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2011 DIGILAW 950 (CAL)

Kwality v. Kalpana Sadhukhan

2011-07-18

PRASENJIT MANDAL

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JUDGMENT Prasenjit Mandal, J. 1. CHALLENGE is to the Order No.12 dated February 28, 2008 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Ejectment Case No.68 of 2006 thereby rejecting an application under Order 1 Rule 10 of the C.P.C. 2. THE applicant filed an application under Order 1 Rule 10 of the C.P.C. for adding it as a defendant in the Ejectment Case No.68 of 2006 lodged by the plaintiffs / opposite parties herein against the defendants / opposite parties. That application was rejected by the impugned order by the learned Trial Judge. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order is sustainable. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the ejectment case is between the landlords and the tenants. The contention of the applicant is that he is a real tenant in the premises in suit as described in the plaint and that the defendants are not the tenants at all. In support of its contention, the applicant has contended that the plaintiffs instituted an ejectment suit being R.C. No.112 of 2005 before the learned Civil Judge (Junior Division), 6th Court, Alipore in respect of the selfsame premises against one Smt. Doly Khanna. In that suit, the applicant filed another application under Order 1 Rule 10 of the C.P.C. for adding the applicant itself as a party and that application was allowed holding that the applicant was a necessary party to the suit. 3. THE applicant has not filed any rent receipt or any other convincing document as a proof that it was recognised as a tenant by the landlords. Therefore, the landlords do not recognise the applicant as a tenant under them and so, in order to be added as a party the applicant is required to show that it is a tenant or at least it is a proper party to the suit. 4. MR. Roy appearing on behalf of the applicant has referred to the decision of Kamta Prasad and ors. v. Smt. Vidyawati and ors. reported in AIR 1994 Madhya Pradesh 181, the decision of Hiran Bala Debi v. Prodyut Kumar Mondal reported in 1991(1) CLT 32, and the decision of Devi Dayal Dixit v. M/s. Rashtriya Electrical and Engineering Co., reported in AIR 1983 Delhi 432. v. Smt. Vidyawati and ors. reported in AIR 1994 Madhya Pradesh 181, the decision of Hiran Bala Debi v. Prodyut Kumar Mondal reported in 1991(1) CLT 32, and the decision of Devi Dayal Dixit v. M/s. Rashtriya Electrical and Engineering Co., reported in AIR 1983 Delhi 432. So far as the decision of Madhya Pradesh High Court is concerned, it has been observed that the Court is to implead any person whose presence is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. 5. THE decision of Hiran Bala Debi (supra) lays down the ratio as mentioned in the paragraph 11 which is quoted below:- Out of several tests the important tests are: 1) whether the result of the suit will affect a third party applicant, (2) whether the court will be required to answer any issue other than those arising or would arise from the pleadings of the parties to the suit and (3) whether the presence of party will facilitate effective and complete adjudication of all questions involved in the suit. 6. SO far as the decision of the Delhi High Court is concerned, it lays down that the party in possession for quite sometime before institution of the suit claiming to be the original tenant, has the right to be impleaded as party tenant. By referring to these decisions, Mr. Roy has submitted that the applicant should be added as defendant in the said ejectment case. On the other hand, Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the opposite party has referred to the decision of Jagat Enterprises v. Anup Kumar Daw and ors. reported 1977(1) CLJ 186 and the decision of Biswanath Chattoraj and ors. v. State Bank of India and ors. reported in 2011(1) CLJ 1 delivered by this Bench and thus, he submits that in a suit for ejectment between a landlord and a tenant, the suit will be confined between the landlord and tenant and the scope of the suit would not be enlarged to a great extent. 7. HAVING considered the submissions of the learned advocates of both the sides and on going through the materials on record in the instant case, I find that the applicant has claimed that he has been possessing the premises in suit for a long time. 7. HAVING considered the submissions of the learned advocates of both the sides and on going through the materials on record in the instant case, I find that the applicant has claimed that he has been possessing the premises in suit for a long time. But it has described itself as a partnership firm. But, the plaintiffs have instituted a suit for ejectment against a company. The applicant never claimed that he is a tenant. But his simple contention is that it is almost dealing with the property as a tenant as stated above. The applicant has failed to show that the landlords ever recognised him either as a tenant or as a sub-tenant. The applicant has not also claimed itself that it is possessing the premises in suit as a tenant under the landlords. So, the length of possession that the applicant may possess the suit property will not be a matter of consideration to decide whether it is a tenant. The applicant having failed to show any rent receipt granted by the landlords in favour of the applicant, I am of the view that its claim for being added as a party should not be entertained. As observed by this Bench in the earlier decision of Biswanath Chattoraj and ors. (supra) the scope of the suit would not be enlarged to a great extent by adding a party which is not at all necessary for the purpose of settling the dispute between the landlords and the tenant. At best the status of the applicant with regard to the premises in suit could be a sub-lessee without notice. 8. UNDER the circumstances, the sub-lessee would be bound by the orders that may be passed against the first lessee. Thus, I hold that the applicant has no direct interest in the subject-matter litigation between the landlords and a tenant, as distinguished from a commercial interest. Therefore, I am of the view that the decisions referred to by Mr. Roy will not be applicable in instant case. I am, therefore, of the view that the learned Trial Judge has rightly rejected the application for addition of parties. There is no scope of interference with the impugned order. The revisional application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Roy will not be applicable in instant case. I am, therefore, of the view that the learned Trial Judge has rightly rejected the application for addition of parties. There is no scope of interference with the impugned order. The revisional application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.