KRISHNA MAITY Vs. NILIMA DUTTA

JUDGEMENT

(1.) THIS application is at the instance of the defendants and is directed against the order dated January 14, 2009 passed by the learned Civil Judge (Junior Division, First Additional Court at Alipore in Title Suit No.301139 of 1992. The plaintiffs/opposite parties instituted the Title Suit No.301139 of 1992 praying for a decree of declaration that the solenama filed in Title Suit No.9 of 1978 is not binding on the suit land, for a declaration that the defendant nos.2 & 3 have no right, title and interest in respect of the suit property, cancellation of deeds, decree for permanent injunction against the defendants/petitioners and other reliefs. In that suit, the defendants/petitioners are contesting by filing a written statement denying all the materials allegations contained in the plaint. Subsequently, the plaintiffs/opposite parties filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure praying for deletion of the name of the defendant nos.2, 3 & 4 on the ground that they had already transferred their right, title and interest in the suit property in favour of the other defendants on record. That application was allowed by the impugned order. Being aggrieved, this application has been preferred. Now the point for consideration is whether the impugned order can be sustained. After hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that the contention of the defendants/petitioners is that the defendant no.3 died on January 8, 2004 and the plaintiffs did not care to substitute the heirs of the deceased. The plaintiffs prayed for reliefs against the defendant nos.2, 3 & 4 and they have made certain allegations against them also. The defendants/petitioners have not acquired the entire interest of the defendant nos.2, 3 & 4, but they have some interest in the suit property and so it would not be proper to allow the application for deletion of the names of the defendant nos.2, 3 & 4. On the other hand, Mr. A. K. Mitra, learned Advocate, appearing on behalf of the opposite parties, contends that the plaintiffs can make the parties in the suit according to the reliefs sought for in the plaint and they have prayed for deletion of the names consciously and so the defendants/petitioners cannot have any say in this regard. The specific contention of the plaintiffs is that the defendant nos.2, 3 & 4 have already transferred their right, title and interest in the suit property in favour of the other defendants already on record and so the plaintiffs do not want to proceed against them. THIS being the choice of the plaintiffs and since they are taking the risk to delete their names in spite of objection that those defendants have a fraction of interest in the suit property, the plaintiffs want to delete their names. The petitioners did not specifically contend what interest the defendant nos.2, 3 & 4 possess after selling out their share in favour of the other defendants. THIS being the position, I am of the view that the learned Trial Judge has exercised his discretionary power in allowing the application for deletion of the names of the defendant nos.2, 3 & 4. As regards reliefs against the defendant nos.2, 3 & 4 when the plaintiffs/opposite parties pray for deletion of their names, it is up to their choice to mould the reliefs sought for in the plaint. Therefore, I am of the view that there is nothing to interfere with the order impugned. The learned Trial Judge has not failed to exercise jurisdiction vested in him and he has not committed any error of law. Accordingly, this application has no substance at all. It cannot be allowed. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.