Calcutta High Court (Appellete Side)
Bimal Kumar Goenka vs Sri Sanjay Kumar on 27 January, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1 27.1.2010
. C.O. No.3975 of 2009
Bimal Kumar Goenka -vs- Sri Sanjay Kumar
Jaiswal & Ors.
Mr. S. Deb,
Mr. K. H. Sesan.
.....For the petitioner.
Mr. Jiban Ratan Chatterjee,
Mr. Kaushik Dey.
......For the O.P.
Heard the learned advocate for the parties. This is an application under Article 227 of the Constitution of India in respect of an order being Order No.19 dated 10th September, 2009 passed by the learned 5th Bench of the Court of Small Causes, Calcutta, in Ejectment Suit No.EJ 63/07-C. The petitioner in the instant application filed an application before the learned court below for being added as party to the pending suit instituted by the opposite party no.1 & 2 against the opposite party no.3. In the said ejectment suit, the opposite party no.1 & 2 herein, as plaintiffs, prayed for a decree against the defendant, being the opposite party no.3 herein, in terms of prayers (a) and
(b) which are set out hereinbelow:-
"Decree for recovery of khas and vacant possession of one flat being No.2, situated on the 1st Floor of Premises No.539, Rabindra Sarani, Police Station Shyampukur, Koltaka - 700 003 by evicting the defendant therefrom.
2Decree for mesne profit @ Rs.100/- per diem calculating from the date of termination of the tenancy till realization of the khas and vacant possession of the suit premises or such sum as may be assessed by this learned court on enquiry."
The petitioner herein preferred an application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908, for being added as party to the aforementioned ejectment suit inter alia on the ground that the plaintiffs and the defendant were trying to oust him illegally and that the plaintiffs did not implead the petitioner as a tenant in the ejectment suit with some malafide intention and to mislead the learned court in order to obtain an ex parte decree against the petitioner upon suppression of material fact behind his back. In the application filed by the petitioner before the learned court below under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908, he has referred to an earlier Title Suit, being Title Suit No.769 of 1991, wherein the plaintiffs were made parties and which was decreed ex parte in favour of the petitioner.
The petitioner also referred to another ejectment suit, being Ejectment Suit No.1292/2000 where the petitioner's prayer for being added as a party was initially refused by the learned trial court but was subsequently allowed in terms of an order passed by this court. It was also contended by the petitioner that he had duly contested the said Ejectment Suit No.1292 of 2000, which 3 was dismissed on contest by the learned 6th Small Causes Court. In such circumstances, it was prayed before the learned court below that the petitioner be added as a defendant to the Ejectment Suit, being Ejectment Suit No.EJ 63/07-C, instituted by the plaintiffs against the opposite party no.3 herein.
By the order impugned, the learned court below dismissed the application under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908, by observing inter alia, that the petitioner had failed to adduce prima facie document in support of his petition that he was in lawful possession of the suit premises. The learned court below further observed that the petitioner had no locus standi to contest the suit at that stage.
The learned counsel appearing on behalf of the petitioner relies on a judgement of the Supreme Court rendered in the case of M/s. Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala & ors. reported in AIR 1953 SC 73 and submits that where a landlord brings a suit for possession and rent against his tenant after giving a notice to quit and also impleads therein a sub- tenant, to whom the premises were illegally sub-let by the tenant, the suit would nevertheless be one between a landlord and tenant and the Small Causes Court would have jurisdiction to entertain the suit. The sub-tenant though not a necessary party to the suit is a proper party 4 and his joinder cannot alter the nature of the suit. Learned advocate submits that the ratio of this decision is squarely applicable in the facts and circumstances of the instant case. He also relies on a decision of a Single Bench of this court in the case of Aninda Das Gupta Vs. Debasish Baisya reported in 2009 (2) CLJ 338 and submits that one of the principles underlying Order 1 Rule 10(2) of the Code of Civil Procedure is avoidance of multiplicity of proceedings. A party seeking to be impleaded as a party to a suit has to demonstrate that it has a direct and substantial interest in the subject matter of the suit and such interest may be affected directly by the decree that may be passed in the suit. Learned advocate submits that his client, being in actual possession of the suit premises, is likely to get affected directly by a decree that may be passed in the ejectment suit and therefore, the learned court below ought to have allowed the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure.
On the other hand, the learned counsel appearing on behalf of the opposite party no.1 & 2, being the plaintiffs who instituted the ejectment suit against the opposite party no.3 herein, submits that the order impugned was passed by the learned court below upon due consideration of the statutory law applicable in a case of a suit for ejectment instituted under the provisions of West Bengal Premises Tenancy Act. In this regard, he has 5 referred to both the old Act of 1956 as well as the new Act of 1997.
Referring to Section 16 of the West Bengal Premises Tenancy Act, 1956, he submits that creation and termination of sub-tenancies are required to be statutorily notified and the manner of giving notices relating to sub- tenancies under the West Bengal Premises Tenancy Act, 1997 has been prescribed under Rule 12 of the West Bengal Premises Tenancy Rules, 1999. Relying on these provisions of law he submits that the learned court below, on failure of the petitioner to adduce prima facie document in support of his case that he was in lawful possession of the suit premises, either as tenant or as sub-tenant, went on to reject the petitioner's application for being added as a party. He has also relied on several judgements to support his contention. Relying on a Division Bench judgement of this court in the case of J.C. Chakraborty & Co. Vs. Santilal Rampuria & Ors. reported in 1998(2) CHN 530, he submits that under the general law, no sub-tenant is required to be impleaded in an ejectment suit by a landlord against his tenant. On the same principle of law he has relied on a latter decision of another Division Bench judgement of this court in the case of M/s. Stockman Boarding House Vs. Life Insurance Corporation of India & ors. reported in AIR 2000 Calcutta
219. Referring to paragraph 12 of the judgment, he submits that in the facts and circumstances of the instant 6 case, the petitioner is not even required to be impleaded as a party to the ejectment suit. He also relies on two Single Bench judgments of this court; one in the case of B.K. Dutta Vs. Smt. Nita Madan, reported in AIR 1984 Calcutta 228 and the other, in the case of Kanak Prova Dey & anr. -VS- Asha Devi Jaiswal & anr. reported in 2008(Vol.112) CWN 329. He submits that in the present case, there is no question of multiplicity of proceedings, since in the ejectment suit the tenant has been made a party defendant and it was not necessary for the petitioner to be impleaded as an added defendant, in view of the applicable statutory provisions. Finally, the learned counsel for the opposite party no.1 & 2 relies on a Division Bench judgment of this court in the case of Kanailal Das & ors. Vs. Hari Sankar Dutta reported in Volume 86 CWN 549 (paragraph 5) and submits that since the landlord of the premises did not consent in writing to the sub-letting by the defendant in favour of the petitioner herein, the creation of the sub-tenancy was in violation of the applicable premises tenancy law and in the facts of the instant case, the petitioner is not required to be impleaded as defendant to the ejectment suit instituted against the defendant, being the opposite party no.3 herein.
After considering the submissions made on behalf of the parties and upon perusing the instant application under order impugned, I am of the opinion that this court is not required to sit in appeal over the 7 respective merits of the case made out by the parties before the learned court below. The learned court below has considered that aspect of the matter and has simply opined that the petitioner had failed to adduce prima facie document in support of his petition that he was in lawful possession of the suit premises. Therefore, the learned court below found that the petitioner had no locus standi to contest the suit, at this stage, and hence, rejected the petition under Order 1 Rule 10(2) of the Code of Civil Procedure.
For the purpose of invoking this court's jurisdiction under Article 227 of the Constitution of India, the petitioner is required to show such gross error of law or such palpable infirmity of reasoning or conclusion of facts, which could be said to be so perverse or so unreasonable that no court could have ever come to such a conclusion.
In my opinion, the impugned order certainly does not fall into that category whereby the petitioner herein is not allowed to be added as a party defendant, at this stage, when the court is yet to pass a decree against the defendant, being the opposite party no.3 herein. The observation of the learned court below that the petitioner has no locus standi to contest the suit, at this stage, cannot be said to be unreasonable at all. That stage, perhaps, has not yet come.
8
In such circumstances, I do not find any reason to interfere with the order impugned and, as such, the instant application stands dismissed.
However, as observed hereinbefore, I have not gone into the respective merits of the case made out by the parties and any observation made herein shall not prejudice the rights and contention by either of the parties before the learned court below at any subsequent stage.
Urgent xerox certified copy of the order shall be given to the learned counsel for the parties, if applied for, as expeditiously as possible.
(Biswanath Somadder, J.)