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2001 DIGILAW 96 (CAL)

Pallav Kumar Banerjee v. Chandrakala Lal

2001-02-22

BHASKAR BHATTACHARYA

body2001
JUDGMENT BHASKAR BHATTACHARYA, J. C.O. No. 1381 of 1988 1. This revisional application under section 115 of the Code of Civil Procedure is at the instance of a plaintiff in a suit for eviction of a tenant and is directed against Order No. 13 dated April 27, 1988 passed by the learned trial Judge, allowing an application under Order 1 Rule 10 of the Code of Civil Procedure filed by the opposite party no.2 for being added as party defendant. 2. The petitioner herein filed a suit being Title Suit No. 329 of 1987 in the 2nd Court of Munsif, Alipore for eviction of the opposite party no.1 on the ground of violation of clauses (m), (o) (p) of section 108 of the Transfer of Property Act and also on the ground that the opposite party no.1 has illegally sublet the property in favour of one M/s. Calcutta Salaine. 3. In such a suit, the opposite party no.2 came forward with an application under Order 1 Rule 10 of the Code thereby alleging that he was a tenant of the property and was in possession thereof. 4. The petitioner opposed such prayer thereby contending that the possession of the opposite party no.2 was that of a trespasser and that he had no right whatsoever. 5. The learned trial Judge by the order impugned herein has allowed the prayer of addition. The only reason assigned by the learned trial Judge is that in the fact of the case the opposite party no.2 should be given opportunity to contest the case. 6. Being dissatisfied, the plaintiff has filed the instant application. 7. At the time of hearing of this application none appeared for the petitioner but Mr. Banerjee, the learned counsel appearing for the opposite party no.2 has supported the order impugned and has placed strong reliance upon the decision of a Division Bench of this court in the case of Beni Madhab Mahrotra vs. Howrah Flour Mills Limited & another, 89 CWN 76. He has also relied upon the decision of a learned Single Judge in the case of A.K. Roy vs. J.C. Roychowdhury & another, 86 CWN 151. 8. He has also relied upon the decision of a learned Single Judge in the case of A.K. Roy vs. J.C. Roychowdhury & another, 86 CWN 151. 8. In the case of A.K. Roy vs. J.C. Roychowdhury & another (supra), a daughter-in-law of a tenant/defendant came up with an application for being added as defendant on the plea that her father-in-law was not the real tenant but her husband was the real one; due to pendency of a matrimonial suit between her husband and herself, neither the father-in-law nor the husband was taking any step. Thus, to safeguard her interest and that of her two minor children she prayed for addition in the suit. The learned trial Judge allowed such prayer. Guha, J did not interfere with the order passed by the learned trial Judge as His Lordship was of the view that for avoiding multiplicity of litigation and for setting at rest all the controversy, the addition was justified. With respect, I am unable to subscribe to the view expressed by His Lordship for the simple reason that even if the husband of the applicant was the real tenant. So long he was alive, the applicant did not acquire any interest in the tenancy and if the husband or the father-in-law decided not to contest or even to surrender the tenancy to the landlord she could not resist dispossession consequent to such surrender. Such being the position, no question of adding such a person or deciding the alleged right arose apart from the fact that the plea taken was foreign to the issues involved in the suit. 9. In the case of Beni Madhab Mahrotra vs. Howrah Flour Mills Limited & another (supra) in a suit for eviction of a tenant on the grounds of default and illegal subletting, the alleged subtenant came up with an application for being added as defendant on the ground that by virtue of a tripartite agreement he became a lawful subtenant and the landlord was in collusion with the tenant in order to evict him at a point when he had already filed a suit for declaration of his title as such and injunction. In such a fact the Division Bench presided over by Anil K. Sen, J (as His Lordship them was) held that effective and complete adjudication of the dispute is not limited to the parties to the suit only and the court could not shut its eyes to bona fide claim put forward by third parties to the subject matter in the suit, which if gone into, would help the court in making effectual and complete adjudication of the dispute over the subject matter though not in a manner raised by the parties to the suit. The Division Bench thus added the applicant as proper party to the suit though not a necessary party. 10. With great respect to the learned Judges of the said Division Bench, I am unable to follow the aforsaid view for the following reasons:- Am unable to follow the aforsaid view for the following reasons:- (a) Their Lordships took no notice of the decision of an earlier Division Bench in the case of Jagat Enterprises vs. Anup Kumar Daw & other, AIR 1977 Cal 209 , taking a contrary view that a subtenant in such a case has his right to assert and defend his independent right or to challenge any decree as an outcome of fraud in other appropriate proceeding initiated by him. Thus, the decision in the case of Beni Madhab Mahrotra (supra) cannot be binding as precedent in support of the proposition of law that in a suit for eviction of a tenant, a subtenant is either a necessary or a proper party. Even in the case of Samirendra Nath Keer vs. Debi Prasanna Ghosh & other, 1978(2) CLJ 274, Anil K. Sen, J himself sitting singly took a contrary view and I respectfully subscribe to the view taken by His Lordship in the case of Samirendra Nath Keer (supra) as in my opinion the said decision lays down correct proposition of law. (b) The view taken by their Lordships is also conflict with the one taken by the Apex Court in a subsequent case of Ramesh H. Kundanmal vs. Municipal Corporation of Greater Bombay, 1992(2) SCC 524 . (b) The view taken by their Lordships is also conflict with the one taken by the Apex Court in a subsequent case of Ramesh H. Kundanmal vs. Municipal Corporation of Greater Bombay, 1992(2) SCC 524 . While considering the object and scope of Order 1 Rule 10 of the Code the Apex Court in paragraph 14 made the following observations:- "It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule than its main object. The person to be joined must be one whose persence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of the action and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action." (Emphasis supplied) 11. Applying the aforesaid test to a case of eviction of a tenant it is apparent that a subtenant who does not come within sub-section (2) of section 13 of the West Bengal Premises Tenancy Act cannot be added in a suit. However, if in such a suit any finding is made that the subtenant did not give notice under section 16 or in otherwords, the subtenant is not one covered under section 13(2) of the said Act, such finding can be resisted by the subtenant in the proceeding for execution of decree under Order 21 Rule 101 of the Code if such subtenant wants to contend that he gave notice under section 16 of the Act. (See paragraph 11 of the judgment of the Apex Court in the case of Shantilal Rampuria vs. M/s. Vega Trading Corporation, AIR 1989 SC 1819 ). (See paragraph 11 of the judgment of the Apex Court in the case of Shantilal Rampuria vs. M/s. Vega Trading Corporation, AIR 1989 SC 1819 ). Before commencement of execution case, such subtenant can also file separate suit asserting such claim. 12. Now turning to the fact of the present case, I find that the opposite party no.2 not even claimed any subtenancy through opposite party no.1 but asserted his independent right as tenant. In the suit the issue is whether the petitioner is entitled to evict opposite party no.1 on the ground of subletting in favour of one M/s. Calcutta Saline or on the ground of violation of clauses (m), (o), (p) of section 108 of the Transfer of Property Act. The opposite party no.2 wants adjudication of a different issue whether he is a tenant, an issue foreign to the suit. Thus, his remedy lies either by filing a fresh suit for declaration of his tenancy right or to resist the decree if obtained by way of adjudication under Order 21 Rule 101 of the Code. Therefore, the learned trial Judge acted illegally and with material irregularity in adding opposite party no.2 in the suit although he is neither a necessary nor a proper party. 13. The revisional application is thus allowed. Order impugned, allowing application under Order 1 Rule 10 of the Code is set aside. 14. No costs. C.O. No. 1510 of 1988 In view of my order passed in the above civil revisional application rejecting an application of the present petitioner under Order 1 Rule 10 of the Code, the present revisional application has become infructuous as the petitioner has not locus standi to challenge the order allowing an application under Order 39 Rule 7 of the Code, the petitioner being no longer party to the proceeding. The application is thus dismissed. No costs. The learned trial Judge is directed to dispose of the suit as expeditiously as possible. C.O. No. 1381 of 1998 allowed. C.O. No. 1510 of 1988 dismissed.