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2008 DIGILAW 690 (CAL)

Kayum Golder v. M. H. Md. Ally

2008-07-15

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) 3y this application under Article 227 of the Constitution of India Order No. 18 dated 18.2.2008 passed by the learned Judge, 4th Bench, Presidency Small Causes Court at.Calcutta in Ejectment Suit No. 275/05-E rejecting the prayer of the petitioner praying for being added as a party to the Ejectment Suit under Order 1 Rule 10 (2) C.P.C. is under challenge. (2.) The opposite party No.1 who is the plaintiff in the suit instituted against the defendant/opposite party No.2 prayed for eviction of the defendant from the suit premises on the ground of default in payment of rent and of sub-letting the suit premises to third parties without the knowledge and consent of the plaintiff. It was the plaint case that the said opposite party No.2 and one Anwar Hussian were joint tenants under the plaintiff/opposite party No.1 in the suit premises at monthly rent of Rs.180/-payable according to the English calendar. Anwar Hussian died on 25.9.1995 and by survivorship the opposite party No.2 became the sole tenant under the plaintiff/opposite party No.1. The opposite party No.2 who was the sole tenant/defendant in the suit filed a written statement challenging the plaint narrative that he had sub-let the suit premises without the knowledge and prior consent of the opposite party No.1/plaintiff in the suit premises. It was specifically averred in the written statement by the opposite party No.2 herein that he is a lawful tenant and there was no ground of eviction of him from the suit premises. (3.) In the context of the above pleadings the present petitioner Dr. Kayum Golder and three others namely Sk. Ajijul Hussian, Md. Sahidul Islam Gain and Md. Sirajul Islam filed a petition under Order 1 Rule 10(2) read with Section 151 C.P.C. praying for being added as party defendants in the suit for eviction on the ground that they have been residing in the suit premises for last 20 years and it was arranged between the landlord and the tenants that rent receipt would be issued in the name of senior tenant, as such it was issued in the name of one Golam Kabir and another Mr. Kadam Rasul. Kadam Rasul died, and then on his death rent receipts used to be issued in the name of Golam Kabir and Anwar Hussian since July 1987. Kadam Rasul. Kadam Rasul died, and then on his death rent receipts used to be issued in the name of Golam Kabir and Anwar Hussian since July 1987. The present petitioner all along paid his portion of rent to the said Golam Kabir and Anwar Hussian. Golam Kabir having died rent receipt used to be issued in the name of the present defendant/ opposite party No. 2 herein and Anwar Hussian. Anwar Hussian died on 25.9.1995 leaving his sons and daughters who used to live in the suit premises. On the death of Anwar Hussian rent receipt was being issued in the name of his son, Anarul Azam who entered into an agreement on 11.8.99 with the aforesaid third party petitioners and other defendants that they wpuld be all joint defendants and would enjoy tenancy. Therefore, the said five persons prayed for being added as party to the suit. (4.) The opposite party No.1 herein who is the plaintiff in the suit filed a written objection against the petitioner herein challenging their contention that they were joint defendants in the premises. According to the plaintiff/ opposite party No.1, the opposite party No.2 the defendant produced before him a death certificate of the other joint tenant Anwar Hussian and on his death the said opposite party No.2 has been the sole tenant in the premises. It has been contended that after the purchase of the property from the original owner, Baidyanath Dutta on 1.5.95 the plaintiff/ opposite party No.1 had been receiving rent from the two joint tenants namely the present defendant/ opposite party No.2 and Md. Anwar Hussian who is now dead. It has been contended in this petition of objection that the present petitioners are sub-tenants who were illegally inducted in the premises by the defendant and accordingly the petition under Order 1 Rule 10 (2) C.P.C. is without anv merit. (5.) Learned Trial Court by a very lengthy and speaking order upon hearing the parties dismissed the petition. (6.) I have heard Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner and Mr. Shyama Prasad Roy Chowdhury, learned Senior Advocate appearing for the opposite party No.1. Before the learned Trial Court five persons filed a joint petition on 14.1.08 under Order 1 Rule 10(2) C.P.C. but only one of them, namely Dr. (6.) I have heard Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner and Mr. Shyama Prasad Roy Chowdhury, learned Senior Advocate appearing for the opposite party No.1. Before the learned Trial Court five persons filed a joint petition on 14.1.08 under Order 1 Rule 10(2) C.P.C. but only one of them, namely Dr. K. Colder is the petitioner in this application under Article 227 of the Constitution of India challenging the order of rejection of the petition. Mr. Aniruddha Chatterjee, learned Advocate for the petitioner has taken me to the petition filed under Order 1 Rule 10(2) C.P.C. wherein it was averred that system of payment of rent was that rent would be payable by all the joint tenants to the senior tenant who would get rent receipt in his name, and this system has been in practice for 30 years. Md. Golam Kabir and Kadem Rasul were the persons in whose names the rent receipts used to be issued. Kadem Rasul died and then in place of Kadem Rasul rent receipts used to be issued thenceforth in the names of Golam Kabir and Anwar Hussian since 1987. Golam Kabir having died rent receipts used to be issued in favour of the present defendant/ opposite party No. 2 and Anwar Hussian and Anwar Hussian having died rent receipt was issued in the name of his son Anarul Azam. Anarul Azam entered into an agreement on 11.8.99 with the present petitioners and other third parties whereby they declared themselves to be the joint tenants and that they would enjoy the tenancy. I have been taken to that agreement entered into by the present petitioner third party and the four others who jointly filed the petition under Order 1 Rule 10(2) C.P.C. and the said Anarul Azam. Ration cards and voters identity cards have been produced to show that the third parties have been living in the suit premises. Xerox copies of rent receipts have been produced to show that sometime in June 1987 rent receipts were issued in the name of Golam Kabir and Kadem Rasul and then in the name of Golam Kabir and Anwar Hussian and then in the name of Sajamal (opposite party No. 2) and Anwar Hussian. Thus, Mr. Xerox copies of rent receipts have been produced to show that sometime in June 1987 rent receipts were issued in the name of Golam Kabir and Kadem Rasul and then in the name of Golam Kabir and Anwar Hussian and then in the name of Sajamal (opposite party No. 2) and Anwar Hussian. Thus, Mr. Chatterjee argued that all the occupants of the house are joint tenants who by an arrangement amongst themselves paid rent to the senior tenant who in turn would pay rent to the landlord who used to grant rent receipt to the said senior tenant. Therefore, with the help of the decision in Sabitri Devi v. District Judge, Gorokhpur and Ors., reported in 1999 (2) SCC 577 it has been argued that where avoidance of multiplicity of proceeding is one of the objects of the provision of Order 1 Rule 10(2) C.P.C., it is imperative that the third parties who want to be added as a party to the suit should be so added as party because if they are not added today in the suit then they would definitely be in a position to file application under Order 21 Rule 99/101 C.P.C. in the event the suit is decreed. Mr. Chatterjee argued that presence of the third parties of whom the petitioner is one such in the suit is necessary to determine whether the said third parties are joint tenants or sub-tenants and for effective disposal of the suit their presence could in no way be doubted but the learned Trial Court on mis-appreciation of law rejected the petition. (7.) Mr. Roychowdhury, learned Senior Advocate appearing for the opposite party No. 1 submitted that where the plaintiff who is to shoulder the carriage of his suit has alleged the third parties to be the sub-tenants illegally inducted by the opposite party No. 2 the mere claim of the third parties that they were not the sub-tenants but joint tenants cannot force the plaintiff to accept them as party defendants. It has been argued that the plaintiff does not recognise the third parties as joint tenants. It is their case and the law is well settled that the decree against the tenant binds the sub-tenant. It is submitted that plaintiffs take the risk of proceeding with the suit alone against the defendant who is now the sole tenant to the exclusion of others who are dead. It is their case and the law is well settled that the decree against the tenant binds the sub-tenant. It is submitted that plaintiffs take the risk of proceeding with the suit alone against the defendant who is now the sole tenant to the exclusion of others who are dead. If the plaintiff fails in the suit it does not cause any loss to the third parties. If the plaintiff succeeds the decree would bind the third parties no matter whether they would prefer in such circumstance file an application under Order 21 Rules 99/101 C.P.C. It is submitted that the very argument that tf the third parties are not accepted as party defendant under Order 1 Rule 10(2) C.P.C. then they would have a scope of filing an application under Order 21 Rules 99/101 C.P.C. proceeds upon a mis-conception of law, and acceptance of such an argument would render the provision of Order 1 Rule 10(2) C.P.C. to be nugatory and this would be a dead provision in the statute. Mr. Roychowdhury submits that it must not be forgotten that the provision of Order 21 Rules 99/101 C.P.C. is an independent provision and that provision has to be availed of by a third party or stranger who must not be claiming interest qua the judgment debtor, and in fact the order passed under Order 21 Rules 99/101 C.P.C. is deemed to be decree and the claim of the third parties cannot be agitated by any separate suit. (8.) Upon hearing the learned Counsels for the parties and on perusal of the order of the learned Trial Court it is required to examine whether the petitioner who is one of the petitioners before the learned Trial Court should be added as a party to the suit as defendant. The learned Trial Court has rightly observed that for determining the question as to who is the necessary party the tests are (a) there has to be a right to relief against the third party in respect of the matter in question in the suit and (b) it should not be possible for the Court to pass an effective decree in the absence of such party. The opposite party No. 1 /plaintiff does not admit the third party to be a joint tenant with the opposite party No.2, the defendant. The opposite party No. 1 /plaintiff does not admit the third party to be a joint tenant with the opposite party No.2, the defendant. It is the claim of the plaintiff/ opposite, party No.1 that the defendant/opposite party No.2 has sublet portions of the property to the third parties. Whether the allegation as against the defendant is true or not is a matter of trial. Significantly, in the written statement the defendant/ opposite party No.2 stoutly denied the allegation that he has sublet a portion of the premises to third parties. He has not asserted that the present petitioner and other persons who want to be impleaded as party defendant really joint tenants with him. Had it been the plea of the defendant that the petitioner along with others is also a joint tenant with him then in that case the position would have been otherwise. Where the plaintiff alleges the third parties to be sub-tenants and the defendant tenant denies the allegation but does not endorse the claim of the third parties, the said third parties cannot be impleaded as party defendants on the simple claim of them that they were not sub-tenants but joint tenants. The law is well settled that no sub-tenant has to be impleaded in suit for eviction instituted by the landlord against the defendant tenant. Under the new West Bengal Premises Tenancy Act, 1997 which governs the instant suit there is a provision in Section 26 (1) which provides that if after the commencement of the Act any premises is sublet either in whole or in part by the tenant with the previous consent in writing of the landlord the tenant and every such sub-tenant shall give notice to the landlord of such sub-tenancy within one month from the date of such sub-Jetting. This is not the case here. Where sub-tenancy was granted by the tenant before the commencement of the Act, 1997 without the consent of the landlord then under sub-section (2) of Section 26 every such sub-tenant has to give notice to the landlord of such sub-letting. Unquestionably, there was no privity of contract between the opposite party No.1 and the petitioner in so far as his alleged status of tenancy is concerned. Admittedly, rent receipts do not help the petitioner either. Unquestionably, there was no privity of contract between the opposite party No.1 and the petitioner in so far as his alleged status of tenancy is concerned. Admittedly, rent receipts do not help the petitioner either. Their presence in the suit as party defendants is not necessary simply at their asking on the ground that they were not sub-tenants. Where plaintiff alleges the third parties to be the sub-tenant the burden of proof is upon him. In the decision in Stockman Boarding House v. Life Insurance Corporation of India and Ors., reported in AIR 2000 Cal 219 it was held by this Court that sub-tenant is not a necessary party if the suit for eviction when brought against the tenant. Mr. Chatterjee argued for the petitioner that there was a collusion between the plaintiff and the defendant and the defendant wanted to evict the third parties. The point of collusion has no objective foundation at the present stage since trial has not commenced and the written statement does not lend support to such presumption. The defendant denies in strong words having sublet the premises. The defendant asserts himself to be a lawful .tenant in the premises. The plaintiff claims to have purchased the property from one Baidyanath Dutta on 21.4.95 and joint tenants Anwar Hussian and the present defendant are said to have attorned their joint tenancy in favour of the present landlord/plaintiff and they paid rent till April 1998 on the basis of the letter of attornment issued to them by the previous owner Baidyanath Dutta. Annexure-A is a letter of attornment by Baidyanath Dutta to the defendant asking him to pay rent henceforth after 1.5.95 to the present plaintiff. Similarly, the present plaintiff also through his Advocate asked the defendant to pay rent to the plaintiff consequent upon purchase of the property by the present plaintiff. Anwar Hussian by the letter dated 15.7.99 informed the plaintiff that one of the joint tenants died on 25.9.95 and on the death of the joint tenant he became the sole tenant. It is neither the case of the plaintiff nor is it the case of the third parties that the tenancy was heritable tenancy. Where the plaintiff does not recognise the third parties as joint tenants he cannot be forced to accept the third parties in the suit as party defendants because carriage of the suit is of the plaintiff. It is neither the case of the plaintiff nor is it the case of the third parties that the tenancy was heritable tenancy. Where the plaintiff does not recognise the third parties as joint tenants he cannot be forced to accept the third parties in the suit as party defendants because carriage of the suit is of the plaintiff. The alleged agreement between Anarul Azam and the third parties whereby they declared by and between themselves that they would enjoy the tenancy is of no consequence so far as the plaintiff is concerned. It is their own declaration by and between themselves which does not bind the plaintiff. Mr. Chatterjee cited an unreported decision of the Supreme Court in Khaitan Consultants (P) Ltd. v. Saroj Kanti Gupta and Ors., (Civil Appeal Nos. 15107-15110 of 1996) dated 29.11.96 wherein because of occupation of a part of the premises by respondent Nos. 1 to 5 they were allowed to be impleaded as proper parties in the suit. The facts were different in the case. Allegedly, the applicants in the case were given leave and licence the suit premises and Their Lordships held that whether leave and licence was subsisting or withdrawn was a matter for trial and that question could be determined only in the presence of the applicants in view of the fact that M/s. Pine and Pine was no longer in existence. Mr. Chatterjee then cited a decision in Jaharlal Saha and Ors. v. Pradip Saha and Ors., reported in 2006 (1) CHN 514. The said decision dealt with question relating to doctrine of representation and non- joinder of party, pleaded in the written statement and notice of eviction. There in the suit for eviction on the death of the original tenant some of the heirs were made parties excluding all his daughters who were also excluded in the notice under Section 13 (6) of the Act. The contesting defendants raised the plea of non-joinder of parties and challenged the notice. The Trial Court recorded decree for eviction but the First Appellate Court reversed the decree. The contesting defendants raised the plea of non-joinder of parties and challenged the notice. The Trial Court recorded decree for eviction but the First Appellate Court reversed the decree. In second appeal the High Court upheld the view of the First Appellate Court and dismissed the appeals under Order 41 Rule 11 of the C.P.C. Here it is nobodys case, neither of the plaintiff nor of the defendant nor of the third parties that the tenancy is a heritable tenancy or that occupants of the house are all tenants in common. The third parties are also not the proper parties. Avoidance of multiplicity of proceeding is no doubt one of the underlying principles of Order 1 Rule 10 (2) C.P.C. but where the third party is not found to be a proper party, let alone necessary party, and where presence of third party is not necessary for the plaintiff or for the defendant to pursue or contest the suit, it is not necessary that the petitioner should be impleaded as party defendant in the suit. (9.) In the circumstances, I do not think that the learned Trial Court was not legally justified in rejecting the application of the present petitioner and others. (10.) I dismiss the application. The order of the learned Trial Court is affirmed. f Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.