HARI CHARAN PAL Vs. DHANANJOY GHOSH AND ANR.

JUDGEMENT

(1.) Affidavit of Service filed by Mr. Roy be taken on record. No one appears for the opposite parties despite service even at the second call.

(2.) This revisional application is directed against order No.33 dated 6th Nov., 2009, passed by the learned Civil Judge (Junior Division), Additional Court, Lalbagh, in other Title Suit No.73 of 1994. The petitioner is an added defendant in the suit. The opposite party No.,1, Dhananjoy Ghosh, filed a suit praying for eviction of opposite party No.2, who is defendant No.1 in the suit. In the said eviction suit plaintiff has made out a case that the suit property originally belonged to Kiran Bala Pal, and she subsequently, transferred the same by way of a registered deed dated 2nd Aug., 1972 in favour of Sachi Rani Pal. Sachi Rani Pal subsequently, by registered deed dated 3rd Dec., 1973, transferred the suit property in favour of the plaintiff. Plaintiff/opposite party No.1 inducted the opposite party No.2 as his tenant. In spite of revoking the tenancy opposite party No.2 did not vacate the suit property and, therefore, the suit was filed. While contesting the said suit the opposite party No.2 being the defendant No.1 filed his written statement and denied all allegations made against him in the plaint. The opposite party No.2, Soleman Sha, took a specific defence that he is the tenant under Kiran Bala Pal and she is his landlord. Opposite party No.2 did not pay rent as there is dispute as regards ownership over the property. The written statement has been annexed to the revisional application which was filed on 17th Jan., 1991. In paragraph 7 of the said written statement the defendant/opposite party No.2 has admitted that he paid rent for the suit premises to the petitioner, Hari Charan Pal who is the son of Kiran Bala Pal and further admitted that the defendant No.1 paid rent to Kiran Bala Pal up to March, 1990. At a much later stage of the suit the defendant No.1 filed an application on 6th Nov., 2009 praying for an order allowing him to substitute his earlier written statement by a new one and in order to do so he blamed his learned advocate that without his instruction the written statement was drawn and filed before the Court. Such attempt was seriously opposed by the petitioner. The learned Court below, by the order impugned, allowed the said application holding that the defendant would suffer prejudice if such application is not allowed by allowing him to substitute his written statement.

(3.) Challenging the said order, Mr. Roy in this revisional application has submitted that while the original written statement was submitted in 1991, subsequent stand was taken by the defendant No.1 to withdraw his earlier written statement only in the year 2009. Although, the suit proceeded before the learned Court below but no steps were taken by the said defendant. Such attempt to withdraw the earlier written statement was made only after the petitioner was added as a defendant in the suit. It is his submission that such an attempt has been taken by the defendant to delay the hearing of the suit. After going through the plaint, original written statement and the application for withdrawal of the said written statement by filing a separate one, this Court finds that the same does not make out any case for substituting his earlier written statement. The said application ought not to have been allowed by the learned Court below for the reasons, firstly, for not making the application within a reasonable period of time. In this case, the original written statement was filed in the year 1991 and after a period of 18 years the defendant No.1 filed an application for withdrawing the earlier written statement by filing a separate one, secondly, no plausible explanation has been offered by the defendant No.1 for filing such a belated application and if no instruction was given to the learned advocate to conduct the case no explanation is forthcoming from the defendant No.1 as to what steps he had taken to revoke the power given to that learned advocate to file the written statement before the Court and the Court is oblivious of these questions. Thirdly, nothing has been considered by the learned Court below as to whether an admission which has been made can be withdrawn by a party at a subsequent stage of the suit.