SULATA ROY CHOWDHURY Vs. PEARY DEBI & ORS

JUDGEMENT

(1.) This application is at the instance of the landlord against the order passed by the Additional District Judge, 10th Court, Alipore, allowing the application for the amendment of the written statement against an application under section 5 of the Calcutta Thika Tenancy Act. The petitioner purchased the suit premises on 10th Feb., 1967, from Sardar Sampuran Singh, Sardar Karan Singh, Sardar Nachettar Singh. The said landlords gave a letter of attornment to the opposite parties and by such purchase it is alleged that the petitioner became the absolute owner of the property and she made an application for eviction of the opposite parties for her own use and occupation as the petitioner has no house of her own. The Thika Controller by an order dated 24th June, 1974, allowed the application on condition that the petitioner shall deposit with the Thika Controller or pay to the opposite parties such compensation as may be agreed upon. Being aggrieved, the opposite parties appealed. In the said appeal, the said opposite parties filed an application for amendment of written statement, inter alia, on the ground that the petitioner is not the absolute owner of the property in question. That application was rejected by an order, being Order No. 9, dated 2nd Aug., 1974 by the learned District Judge, Alipore. It appears that against the said order, the opposite parties moved this Court under section 115 of the Code of Civil Procedure on 20th Aug., 1974, and this Court was pleased to reject the said application on the following terms:-

(2.) It appears that the question of relationship of landlord and tenant between the petitioner and the opposite parties was considered by the Thika Controller and was held in favour of the petitioner. Mr. Roy contended that the opposite party, being the tenant under the petitioner, cannot challenge the title of the petitioner landlord. In my opinion, this proposition of law cannot be doubted at all.

(3.) It further appears that on application being made for amendment of the written statement by the tenant the learned District Judge by his order dated 2nd Aug., 1974 rejected the application for amendment. It was held therein that the respondent (petitioner herein) "if she can show that she is a landlord of the disputed holding she is entitled to succeed and the question of ownership does not arise at all". Against this order the opposite party in this application moved this Court in its revisional jurisdiction and the said order of the rejection of the application for amendment was upheld by this Court but with the observation as aforesaid. The opposite party therefrom went back to the court of appeal below and pressed the application for amendment at the hearing of the appeal and the Court of appeal below construed the observation made as if "it is a direction for hearing afresh the question of amendment". It must be stated that the opposite party filed a fresh petition proposing the / amendment in the written statement before the appellate court again and the petitioner filed objection against the above petition and appellate court considered the fresh petition proposing amendment in the written statement and allowed it. In my opinion, the order was passed by the court while rejecting the application against the order of rejection of the proposed amendment and the observation made without issuing a notice on the other side and without issuing a rule, is against all canons of law. This practice creates difficulties for the parties who are not represented before this Court though orders are passed to the prejudice of the non appearing parties. In this case the rule was not issued but the observation was made which for all practical purposes nullified the order that was passed by the learned District Judge on the application for amendment of written statement in absence of petitioner landlord in respect of a matter in which the order was passed in his favour.