Pranabendra Mohan Mitra vs Lekha Das Gupta & Anr.

This revision petition has been filed by the petitioner/complainant, Sri Pranabendra Mohan Mitra against the order dated 28.8.2015 of the State Commission passed in R.P. No.RP/31/2015 by the State Commission West Bengal (For short, State Commission ) wherein the revision filed by the complainant before the State Commission against the order dated 16.1.2015 of the District Consumer Disputes Redressal Forum, South 24 Pargnas (for short, 'District Forum') passed in C.C. No.94 of 2011 has been dismissed.

Brief facts of the case are that the complainant filed complaint against the respondent/OP before the District Forum for registering the conveyance deed of the flat whose possession was already taken by the complainant long back. The complainant had filed an application dated 13.1.2015 with the District Forum wherein the impleadment of Sri Parthapritam Mitra as the complainant no.2 being the son of the complainant as a legal heir of Smt. Mina Mitra since deceased, being the wife of the complainant and further impleadment of Sri Amarnath Mukherjee as the OP no.2, being the owner, was sought. But the same vide its order dated 16.1.2015 was dismissed by the District Forum. Aggrieved by the order of District Forum, the complainant filed Revision Petition No.RP/31/2015, which was also dismissed by the State Commission by the impugned order dated 28.8.2015.

Hence the present revision petition.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner/complainant stated that after the death of wife of the complainant, son was required to be made a party as the purchase of the flat was in the joint name and earlier only the petitioner was the complainant. Similarly, one of the land owners Sri. Amarnath Mukherjee was left from the array of parties for the OP and therefore he was also required to be added as an OP. Then some other requests were also made in the amendment application. The present revision petition is in respect of deficiency of the OPs for not registering the conveyance deed till now, though the possession was taken long back. The learned counsel further stated that due to inadvertent error on the part of earlier counsel, proper parties could not be made in the complaint and therefore, the need had arisen for filing the amendment application.

On the other hand, the learned counsel for respondent no.1 stated that this is the second round of litigation and even in the first round of litigation, the same parties were there. The complaint was filed in the year 2011 and  since then till 2015 the complainant has not cared to seek impledment of the parties and he pursued upto the National Commission against order passed by the State Commission on maintainability. On the basis of the remand order dated 26.9.2014 from this Commission, the complaint case is to be decided first and for this purpose only, this Commission had remanded the matter to the District Forum. Therefore, District Forum has rejected the amendment application stating that there was no scope for considering the amendment application. The complainant preferred revision petition before the State Commission and the same has also been rejected. The complainant is trying to linger on the litigation on one pretext or the other. He is also enjoying the possession and both the fora below have rightly dismissed the application for amendment as the amendment cannot be allowed when the case is already proceeded and pleadings are over.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record.  Both the parties have agreed that conveyance deed can only be executed by the owner and the developer jointly. If there are two owners and one of them has not been made a party, it is logical that even if an order is passed by the District Forum allowing the complaint, it will be difficult for the complainant to get the order executed against the owners because only one owner shall be a party to the proceedings. Thus, if it is decided that the complaint is maintainable, then it will have to be decided on merits by passing an order in respect of registration of conveyance deed and in that case, it would be necessary that both the owners are impleaded as party. From this point of view, I feel that Mr. Amarnath Banerjee may be allowed as OP if he is co-owner of the property. So far as the Impleadment of Sri Parthapritam Mitra being the son of Mina Mitra is concerned, if the purchase is in the joint name of the complainant and his wife Mina Mitra and complainant has alleged that the original agreement was entered into by complainant longwith his wife for purchase of the flat, it seems necessary that to rectify the defect in the complaint by approaching the District Forum for amending the complaint for adding the representative of the wife who was a joint purchaser. In my view, no prejudice would be caused if the name of the son is also added to the list of complainants.

It is also true that this amendment application has been filed after a long time when the matter has proceeded a long way and the OPs have taken pains to litigate the mater by incurring expenses of various kinds. Thus, I am of the view that for any logical conclusion of the complaint, it is necessary that the second owner is also brought as an OP in the complaint case and the son as representative of the wife of the complainant being a joint purchaser is taken on record. After removing the defects of non joinder of necessary parties, The OPs are also liable to be compensated for the expenses incurred in pursuing the litigation.

Based on the above discussion, I deem it appropriate to set aside the order of the State Commission dated 28.8.2015 and order of the District Forum dated 16.1.2015 disallowing the amendment application and to order that the amendment application be allowed only to the extent of impleadment of Mr. Amarnath Banerjee to be included as OP and the name of Sri Parthapritam Mitra be also added as a complainant at a cost of Rs.20,000/- each to be given to both the existing OPs. Cost be paid within a period of four weeks from the date of this order. However, the time be extendable by the District Forum if need be. The present Revision Petition No.3006 of 2015 stands disposed of accordingly.

The District Forum to proceed with the case after compliance of this order.