Order 22 Rule 9 CPC | Admission In An Abated Suit Does Not Constitute Estoppel Against Landlord In A Fresh Eviction Proceeding: Calcutta High Court

"Mere filing of the earlier application in the previous suit cannot be said to operate as estoppel against the respondents insofar as the status of the appellant is concerned." Calcutta High Court, in a judgment delivered on October 5, 2026, held that an admission made in an interlocutory application within a suit that subsequently abated does not bind the plaintiff in a fresh eviction proceeding.

A division bench comprising Justice Sabyasachi Bhattacharyya and Justice Sandip Kumar De clarified that legal status, particularly under the West Bengal Premises Tenancy Act, 1997, is determined by operation of law and cannot be circumvented by the principles of estoppel arising from abandoned pleadings in a prior, non-concluded suit.

The appellant, an heir of the original deceased tenant, challenged a concurrent decree of eviction passed by the lower courts, which declared him a trespasser. The appellant contended that the respondents had previously filed an application under Order XXII Rule 9 of the CPC in an earlier, now-abated suit, wherein they had effectively admitted that the heirs were tenants. The appellant argued that this prior admission barred the respondents from later labeling him a trespasser under Section 2(g) of the 1997 Act.

The court was tasked with determining whether a failed application for substitution in an abated suit creates an estoppel against a landlord in subsequent litigation regarding the status of the defendant. Additionally, the court examined whether the suit was barred by the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, and if minor internal partitions in the suit premises warranted a finding of misdescription.

Effect of Abatement on Prior Admissions

The court emphatically rejected the plea of estoppel, noting that once the earlier suit abated, the pleadings therein lost their operative force. Because the respondents did not proceed with the substitution application, they were not bound by any purported admissions contained therein. The court noted that the status of an occupant is a matter of statutory mandate.

Status Determined by Operation of Law

The bench observed that the appellant’s status as a trespasser or tenant is governed strictly by Section 2(g) of the 1997 Act. Consequently, the court held that since the status is determined by operation of law, there is no scope for the application of estoppel.

"Moreover, the status of the appellant is by operation of Section 2(g) of the 1997 Act, that is, by operation of law, against which no estoppel lies."

Scope of the Thika Tenancy Act

Regarding the jurisdiction issue, the court reaffirmed that the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, are restricted to proceedings against 'bharatias' or tenants. Since the decree was passed against the appellant in his capacity as a trespasser, the procedural rigours and the requirement to approach the Thika Controller under Section 8 of the Act do not apply to such eviction suits.

Consistency of Suit Property Description

The appellant’s contention regarding the internal partition of the suit room was dismissed as immaterial. The court held that such internal modifications do not change the fundamental character of the property as described in the plaint schedule. The court remarked that the identity of the suit premises remained consistent throughout the litigation, notwithstanding minor physical alterations.

"It is immaterial whether there was an internal partition in the suit room, which essentially remained the same in character as described in the schedule of the plaint."

Finding no substantial question of law to warrant interference under Order XLI Rule 11 of the CPC, the High Court dismissed the second appeal and the connected application. The court granted the appellant liberty to approach the executing court for reasonable time to vacate the premises, leaving the decision to the executing court’s discretion in accordance with the law.

Date of Decision: 05 October 2026