BISHNU PADA BANERJEE Vs. MADHUBALA RUIA & ORS.

JUDGEMENT

(1.) This revisional application is directed against the Order No. 16 dated 4.2.99 passed by Shri S. P. Chatterjee, Assistant District Judge (Civil Judge - Senior Division), Sealdah in Title Appeal No. 64 of 1997 by which a petition under Order 6 Rule 17 of the Code of Civil Procedure filed by the petitioner-defendant was rejected after hearing the contending parties. The case of the petitioner-defendant is that for the finality of litigation the proposed amendment of the written statement by way of counter-claim is necessary. On the other hand, the respondent plaintiff on the basis of an affidavit-in-opposition contended that the proposed amendment is not at all necessary and that the prayer for amendment before the first appellate Court was made only to delay the entire proceeding.

(2.) After hearing the learned Counsels of both sides and on perusal of all materials on record, it appears that by a single judgment dated 26.5.97, the Munsiff of the Second Court at Sealdah disposed of three suits by way of decreeing Title Suit No. 202 of 1983, Money Suit No. 7 of 1989 and Money Suit No. 7 of 1985 of his Court thereby coming to a conclusion that the defendant was not a Thika tenant under the plaintiff and the plaintiff was entitled to recover has possession of the disputed property. Decree for damages for unauthorised occupation of the disputed property by the defendant was also passed. Against the said judgment, Title Appeal No. 64 of 1997 was filed and the instant application for amendment of the written statement was filed by the appellant-defendant which is to be found in page 9 of the affidavit-in-opposition filed by the present respondent/plaintiff. By the said petition for amendment the defendant tried to convert his written statement into a cross-suit by stating certain facts which are already included in his written statement filed on 21.5.86 before the trial Court. The first appellate Court accordingly rejected the petition, with the observation that conversion of the written statement into a cross-suit is not necessary. The learned Counsels for both the sides concentrated their arguments on the point as to whether or no.t the proposed amendment is required to be allowed for a just decision in this case.

(3.) Admittedly, the original application filed before the first appellate Court was under Order 6 Rule 17 of the Civil Procedure Code praying for amendment of the written statement as a counter-claim. The first appellate Court by the impugned order came to a finding that there was no reason to allow the prayer under Order 8 Rule 6A of the Code of Civil Procedure and that the principle enunciated by the Apex Court in AIR 1997 Supreme Court 3985 (Smt. Shanti Rani Das Dewanji Vs. Dinesh Ch. De) was not applicable in the present case. The learned Counsel for the present petitioner in his argument before this Court did not challenge the said finding of the first appellate Court, but he concentrated his argument on the law point that the thika controller is a necessary party in this suit and for that reason, the proposed amendment is required to be allowed. In support of his contention the Id. Counsel placed reliance on two decisions of the Division Bench of this High Court reported in (1982)2 Cal LJ 143 (Mrs. Qaiser Jahan Vs. Mohammed Yawoon) and (1988)1 Cal LJ 328 ( Biswanath Khan and Ors. Vs. Prafulta Kumar Khan). On the other hand, the learned Counsel for the opposite parties contended that the thika tenant controller for the State of Wrist Bengal is not a necessary party specially when the trial Court came to a finding that the present petitioner is a trespasser in respect of the disputed property. Placing reliance on a decision of a Division Bench of this Court reported in (1999)1 Cal HN 14 (Mrs. Rekha Mukherjee Vs. Ashis Kumar Das and Anr.), the learned Counsel contended that in a revisional application under section 115 of the Code where the Court is unable to interfere with a finding even though from the self-same fact, it may arrive at a different conclusion unless it is satisfied that the view taken by the Court below is an absurd view. Reliance was also placed on a Single Bench decision of this Court reported in (1999)2 Cal HN 18 (Smt. Munia Devi Sahoo Vs. Shri Jugal Kishore Sahoo and Anr.) in support of the contention that the thika tenant controller is not competent to pass any order in such cases as the power is vested upon the authority constituted under section 6(3) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. So, the learned Counsel concluded that neither the State of West Bengal nor the thika tenant controller is a necessary party in the suit between the landlord and the trespasser even if the trespasser takes a ground of tenancy under the State Government.