, however, no dispute that the original respondent died on 9th September, 2010 and the appellant filed application for substitution being CAN 9533 of 2010 on 19th November, 2010. The application for substitution was thus filed while within the statutory period of time. The legal heirs of the original landlord/respondent who inherited the premises in suit were sought to be substituted rightly under the provision of Order XXII Rule 3 of the Code of Civil Procedure as right to sue survives upon them.

In view of such circumstances, CAN 9533 of 2010 is allowed. Office is directed to take step for incorporation of the names of the legal heirs and representatives of the deceased respondent in the cause title of the Memorandum of Appeal.

I have already recorded that the appeal was admitted vide order dated 2nd August, 2007 under the provision of Order XLIII Rule 1(u) of the Code of Civil Procedure.

In the instant appeal, this Court cannot deal with disputed question of fact. The scope of this Court in an appeal filed under the provision of Order XLIII Rule 1(u) is to see as to whether the order of remand was justified or not. If the order of remand is held to be justified and the judgement and order passed by the First Appellate Court is affirmed, the learned Trial Judge will be directed to hear out the suit afresh as per the observation and direction made by the learned First Appellate Court. If on the other hand, this Court finds that the judgement and order of remand passed by the learned Lower Appellate Court cannot be sustained, the Lower Appellate Court will be directed to pass judgement on merit in the said appeal.

Apart from the above-mentioned two conclusions no other conclusion can possibly be derived from the scope of an appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure.

On perusal of the record, I find that the Division Bench of this Court while admitting the appeal did not formulate substantial questions of law. Therefore, taking recourse to the provision of Section 100(5) of the Code of Civil Procedure the following substantial questions of law are formulated: -

(i) Whether the learned First Court of Appeal substantially erred in law in holding that the Small Causes Court, Sealdah had no jurisdiction to try Title Suit No. 29 of 1998;

(ii) Whether the learned First Appellate Court substantially erred in law in remanding the suit back to the Court of the learned Civil Judge (Senior Division), Sealdah for fresh trial ignoring the fact that by an administrative order passed by the learned District Judge, South 24-Parganas Title Suit No. 29 of 1998 was transferred to the Small Causes Court, Sealdah and the Small Causes Court, Sealdah assumed jurisdiction only after the suit being transferred by such administrative order by the learned District Judge.

The instant appeal will be heard on the said substantial question of law on 6th September, 2019. At the time of final disposal of the appeal, objection raised by one of the joint owners, namely, Asit Kumar Bhattacharyya regarding commission of forgery by his brother, Amit Kumar Bhattacharyya will be taken up for consideration.