Moses Pandian And ANR. v. K.Jayaraj

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] ...

SA/1/2021 IA NO: CAN/1/2021 Moses Pandian and Another ...

Appellants Vs.

K. Jayaraj ...

Respondent Mr. Arul Prasanth, Advocate ... for the appellants December 7, 2021 [GNC] Item No.1 The appellants seek to prefer second appeal against the judgment and order dated October 7, 2021 passed by the First Appellate Court in Other Appeal No.8 of 2015. Learned advocate appearing for the appellants submits that the appellant No.1 was a tenant under the respondent No.1. The appellant No.1 is a Doctor by profession. The appellant No.2 is the Compounder under the appellant No.1. The appellant No.1 was issued a notice under Regulation 13(1) of the Andaman and Nicobar Islands Rent Control Regulations, 1964 read with the provisions of Section 106 of the Transfer of Property Act, 1882 and that no such notice was issued to the appellant No.2. Such issue was sought to be raised as an issue of maintainability of the suit before the Trial Court. Such issue was also canvassed before the First Appellate Court. Both the judgments do not reflect any discussion on such issue.

Learned advocate appearing for the appellants submits that the suit as filed is bad in law. It was filed through a power of attorney. The power of attorney was never marked as an exhibit at the trial. Consequently, notwithstanding the fact the plaintiff deposed in the suit, the suit is bad as it was filed by a power of attorney holder. Such power of attorney was not brought on record. It is submitted that the appellant No.1 made an application to such effect which was not dealt with. He draws the attention of the Court to the order No.320 in this regard passed by the Trial Judge. He submits that the evidence of the appellants were closed on February 27, 2014 by order No.298 by the Trial Judge.

Learned advocate for the appellants draws the attention of the Court to the ground No.V of the Memorandum of Appeal. He submits that the Prosecution Witness No.4 deposed that Pandian handed over the premises to one Satish Kumar for the purpose of running Ayurvedic store there. Such person, namely, Satish Kumar is not a party/defendant in the suit and therefore, the suit is bad for non-joinder of the necessary parties.

A suit for eviction was initially decreed in favour of the plaintiff by judgment dated April 23, 2015. A First Appeal was carried from the same. The First Appellate Court affirmed the judgment dated April 23, 2015 of the learned Trial Judge. A second appeal was preferred. At the stage of admission, the Second Appellate Court by the judgment and order dated September 10, 2021 set aside the judgment of the First Appellate Court and remanded the matter for fresh hearing by the First Appellate Court.

On remand, the First Appellate Court affirmed the judgment of the learned Trial Judge dated April 23, 2015 by the judgement dated October 7, 2021. It is against the judgment of the First Appellate Court dated October 7, 2021, that the appellants seek to prefer the second appeal therefrom. The appellant No.1 admittedly was a tenant under the plaintiff/respondent. The appellant No.2 was found to be in occupation in the property claiming through the appellant No.1. The appellant Nos.1 and 2 were defendants in the suit for eviction.

Both the defendants contested the suit.

The appellants/defendants sought to raise an issue of maintainability in the suit. The issue of maintainability sought to be raised by the appellants largely resonated around the point of the power of attorney not being brought on record at the trial of the suit. According to the appellants as the suit was filed by a power of attorney holder and the power of attorney itself not being produced and marked exhibit at the trial the suit was not maintainable.

This issue of maintainability was dealt with by both the learned Trial Judge as also the judgment of the First Appellate Court on remand. Both the Courts found that the plaintiff himself deposed at the trial of the suit. The point of nonexhibit of the power of attorney is a non-issue in the facts of the case. A suit filed through power of attorney with the plaintiff thereafter coming to the witness box to depose in such suit cannot be said to be not maintainable. At best, it is a curable defect with the plaintiff curing such defect by coming to the witness box to depose before the Court.

We find no infirmity in such findings returned by the two Courts. In any event, the same does not raise a substantial question of law for the second appeal to be admitted. There is another aspect with regards to the issue of maintainability of the suit, that is, non-joinder of a party. This again was dealt with by both the Courts and in the facts of the case, both the Courts found that the so-called non-joinder of the person claimed was not fatal to the suit. Such person was found not to be a necessary party to the suit.

In the facts of the present case, there are two persons found to be in possession of the suit premises. The appellant No. 1 is the tenant. The appellant No. 2 is claiming through the appellant No. 1. The third person also is not shown to be imbibed with any higher or better right than the appellant No. 1. If at all, the right of such person is through the appellant No. 1 Therefore, it cannot be said that the third person needs to be

added or that the third person is a necessary party to the suit therefore preventing the two Court from passing a decree. The next issue raised by the appellants is that the appellant No.2 not being issued a notice under Section 13(1) of the Andaman and Nicobar Island Rent Control Regulations, 1964 read with Section 106 of the Transfer of Property Act, 1882. This point apparently was not canvassed before any of the Courts below.

Learned advocate appearing for the appellants submits that the point being a point of law can be raised at any point of time. With the deepest of respect, the point sought to be raised is a mixed question of law and the fact as to whether notice was actually issued or not to the defendant No.2 i.e. the appellant No.2 in the present appeal is a question of fact. This ought to have been raised before the learned Trial Judge. It was not raised. The issue was also not raised before the First Appellate Court. Moreover, the appellant No. 2 is not claiming any independent or higher or better right that the appellant No. 1. As noted above, the appellant No. 2 is claiming a right through the appellant No. 1 with the appellant No. 1 being the admitted tenant of the respondent. Consequently, we are unable to hold that the appellants are entitled to raise such point at this stage. We do not find any substantial question of law to arise in the second appeal. We are, therefore, unable to admit the second appeal.

Accordingly, SAT/1/2021 stands dismissed. Consequently, IA No.CAN/1/2021 also stands dismissed.

(Debangsu Basak, J. ) (Jay Sengupta, J. )