Sushil Kumar Sarkhel v. Nanda Lal Sha — 1984 DIGILAW 49 (CAL)

ORDER This revisional application at the instance of the defendants 2 and 4 is directed against an order of the learned Munsif, 4th Court, Sealdah, dated August 25, 1981 in Title Suit No. 489 of 1975 expunging the names of the defendants 2 to 4 on the prayer of the plaintiffs. 2. The plaintiffs instituted the suit for eviction of the defendants on the allegation that the plaintiffs are the owners of the suit property and the defendant no.1 Dulal Chandra Sarkhel was a tenant in respect of the same on a monthly rental of Rs. 60/- according to English calendar month. The defendant no.1 has sublet the entire suit premises to defendant nos. 2, 3 and 4 without the previous consent in writing of the plaintiffs. The plaintiffs also allege that the defendant no. 1 was a habitual defaulter in payment of rent since December 1968. The suit premises are also reasonably required by the plaintiffs for their own use and occupation and for building and rebuilding. The suit was instituted on August 26, 1975. The defendant no. 1 did not contest the suit. The suit was contested by defendants 2, 3 and 4. A joint written statement was filed on behalf of defendant nos. 2 and 4 and defendant no. 3 contested the suit by a separate written statement. The main contention of defendant no. 2 was that he was the real tenant and his brother, defendant no. 1 was a benamdar. The defendant no. 2 Sushil Kumar Sarkhel denied allegations of the plaintiffs regarding the subletting. As regards default, the contention of defendant no. 2 was that he used to pay rent, but for sometime he could not pay rent and he filed an application under S. 17(2A)(b) of the West Bengal Premises Tenancy Act. The defendant no.2's petition under S. 17(2A)(b) of the West Bengal Premises Tenancy Act was to remain open till the trial of the suit (vide Order no. 35 dated 23.4.1980). The suit was fixed for hearing on several dates. Thereafter, on February 19, 1981 the plaintiffs filed an application stating that they did not want to proceed against the defendants 2, 3 and 4 and their names may be deleted. The said prayer was opposed by the defendants. 35 dated 23.4.1980). The suit was fixed for hearing on several dates. Thereafter, on February 19, 1981 the plaintiffs filed an application stating that they did not want to proceed against the defendants 2, 3 and 4 and their names may be deleted. The said prayer was opposed by the defendants. The learned Munsif by the impugned order has held that the contesting defendants were stated to be sub tenants according to the plaint and if they have any independent right the ejectment decree would not be binding upon them. The learned Munsif further held that if they have no independent right, then the ejectment decree will be binding upon them and they will be unnecessary party. In that view of the matter he expunged the names of defendants 2 to 4. Being aggrieved the defendants 2 and 4 have challenged the said order in the present Rule The defendant no. 3 is not a party to the present Rule. 3. Mr. Bose, learned Advocate for the petitioners has argued that the defendant no. 2 is the real tenant and this was urged by him in the written statement. The contention of Mr. Bose is that the application of the plaintiffs for expunging the name of defendants nos. 2 to 4 is not a bona fide one. The defendant no. 1, who is the name lender of defendant no. 2, was not contesting the suit and the plaintiffs are thus trying to defeat the right of the defendant no. 2, by obtaining an ex parte decree against the defendant No. 1. Referring to the case of A. C. Bhattacharjee v. Arun Krishna Roy & ors, 65 CWN 1175 Mr. Bose has argued that the question of benami is a relevant one and if benami is found, it would dispel the plaintiffs' allegation of sub-letting or transfer. Mr. Bose has further argued that the defendant no. 2 is regularly depositing rent and his application under S. 17(2A)(b) of the West Bengal Premises Tenancy Act is still awaiting decision in the instant suit Mr. Bose has thus submitted that the impugned order of the learned Munsif cannot be sustained as he acted illegally and with material irregularity in the exercise of his jurisdiction by expunging the name of the defendant without considering the specific contention of the defendant no. 2 about the tenancy being a benami one. 4. Mr. Bose has thus submitted that the impugned order of the learned Munsif cannot be sustained as he acted illegally and with material irregularity in the exercise of his jurisdiction by expunging the name of the defendant without considering the specific contention of the defendant no. 2 about the tenancy being a benami one. 4. Mr. Chatterjee, learned Advocate for the plaintiffs opposite parties has stated that the defendants 2 to 4 are neither necessary parties nor proper parties. Their names were included in the plaint through mistake and the learned Munsif was perfectly justified in expunging their names on the prayer of the plaintiffs Mr. Chatterjee argues that the plaintiffs have every right not to proceed against the defendants 2 to 4 and the plaintiffs cannot be compelled to proceed against them in this suit, if the plaintiffs, do not like to proceed against them Mr. Chatterjee has referred to several decisions in support of his contention. The cases relied upon by Mr. Chatterjee are Jagat Enterprises v. Anup Kumar Daw & ors, 1977(1) CLJ 186 , Samirendra Nath Keer & Anr v. Debi Prasanna Ghosh & Ors., 1978(2) CLJ 274, Banarsi Dass Durga Prashad v. Pannalal Ram Richhpal Oswal & Ors, AIR 1969 Punjab and Haryana 57, Motiram Roshanlal Coal Co. (P) Ltd. v. District Committee, Dhanbad & Ors., AIR 1962 Patna 357 and Mujtabai Begum & Anr. v. Mehbub Rahaman & Ors. AIR 1959 MP 359 . Mr. Chatterjee has argued that the plaintiffs should not be forced to proceed against any person when the plaintiffs do not want to proceed against him. The plaintiffs' allegation is that the defendant no. 1 was a monthly tenant and as such the defendants 2 to 4 who were alleged to be sub-tenants under the defendant no. 1 are neither necessary parties nor proper parties. 5. In Jagat Enterprises case (supra) it was held that in a suit for eviction of the lessee be sub-lessee who has not been impleaded as a party in such suit, has no right to apply for being added as a necessary party in that suit for the purpose of asserting his independent right or statutory protection, if he has any. In Jagat Enterprises case (supra) it was held that in a suit for eviction of the lessee be sub-lessee who has not been impleaded as a party in such suit, has no right to apply for being added as a necessary party in that suit for the purpose of asserting his independent right or statutory protection, if he has any. In Samirendm Nath's case (supra) it was held that a sub-tenant who has independent right under the West Bengal Premises Tenancy Act, would not he bound by decree and as such he was not a necessary party. If, on the other hand, be has no such independent right, he should be bound by the decree that may be passed against the tenant but even then he is not a necessary party. In AIR 1962 Patna 357 it was held that the plaintiff cannot be compelled to add a person as defendant against his wish. The other two decisions referred to by the learned advocate for the opposite parties also deal with the question of addition of party under Order 1 Rule 10 C.P Code. In AIR 1959 M. P. 359 it was laid down that the Court has discretion to add parties to a suit. This power has to be exercised in exceptional cases. The plaintiff must be allowed full discretion to put his case in the manner he likes and should not be forcibly involved into controversies with persons whom he does not wish to implead. In AIR 1969 Punjab & Haryana 57 there was also the question of addition of defendant when the plaintiff is opposed to such addition. 6. In the instant case there is no question of addition of the defendants against the wishes of the plaintiffs. The plaintiffs impleaded the defendants 2 to 4 as defendants in the suit and the suit proceeded for nearly six years and was fixed for peremptory hearing. The plaintiffs subsequently thought it fit to expunge the names of the defendants 2 to 4. In the application filed by the plaintiffs for expunging the names of defendants 2 to 4 the only reason assigned by the plaintiffs is that they do not wish to proceed against the defendants 2 to 4. Certainly the plaintiffs are at liberty not to proceed against any of the defendants, but that does not mean that their names should be expunged. Certainly the plaintiffs are at liberty not to proceed against any of the defendants, but that does not mean that their names should be expunged. The suit may be dismissed against them for non-prosecution. Order 1 Rule 10(21 C. P. Code also deals with striking out the name of any party improperly joined whether as plaintiff or defendant. So far as the defendants nos. 3 and 4 are concerned, there seems to be no difficulty if the plaintiffs want to strike out their names from the plaint Some difficulty, however, would arise in the case of defendant no. 2 as he has specifically claimed in his written statement that he is the real tenant and his brother, defendant no. 1, was a benamdar. 7. In A. C. Bhattacharjee v. Arun Krishna Roy & Ors. 65 CWN 1175, defendants 1 and 2 of that case filed written statements to the effect that the defendant no. 2 was the real tenant and the defendant no. 1 was merely his name lender. The defendant no. 1 did not appear at the trial and the suit was actually contested by the defendant no. 2 and it was decreed. Their Lordships held that the contention that the defendant no. 2 was the real tenant and the defendant no. 1 was his benamdar was the crucial question inasmuch as, if it was answered in the affirmative the consequences will be, whatever its effect be otherwise on the landlords, that the story of transfer will at once fall to the ground. It was also found in that case that the appellant of that case who was the dafendant no. 2, was all along paying rent though in the name of the defendant no. 1. Having regard to the principles of law laid down in this decision, it wil1 be material in the instant case to determine for the purpose of the question of subletting whether the defendant no. 1 Dulal was the benamdar of his brother Sushil. It is not a question of addition of a defendant under Order 1 Rule 10(2) C. P. Code. The defendant no. 2 remained defendant for nearly six years after some dates of peremptory hearing were fixed and when the defendant no. 2's application under S. 17(2A)(b) is awaiting decision in the suit. In the circumstances, I am of opinion that so far as the defendant no. The defendant no. 2 remained defendant for nearly six years after some dates of peremptory hearing were fixed and when the defendant no. 2's application under S. 17(2A)(b) is awaiting decision in the suit. In the circumstances, I am of opinion that so far as the defendant no. 2 is concerned, the learned Munsif has acted with material irregularity in not taking into account the contention of defendant no. 2 in this respect and tile circumstances in which the application was filed. The striking out of the name of defendant no. 2 was thus an improper exercise of jurisdiction and the defendant no. 2 has been seriously prejudiced the thereby. The defendant no. 3 has not challenged the order in the present Rule and the contention of defendant no. 4 has not also been seriously pressed before me. The learned Munsif's order thus in respect of defendant nos. 3 and 4 will not he interfered with. 8. In the circumstances, the impugned order of the learned Munsif is modified to the extent that the direction regarding expunging the name of the defendant no. 2 is set aside. The name of defendant no. 2 is restored. The Rule is thus disposed of. The learned Munsif will try to dispose of the suit as early as possible. There will be no order as to costs. Let the records be sent below forthwith Rule made absolute in part.