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2011 DIGILAW 883 (CAL)

Ghanshyam Das Agarwal v. Sumita Devi Varma

2011-07-05

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. THESE two applications are directed against different orders passed by the learned Additional Controller, Sealdah in Ejectment Case No.99 of 2005. By the first application being C.O. No.2638 of 2010, the plaintiff has challenged the order nos.44 dated March 25, 2010 and the order no.47 dated May 7, 2010 thereby rejecting the application under Order 6 Rule 17 of the C.P.C. giving liberty to the plaintiff to file a petition under Order 1 Rule 10 of the C.P.C. The other application is also filed by the plaintiff and is also directed against the order no.52 dated June 22, 2010 passed by the learned Additional Controller, Sealdah in Ejectment Case No.99 of 2005 thereby rejecting the application under Order 1 Rule 10 of the C.P.C. Since, the two applications have arisen out of the same ejectment case and they are very must related to each other, they are disposed of by this common judgment. 2. THE petitioner instituted the said case against the opposite party for eviction on the ground of default and reasonable requirement before the learned Additional Controller, Sealdah (learned Civil Judge, Junior Division). THE opposite party is contesting the said ejectment case by filing a written statement denying the material allegations raised in the plaint. THE case was at the stage of further peremptory hearing. At that time, the petitioner filed an application for amendment of the plaint and for addition of party, contending inter alia, that the opposite party has inducted sub-tenants in the premises in case as described in the ejectment case and this is a good ground for ejectment of the opposite party. Moreover, the sub-tenants are also the necessary parties for the purpose of proper adjudication of the matter in dispute. In disposing of the application for amendment of the plaint, the learned Additional Controller has observed that the application is not maintainable on the ground that it was not the one under Order 1 Rule 10(2) of the C.P.C. and so, the contention of addition of parties should not be accepted. Accordingly, the application for amendment of the ejectment application was rejected. Thereafter, when the petitioner filed an application for addition of parties under Order 1 Rule 10(2) of the C.P.C., that application, too, was rejected by the order no.52 dated June 22, 2010. Being aggrieved by such orders, these two applications have been preferred. Accordingly, the application for amendment of the ejectment application was rejected. Thereafter, when the petitioner filed an application for addition of parties under Order 1 Rule 10(2) of the C.P.C., that application, too, was rejected by the order no.52 dated June 22, 2010. Being aggrieved by such orders, these two applications have been preferred. Now, the question is whether the impugned orders should be sustained. 3. UPON hearing the learned Counsel for the parties and on going through the materials on record I find that the learned Additional Controller rejected the application for amendment of the application for ejectment on the ground of technicalities stating that though the amendment of the ejectment application was sought for on the ground that the opposite party had sublet the premises in case, the application was not one under Order 1 Rule 10(2) of the C.P.C. and as such, the application for amendment of the application for ejectment could not be entertained. It may be noted herein that the learned Advocate for the opposite party before the Additional Controller expressed consent in allowing the application on consent on his part. In spite of that the learned Additional Controller rejected the application on technical ground with liberty to file another application under Order 1 Rule 10(2) of the C.P.C. 4. SUBSEQUENTLY, when the petitioner filed an application under Order 1 Rule 10(2) of the C.P.C. for addition of the sub-tenants as defendant nos.2, 3 and 4 contending that the sub-tenants are in exclusive possession of the premises in case. The defendant / opposite party raised objection that the sub-tenants could not be the necessary parties. It has been described that the so-called sub-tenants are unauthorized sub-tenants, meaning thereby they have been inducted in the premises in case without any notice. Under these circumstances, the learned Additional Controller has observed that the sub-tenants are bound by the decree that may be passed against the tenant and that they have no independent right to agitate or defend before the Additional Controller. 5. THERE is no averment that the sub-tenants were inducted with notice. Accordingly, the sub-tenants cannot be the necessary parties. The learned Additional Controller has rejected the application for addition of parties on these grounds and he did not want to enlarge the scope of adjudication in respect of the matter in dispute by the order of rejection of the application. THERE is no averment that the sub-tenants were inducted with notice. Accordingly, the sub-tenants cannot be the necessary parties. The learned Additional Controller has rejected the application for addition of parties on these grounds and he did not want to enlarge the scope of adjudication in respect of the matter in dispute by the order of rejection of the application. Since, the sub-tenants are not the necessary parties to the ejectment case, I am of the view that the learned Additional Controller has rightly rejected the application under Order 1 Rule 10(2) of the C.P.C. 6. THE learned Advocate for the opposite party has referred a number of decisions such as 1978(2) CLJ 274, 2000(1) CHN 490, (2004)8 SCC 706 , (2009)2 WBLR (SC) 871 and 2011(1) CHN 645 (DB) in support of his contention. But on perusal of those decisions, I find that none of them is applicable in the instant situation. However, as I am of the opinion that the learned Additional Controller has rightly rejected the application under Order 1 Rule 10(2) of the C.P.C. these decisions need not be discussed in details. As regards, amendment of the application for ejectment, the petitioner has contended that during the pendency of the ejectment proceeding, the original tenant inducted sub-tenants as stated in the application. The ejectment case has been filed under the provisions of the West Bengal Premises Tenancy Act, 1997. Therefore, according to Section 6(1)(a) of the said 1997 Act, induction of a sub-tenant without obtaining the consent of the landlord in writing is a ground for eviction. Since such fact has taken place, during the pendency of the ejectment proceeding as per contention of the petitioner, the petitioner should be given an opportunity to file an appropriate application for amendment of the application for ejectment raising the ground under Section 6(1)(a) of the 1997 Act only. If such an application is filed within a period of 30 days from the date of communication of this order to the learned Additional Controller, the learned Additional Controller shall hear out the application and dispose of the same in accordance with law. If no application is filed within the aforesaid period, the ground of subletting as raised in the application under Order 6 Rule 17 of the C.P.C. shall be treated as a closed chapter. 7. THE revisional applications are disposed of in the manner indicated above. If no application is filed within the aforesaid period, the ground of subletting as raised in the application under Order 6 Rule 17 of the C.P.C. shall be treated as a closed chapter. 7. THE revisional applications are disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs. 8. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.