IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5785 OF 2002

Dulal Choudhary and Ors.      ...Appellant(s)

Versus

Hirak Roy Chowdhury and Ors.      ...Respondent(s)

O  R  D  E  R

Heard learned counsel for the parties.

Sri Rai Mohan Chaudhury and his wife Smt. Jyotsna Chowdhury filed a  suit  against  Smt.  Sulata  Ghosh  for  her  eviction  from  premises  bearing  No.20-B,  

Ballygunje,  Station  Road,  Calcutta,  on  the  grounds  of  default,  damage  to  the  premises,  their  bonafide  need  and  sub-letting  to  Sri  Bireswar  Roy  Chowdhury  

without their knowledge and consent.  The defendant contested the suit by alleging  that there did not exist landlord-tenant relationship between the parties.  She also  

denied the allegations of default, damage to the property and sub-letting.  She pleaded  that the premises were let out to her husband late Sri Jitendra Nath Ghosh by the  

erstwhile owner, Sri Janak Nath Sen and after disposal of the suit premises by Sri  Sen,  her  husband  became  tenant  under  Sri  Dulal  Chowdhury  and  Sri  Sunil  

Chowdhury. She also claimed her brother, Sri Bireswar Roy Chowdhury along with  members of his family were residing in suit premises since 1947 and that there was no  

question of sub-letting. ....2/-

- 2 -

During  the  pendency  of  the  suit,  one  of  the  plaintiffs,  namely,  Sri  Rai  Mohan  Chowdhury  died  and  his  legal  representatives  were  brought  on  record.  

Defendant Smt. Sulata Ghosh also died on 17.8.1986.  Thereupon, an application was  made  by  the  plaintiffs  on  17.11.1986  for  bringing  on  record  Sri  Hiarak  Roy  

Chowdhury  (respondent  no.1  herein)  as  legal  representative  of  the  deceased  defendant.   Later  on,  the  plaintiffs  filed  an  application  for  amendment  of  the  

substitution petition and bringing on record Sri Madan Ghosh and Sri Bankim Ghosh  sons of late Subodh Chandra Ghosh, as legal representatives of defendant-Smt. Sulata  

Ghosh,  by  claiming  that  they  were  the  heirs  of  the  original  tenant,  namely,  Sri  Jitendra  Nath  Ghosh.   They  also  applied  for  condonation  of  delay  in  filing  the  

application.   The trial  Court allowed the application of the plaintiffs  and ordered  substitution of Sri Bankim Ghosh as the defendant being the legal representative of  

the husband of Sulata Ghosh.  Soon thereafter, respondent no.1 filed an application  under Order 1 Rule 10 read with Section 151 of the Code of  Civil  Procedure for  

being impleaded as a defendant by claiming that he was the only surviving heir of the  deceased defendant and was living with her. His application was allowed and he was  

impleaded as defendant no.2.  Thereafter, he filed written statement to contest the  suit.   He denied the  plaintiffs  assertion regarding subletting  and claimed  that  his  

family was living in the tenanted premises since long being direct  relations of  the  deceased tenant and they were having one and joint mess.  Sri Bankim Ghosh filed an  

affidavit  dated  8.9.1988,  stating  therein  that  there  never  existed  any  relationship  between him and the deceased; that he never stayed in the tenanted premises; that the  

deceased had been living with her brother and brother’s son since long and that he  does not have any claim over the tenanted premises.   

....3/-

- 3 -

The  trial  Court  decided  the  issue  of  default  against  the  plaintiffs  but  decreed the suit on the ground of sub-letting.  The judgment and decree of the trial  

Court  were  confirmed  by  the  lower  appellate  Court.   However,  the  High  Court  allowed  the  Second  Appeal  filed  by  respondent  No.1  and  dismissed  the  suit  for  

eviction  after  holding  that  the  suit  had  abated  because  steps  were  not  taken  for  bringing her legal representatives on record within the period of limitation.  So far as  

the finding recorded by the Trial Court and confirmed by the Appellate Court on the  question of subletting is concerned, the High Court was of the view that the tenant,  

i.e.,  Sulata Ghosh,  could not  have been penalised for the act  of  sub-letting of  her  husband.  Hence, this appeal by special leave.

Learned counsel for the appellants argued that the High Court committed  an error  by  recording  a  finding  that  the  suit  had abated  because  application  for  

bringing on record the legal representatives of the deceased was not filed within time.  Learned counsel pointed out that the application for bringing on record respondent  

No.1 as legal representative of Sulata Ghosh was filed on 17.11.1986 and, therefore,  the suit could not be treated to have abated.  Learned counsel then submitted that  

application filed on 11.5.1988 for amendment of the substitution application, which  was accompanied by an application for condonation delay was allowed by the trial  

Court and as that order was not challenged by respondent No.1, the High Court was  not justified in recording a finding that the suit filed by the plaintiffs  had abated.  

Learned counsel emphasized that even ....4/-

- 4 -

though the trial Court  had ordered substitution of  Bankim Ghosh in place of the  original defendant, namely, Sulata Ghosh, in view of the impleadment of respondent  

No.1 as defendant  No.2,  the High Court was not justified  in declaring the suit  as  having abated.  Learned counsel for the respondents supported the finding recorded  

by the High Court on the issue of abatement of the suit by arguing that even though  respondent No.1 was entitled to be brought on record as legal representative of the  

defendant, the plaintiffs dropped his name and applied for substitution of Bankim  Ghosh and in this view of the matter, the High Court was fully justified in declaring  

the suit as abated.   In our view, the High Court was not justified in holding that the suit was  

abated  because,  as  mentioned above,  the  application  for substitution  was filed on  17.11.1986  and  after  amendment  thereof,  the  trial  Court  ordered  substitution  of  

Bankim Ghosh in place of Sulata Ghosh.  The application for impleadment filed by  respondent No.1 was also allowed by the trial Court.  The order of substitution by the  

trial Court was not challenged by respondent No.1 in the first and second appeal.  Therefore, the High Court did not have any occasion to go into the issue of abatement  

of the suit and make a declaration in that respect.  So  far  as  the  finding  of  the  High  Court  in  relation  to  sub-letting  is  

concerned, we find that the trial Court after taking into consideration the evidence  adduced on behalf of the parties, came to the conclusion that the plaintiffs were able  

to prove the case of sub-letting.  This finding was confirmed by the lower appellate  Court  in  appeal.   This  was  a  pure  finding  of  fact,  which  could  not  have  been  

interfered with by the High Court in second appeal. ....5/-

- 5 -

Accordingly, the appeal is allowed, impugned judgment rendered by the  High Court is set aside and the second appeal filed by Respondent No.1-Hirak Roy  

Chowdhury  before  the  High  Court  is  dismissed.  The  respondents  are,  however,  granted time till 31st October, 2009, to vacate the premises in question upon filing  

usual undertaking in this Court within four weeks from today. It is directed that in  case the respondents fail to vacate the premises in question within the aforesaid time,  

it  would be open to the decree holder to file  an execution petition for delivery of  possession and in case such a petition has been already filed, an application shall be  

filed  therein  to  the  effect  that  the  respondents  have  not  vacated  the  premises  in  question within the time granted by this Court. In either eventuality, the Executing  

Court is not required to issue any notice to the respondents. The Executing Court will  see that delivery of possession is effected within a period of fifteen days from the date  

of  filing  of  the  execution  petition  or  the  application  aforementioned.  In  case  for  delivery of possession any armed force is necessary, the same shall be deputed by the  

Superintendent of Police within forty eight hours from the date requisition is received  therefor.  It is also directed that in case anybody else, other than the respondents, is  

found in possession, he shall also be dispossessed from the premises in question. No costs.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, April 21, 2009.