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2015 DIGILAW 590 (CAL)

Gopesh Chandra Saha v. Brinda Rani Saha

2015-07-21

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT JYOTIRMAY BHATTACHARYA, J. This second miscellaneous appeal is directed against an order dated 18th September, 2014 passed by the learned Judge, Small Causes Court at Sealdah in Misc. Appeal No. 22 of 2009 arising out of an order being No. 56 dated 23rd December, 2008 passed by the learned Additional Civil Judge (Junior Division) at Sealdah in Misc. Case No. 16 of 2002 at the instance of the applicant/appellant. Let us now consider as to whether the appeal deserves any merit for admission under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. The respondent no. 2 herein viz. M/s. Bina Pani Galvanizing was a tenant under the respondent no. 1 herein viz. Smt. Brinda Rani Saha in respect of premises No. 150, Ultadanga Main Road, Police Station-Manicktala, Kolkata-700067. The said Brinda Rani Saha (landlady) filed an eviction suit against M/s. Bina Pani Galvanizing, the respondent no. 2 herein for evicting it from the suit premises. The said M/s. Bina Pani Galvanizing was a proprietorship firm of which Saraswati Sadhukhan was the owner. The said suit was decreed by the learned Trial Judge. Since the judgment-debtor did not deliver vacant and khas possession to the decree-holder in compliance of the eviction decree, the decree-holder put the said decree into execution for recovering khas possession of the suit premises by evicting the said judgment-debtor therefrom. In connection with the said execution proceeding, the appellant herein viz. Gopesh Chandra Saha filed an application under Order 21 Rules 99, 100 and 101 of the Civil Procedure Code claiming himself to be a direct tenant under the decree-holder. He alleges that he is a monthly tenant directly under the decree-holder. The appellant further alleges that he used to pay rent regularly to Saraswati Sadhukhan who was an agent of the decree-holder. The appellant thus complained that the eviction decree which was passed against the said M/s. Bina Pani Galvanizing, the respondent no. 2 herein is not binding upon him as he was not a party in the said suit nor any eviction decree was passed against him. The appellant further complains that since he is a tenant directly under Brinda Rani Saha, the respondent no. 1 herein, he cannot be evicted on the strength of the decree passed in the said eviction suit filed by Brinda Rani Saha against the said M/s. Bina Pani Galvanizing. The appellant further complains that since he is a tenant directly under Brinda Rani Saha, the respondent no. 1 herein, he cannot be evicted on the strength of the decree passed in the said eviction suit filed by Brinda Rani Saha against the said M/s. Bina Pani Galvanizing. The appellant further alleges that the decree for eviction which was obtained by Brinda Rani Saha is vitiated by fraud as the said Brinda Rani Saha obtained the collusive decree against the said M/s. Bina Pani Galvanizing which is not enforceable through execution against the appellant. The decree-holder/respondent no. 1 herein transferred the suit property to the respondent no. 3 viz. Nand Kumar Somani who as a transferee decree-holder contested the said proceeding under Order 21 Rules 99, 100 and 101 of the Civil Procedure Code which was registered as Misc. Case No. 16 of 2002. Though the judgment-debtor filed evidence on affidavit in connection with the said proceeding, but the judgment-debtor did not lead any evidence to prove the basic document of its tenancy i.e. rent receipt, though a rent receipt which was allegedly issued by Saraswati Sadhukhan was submitted by the judgment-debtor in the said proceeding. The said Misc. Case was ultimately dismissed on contest by an order passed by the learned Executing Court on 23rd December, 2008. The learned Executing Court held that the appellant herein is an unauthorised sub-tenant in the suit premises and as such he is not entitled to any immunity from eviction in the said execution proceeding. The legality and/or propriety of the said order of the learned Executing Court was challenged in appeal being Misc. Appeal No. 22 of 2009 which was also dismissed on contest on 18th September, 2014 by affirming the findings of the learned Executing Court. The legality and/or propriety of the said order of the Appeal Court is under challenge in this second miscellaneous appeal before us. Mr. Chatterjee, learned senior counsel appearing for the appellant has placed the judgments of both the courts below to impress upon us that both the courts below did not consider the pleadings and/or evidence of the appellant herein. Mr. Mr. Chatterjee, learned senior counsel appearing for the appellant has placed the judgments of both the courts below to impress upon us that both the courts below did not consider the pleadings and/or evidence of the appellant herein. Mr. Chatterjee points out that instead of deciding the issue which was raised by the appellant in the said proceeding, both the courts below considered the issue which was raised by another register of the decree and ultimately held that the appellant herein is a sub-tenant in respect of the suit premises and thus he is not entitled to get any protection against eviction as the decree against the tenant is binding upon the sub-tenant. Mr. Chatterjee thus submits that the judgments passed by the courts below are vitiated by total non-application of mind as none of the courts below while disposing of the appellant’s application under Order 21 Rules 99, 100 and 101 of the Civil Procedure Code considered the claim of the appellant raised therein. We have perused the judgments of the courts below. After perusing the judgments of the courts below, we are of the view that there is substance in such contention of Mr. Chatterjee as we find that while deciding the Misc. Case filed by the appellant, both the courts below, in fact, considered the pleadings of the other register of the decree who also filed an identical miscellaneous proceeding for adjudication of his right, title and interest in the suit property under Order 21 Rules 99, 100 and 101 of the Civil Procedure Code. These lead us to consider the pleadings of the respective parties in connection with the miscellaneous proceeding initiated at the instance of the appellant herein and the evidence on affidavit filed by the appellant in connection therewith. On reading the application submitted by the appellant herein, giving rise to the said miscellaneous proceeding, we find that the appellant admitted therein that M/s. Bina Pani Galvanizing was a proprietorship concern of which Saraswati Sadhukhan was the proprietor. He further alleges therein that the said Saraswati Sadhukhan used to collect rent from the appellant herein as an agent of the landlady viz. Brinda Rani Saha by granting rent receipt in respect of the suit property. Though the appellant claims that the said Saraswati Sadhukhan collected rent from the appellant as an agent of the landlady viz. He further alleges therein that the said Saraswati Sadhukhan used to collect rent from the appellant herein as an agent of the landlady viz. Brinda Rani Saha by granting rent receipt in respect of the suit property. Though the appellant claims that the said Saraswati Sadhukhan collected rent from the appellant as an agent of the landlady viz. Brinda Rani Saha, but nothing has been produced by the appellant to show that Saraswati Sadhukhan was ever appointed as an agent by Brinda Rani Saha. In the absence of such proof regarding appointment of agent by Brinda Rani Saha, we are unable to believe that Saraswati Sadhukhan was appointed as an agent by Brinda Rani Saha for the purpose of collection of rent from the appellant. We have already indicated above that Saraswati Sadhukhan was the sole proprietor of M/s. Bina Pani Galvanizing which was a tenant of the suit premises under Brinda Rani Saha. Brinda Rani Saha filed an eviction suit against the said M/s. Bina Pani Galvanizing for evicting it from the suit premises. Considering the bitter relationship, had between Brinda Rani Saha and Saraswati Sadhukhan, it is not at all believable that the landlady, who filed an eviction suit against the proprietorship concern of Saraswati Sadhukhan, will appoint Saraswati Sadhukhan for collecting rent of the suit premises from her tenant. The rent receipt which was produced by the appellant was issued by Saraswati Sadhukhan. The rent receipt also does not disclose that such rent was collected by Saraswati Sadhukhan on behalf of principal landlady viz. Brinda Rani Saha. In these set of facts, we have no hesitation to hold that the appellant herein was a sub-tenant under Saraswati Sadhukhan and as such, the decree which was passed against the proprietorship concern of Saraswati Sadhukhan viz. M/s. Bina Pani Galvanizing is binding upon the sub-tenant viz. the appellant herein. Thus, the appellant herein has no independent right and/or interest in the suit property. We thus agree with the findings of the courts below that the appellant is the sub-tenant in respect of the suit property and the decree is very much executable against him also as he failed to establish an independent right in respect of the decretal property. We thus find no merit in this appeal. Accordingly, we decline to admit this appeal. The appeal is dismissed with costs of Rs. We thus find no merit in this appeal. Accordingly, we decline to admit this appeal. The appeal is dismissed with costs of Rs. 50,000/- (Rupees fifty thousand only) to be paid by the appellant to the respondent no. 3 herein viz. Nand Kumar Somani within a month. In default of such payment, the cost amount will also be realised by the said transferee decree-holder through process of execution. Re : CAN 6438 of 2015 (Stay) Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN No. 6438 of 2015 is thus deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.