PRITI DE Vs. BIRENDRA NARAYAN BASAK

JUDGEMENT

(1.) The instant appeal has been filed against the Judgement passed in the Title Appeal No.2 of 2013 arising out of Ejectment suit No. 186 of 2006.

(2.) The Learned Counsel appearing on behalf of the appellant during his argument has submitted that Second Appeal only involves 'substantial questions of law'. He has further submitted that the appellant had issued a letter dtd. 9/1/2006 through his Learned Advocate addressed to Birendra Narayan Basak that is the respondent No. 1 bringing to his notice that in the rent receipt the name of any other person jointly holding the said tenancy was not clarified and in reply to the said letter a letter dtd. 15/2/2006 was sent by the respondents through their Learned Counsel clarifying that the tenancy was in the name of Birendra Narayan Basak and Samarendra Narayan Basak and for the purpose of convenience the rent receipt was granted by mentioning "Birendra Narayan Basak and others". He has further submitted that the respondents never disputed the issue of relationship of landlord and tenant nor took any defence for non-joinder of Sipra Sett who is their married sister.

(3.) It has further been argued that the Learned Trial Court vide the Judgement and Decree dtd. 17/11/2012 passed in the said ejectment suit dismissed the said suit of the appellant. He has further submitted that the finding of the Learned Trial Court had been challenged by preferring the first appeal. Through the judgement dtd. 28/2/2014 the first appeal was dismissed on the sole ground of non-joinder of Sipra Sett. The Learned Counsel has cited a judgement published in (2000) 2 CHN 30 wherein it has been held that in a given and identical circumstance the principles relating to doctrine of representation would be squarely applicable and any action taken by the plaintiff against the defendant would be deemed to be representing the other tenants. He has further cited a judgement published in (2020) 2 RCR (Rent) 334. Wherein it has been held that the moment the entire estate of the deceased tenant is adequately represented by some of the heirs (of the deceased tenant) non-impleadment of other heirs shall not invalidate the decree nor the suit can be said to be bad for non-joinder of necessary party. It has further been submitted by the Learned Counsel that the substantial question of law formulated by the Hon'ble High Court at the time of admission of appeal if at all is not formulated properly then it is not fatal so that the appeal could be dismissed rather the Hon'ble Court can formulate the substantial question of law at any time of hearing of the appeal. It has further been submitted that the issue of maintainability of a suit has been dismissed by both the Trial Court and the First Appellate Court but the findings of both the Courts are different, as such it cannot be said to be a concurrent finding. It has further been argued that the plea of non-joinder of Sipra Sett in the suit was beyond the pleading and no documentary evidence was tendered by the defendant respondent to prove that they had a sister namely Sipra Sett. It has further been submitted that the first appellate Court came to an erroneous finding that the suit is bad for defect of parties for not impleading Sipra Sett being a necessary party. He has also submitted that such finding by the First Appellate Court is not a concurrent finding rather a perverse finding.