KANAI LAL MISRA Vs. RAM NIBASH BAJAJ

JUDGEMENT

(1.) In my judgment this appeal succeeds. The plaintiff brought his suit asking for relief in the alternative: first of all, for declaration of title and possession of 200 bighas of land in Mauza Jaba in the Asansol District and alternatively, for judgment for Rs. 7,400 or, in default compensation. His case was that Rani. Shyama Sundari Debi had given him a lease for 999 years of this property in Mauza Jaba and had received from him selami of Rs. 6,000 and nazar of Rs. 1,000 on or about 29 July 1920, that he was resisted by certain persons, defendants 2 and 3 in the suit, and had not obtained possession of the land demised and that he was entitled to a decree either for possession or else for recovery from the lady or her estate the sum of Rs. 7,400 which he had paid on that account. The suit itself was brought on 12 July 1922 and the lessor, Rani Shyama Sundari Debi, died on 18 February 1927 pending the suit. Now, the heir of the lady's stridhan and also the person who was the reversioner after the lady's Hindu widows estate to her husband was defendant 2, Raja Promotha Nath Malia, he being the son of her husband's brother and when the lady died it was, of course, quite proper that her heir should represent her estate. On 19 July 1927 however the plaintiff made an application to the Court saying that the present appellant Babu Kanai Lal Misra has been possessing the Rani's moveable properties. Hence, for the purpose of meeting all sorts of objections, it is necessary to include the said Kanai Lal Babu also in the category of the defendants and upon that an order was made on 19 July 1927: Plaintiff applies for substituting Kanai Lal of the address and particulars as mentioned in the petition in place of the deceased defendant 1. Be it so and the petition be treated as part of the plaint.

(2.) Upon that I desire to say that it seems to me that this is a signal example of a very bad practice in the lower Court. If it is desirable that some person who is not an heir ex concessis of a deceased defendant should be substituted in his stead, it seems to me to be very necessary not merely that the name of the person should be substituted or added in the cause title but that the plaint should also be properly amended making the allegations according to which the plaintiff claims to treat the added defendant as in some way responsible for the debt of the deceased defendant; and this method of treating the petition as part of the plaint is particularly objectionable because a petition is generally drawn very differently from a proper plaint. In the present case, this petition discloses no cause of action against the person proposed to be added except that it says that he has been possessing her moveable properties, Hence, for the purpose of meeting all sorts of objections, it is necessary to include the said Kanai Lal Babu also in the category of the defendants.

(3.) Now, in that unfortunate state of things, the appellant filed a written statement. He stated that the plaintiff had no cause of action against him and that he was not concerned with the present suit. He further stated that: the late Rani made a gift of some of her moveable stridhan properties to this defendant; but, for that reason, this defendant cannot by any means be liable for the money mentioned by the plaintiff.