Name: Ruma Chakraborty vs Sudha Rani Banerjee & Anr
Citation: Appeal (civil) 2565 of 2001
Date of judgement: October 04, 2005
Appellant: Ruma Chakraborty
Respondents: Sudha Rani Banerjee & Anr
Bench: Hon’ble Justice Dr. Ar. Lakshmanan and Hon’ble Justice Altamas Kabir
Facts:
1. After dissolution of the marriage, the Appellant is no longer a part of the Respondent’s family having the status of a stranger and she was in illegal occupation of the suit premises in violation of the statutory provisions of the West Bengal Premises Tenancy Act, 1956.
2. Respondent husband has admittedly removed himself from the suit premises prior to the institution of the suit retaining any control of suit premises. Respondent contested that the Appellant is in illegal occupation without the prior written consent of the landlord and, therefore, has fulfilled the provisions of Section 13 (1)(a) of the Act and has become liable for eviction.
3. The Appellant filed application under Order 1 Rule 10 (2) C.P.C. for being impleaded as a party defendant before the Civil Judge, after the institution of the suit.
4. Appellant further contended that the son and daughter are entitled to the tenancy right and can proceed as a tenant who is still alive and contesting the suit. The Judge dismissed her application on. The appellant, thereafter, moved the High Court.
Issue involved:
- Whether the Appellant has a right to be impleaded as party Defendant?
Obiter Dicta:
1. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 reads thus:
“Maintenance includes- (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) In the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.
2. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows: – Maintenance of wife:-
1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
While dissolving marriage under Section 13-B of the Hindu Marriage Act, 1955, the matrimonial court with the consent of the parties ordered the proforma respondent to pay a sum of Rs.200/- p.m. for maintenance of the minors only. The appellant, in our opinion, by such consent order has expressly waived her right to maintenance.”
Rationale:
1. Order 1 Rule 10(2) of the C.P.C. provides, “addition of defendants only in two specified cases:
a) Parties who ought to have been joined as necessary parties;
b) Whose presence is necessary for complete and effective adjudication of all the questions involved in the suit as proper parties.”
2. The Appellant in the status of divorcee cannot claim interest in the suit premises and she cannot be held to say that she is a party without whose presence the court cannot adjudicate and pass the decree. She is, therefore, not a necessary party. The Appellant is not a person whose presence is necessary to enable the Court completely to adjudicate all the questions involved with the suit.
3. Moreover sub-tenancy can be made only when the tenant obtains the prior written consent of the landlord under Section 14 of the West Bengal Premises Tenancy Act and both the tenant and the sub- tenant have notified under Section 16(1).
Judgement:
In view of the proceedings done above, the present appeal is dismissed without any order as to costs.
Conclusion:
The court dismissed the appeal of appellant who filed a suit under Order 1 Rule 10(2) of C.P.C for being impleaded as a party Defendant before the Civil Judge.
The court contended that Appellant is not a necessary party, whose presence is necessary to enable the Court completely to adjudicate the questions involved with the suit.
Further the sub-tenancy was made not on the basis of the provisions of section 14 and 16 of West Bengal Premises Tenancy Act, 1956.
Drafted By: Param Mansinghka
Edited By: Tanvi Mahajan, Publisher, Law Insider
Published On: February 19, 2022 at 21:00 IST