SHAMSUL ALAM MONDAL Vs. JAHANARA BEGUM

JUDGEMENT

(1.) This application is at the instance of the defendant no.3 and is directed against the order no.106 dated September 12, 2006 passed by the learned Civil Judge (Junior Division), Third Court, Alipore in Title Suit No.196 of 1987 thereby rejecting an application under Section 151 of the Code of Civil Procedure filed by the defendant no.3/petitioner.

(2.) The short matter is that the plaintiff/opposite party no.1 instituted a suit for eviction being the Title Suit No.196 of 1987 against the petitioner/defendant no.2, the opposite party no.2 and the defendant no.1 (since deceased) from the property in suit as described in the schedule of the plaint before the learned Munsif, Third Court, Alipore for recovery of possession after revocation of licence and other reliefs. In that suit, the defendant no.2 and defendant no.3/petitioner herein appeared and they jointly filed a written statement denying all the materials allegations made in the plaint. They contended that they inherited the suit property also. Such a written statement was filed on June 26, 1992. Thereafter, they were proceeding with the suit jointly as defendants. Then, on March 28, 2006, the defendant no.2 filed a supplementary to the written statement admitting that he was a licencee in respect of the suit property. On knowing such fact, the defendant no.3/petitioner herein filed an application under Section 151 of the C.P.C. praying for dismissing the supplementary to the written statement filed by the defendant no.2. That petition was rejected by the order impugned holding that since the defendant nos.2 & 3 had filed a joint written statement, either of them cannot take a contrary stand to the prejudice of the other party. So the learned Civil Judge (Junior Division) rejected the said petition. Being aggrieved by the order of rejection of that application, the defendant no.3 has come up with the application. Mr. Mitra, learned Advocate appearing on behalf of the petitioner, submits that since both the defendant nos.2 & 3 have filed a joint written statement controverting the claim of the plaintiff, the defendant no.2 alone cannot admit the claim of the plaintiff by way of a supplementary to the written statement and so the learned Civil Judge was not justified in rejecting the said petition.

(3.) On the contrary, Mr. Bhattacharya, learned Advocate appearing on behalf of the plaintiff/opposite party, submits that the defendant no.2 cannot admit on behalf of both the defendant nos.2 & 3. But the statement made by the defendant no.2 in the supplementary to the written statement can well be accepted as an admission and so an effective decree can be passed against the defendant no.2 on admission. But it cannot in any way be taken as an admission on behalf of the defendant no.3 at all. He has submitted to pass appropriate orders accordingly.