Calcutta High Court
Sri Sudhir Ranjan Paul vs Sri Chhatter Singh Baid & Anr. on 27 July, 1998
Equivalent citations: (1999)3CALLT261(HC), AIR 1999 CALCUTTA 86, (1999) 1 CAL WN 419, (1999) 2 RENTLR 103, (1999) 3 CALLT 261, (1999) 2 ICC 736
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. These two appeals arise out of a judgment and order dated 3.3.98 passed by Sri A.K. Dasgupta, Chief Judge. City Civil Court, Calcutta in Misc. Case No. 559 of 1992 whereby and whereunder the said learned Court dismissed applications filed by the appellant under Order 21 Rule 97 of the Code of Civil Procedure.
2. The first respondent filed a suit for ejectment of its tenant M/s Krishna Textiles from the said premises which was an office room being No.II/4, on the first floor of premises No.3 Church Lane. Calcutta on the ground that the defendant had been a defaulter and also assigned possession of the said tenancy in favour of S. Pal and Bhranihaputra Fertilisers Distributors without the consent of the plaintiff. The schedule referred to in the plaint reads thus:-
"All that being one office room being No.II/4 on the First Floor of the premises No. 2, Church Lane. Calcutta, butted and bounded as follows:-
On the North : By office Room No. II/3 On the East : By over looking the Church Lane On the West : By common corridor On the South : By Office Room No. II/5B."
3. Although the defendant of the said suit filed a written statement, it did not appear at the hearing and by a judgment dated 28.6.91 the said suit was decreed with costs. The said decree was put in execution which was numbered as Ejectment Execution Case No. 61/92. While delivery of possession was sought to be granted in the said proceeding, an obstruction was made by the appellant whereafter, the first respondent filed an application under Order 21 Rule 97 of the Code of Civil Procedure which was rejected as Misc. Case No. 559 of 1992.
4. The appellant filed an objection in the said proceeding alleging inter alia that the description of the premises in their occupation do not tally with the premises as described in the plaint.
5. The appellant N.K. Mukherjee in his affidavit-in-opposition inter alia stated that he was allotted one office room by one M/s. Vijoy iron Pvt. Ltd. He has his own telephone as also furniture, law books and office equipments. However, in the said objection it was stated:-
" That for sometimes M/s. Krishna Textiles claiming through M/s. Choomery Jute Press which was a lessee in respect of the premises No. 2. Church Lane, Calcutta-1 as alleged, realised rent from me but subsequently I challenged their authority to realise rent from me and stopped paying rent to said M/s. Krishna Textiles for which I was threatened with ouster from the said room. I have reason to believe that the said Krishna Textiles or the proprietor/partner thereof has caused to implicate me in the aforesaid Misc. Case for ousting me from the said room out of grudge and malafide. There is no truth in the said application as alleged against me. Besides, the rent Krishna Textiles took other sums from me. M/s Krishna Textile had no right and interest in the said room which I came to know subsequently and stopped paying rent as aforesaid.
I crave leave of the learned court to produce the rent receipts issued by Krishna Textile at the time of hearing.
That on perusal of the rent receipts to me by or on behalf of M/s Krishna Textiles it will appear that the room occupied by me bears no number. In fact there is no number against any of the rooms occupied by various occupiers including myself. The number of the rooms as appears from the schedule of the decree annexed to the said application is imaginary and non-existent. I further say and assert that the boundaries of my room do not tally with the boundaries of the room in the decree. The boundaries of my room are as follows:-
NORTH : Boundary wall of my room and thereafter New Building;
SOUTH : The room in occupation of Subir Paul;
EAST : Boundary wall of my room facing Church
Lane.
WEST : Passage exclusive to my room."
6. So far as the appellant Subir Paul is concerned admittedly he was a Sub-tenant of M/s Krishna Textiles. He filed an application for addition of party in the suit but the same was rejected. According to the said appellant, however, leave was granted to him to raise his contentions in the execution proceedings pursuant whereto he had filed the aforementioned objection.
7. The learned counsel appearing on behalf of the appellants inter alia submitted that as all the disputes between a decree holder and third parties are required to be decided in execution proceedings, it was incumbent on the part of the learned Trial Judge to allow the appellants to adduce evidence on their behalf and arrive at a finding to the effect that the premises in their occupation tally with the suit premises. It was also submitted that the learned trial Judge failed to take into consideration the report of the Special Officer filed before this court wherein a finding was arrived at to the following effect :
"Now I am giving the description of the other room i.e. the room in which Mr. N.K. Mukherjee was found as follows :
On the Eastern side wall which facing the Church Lane, there exists one big window.
On the Western side wall facing the common passage there exists one big wooden door which is being used for the purpose of ingress and egress.
On the Southern side wall there exists two big wooden doors which connects the big room i.e. the room in which Mr. Subir Paul was found working but the said doors are blocked by one big book almirah and one big steel rack.
In this connection I further report that in the North of the decretal room it has been mentioned there is office room No. 11/3 but I do not find any such room on the North. On the other hand I find on the North a New Building is being constructed.
I further find that in the description of the decretal room it has been mentioned that on the South there is an office room No. 11/5 but I do not find any such room. On the other hand I find a room but nothing could be placed before us by either of the parties that the said room is 11/35.
From the aforesaid it is clear that the boundaries of the decretal room is not tallying with the description of the room claimed by the opposite party No. 1.
I find a report that room claimed by the petitioners does not fall within the decretal room."
8. Our attention was drawn to an order dated 20.11.95 passed in C.O. No. 1992 of 1994 whereby and whereunder Basudev Panigrahi, J., directed that the report of the Special Officer be sent down to the trial Court for consideration and it would be open to the appellants to prove the report and the opposite party was at liberty to cross-examine the said Special Officer.
9. As the appellant Sudhir Paul was admittedly a sub-tenant in respect of the part of the premises and in view of the fact that his application for addition of party in terms of Order 1 Rule 10 of the Code of Civil Procedure was dismissed, he had no locus standi to file the said objection as he could not resist delivery of the possession of the decretal premises in favour of the decree holder inasmuch as no notice was served upon the plaintiff-decree holder as is mandatorily required under section 16(2) of the West Bengal Premises Tenancy Act. 1956.
10. Our attention was further drawn to the fact that a confusion is sought to be created by partitioning the suit premises inasmuch as Premises No. 11/3 was a different room.
11. It is true that the learned trial Judge had disposed of the matter in slipshod manner. It was obligatory on his part keeping in view the provisions of Order 21 Rule 97 and Order 21 Rule 100 to pass a detailed judgment.
12. However, we are of the view that although the Judgment impugned in this appeal are not at all satisfactory but this court with a view to shorten litigation examine the materials on records itself and dispose of the proceedings in exercise of its power under Order 41 Rule 24 of the Code of Civil Procedure.
13. It is now well-settled in view of a recent decision of the Supreme Court of India in Silver Line Forum (P) Ltd. v. Rajib Trust reported in 1998(2) Indian Civil Case 116 that in absence of a notice as contemplated under sub-sections(2) of section 16 of the said Act, the sub-tenant has absolutely no right to be impleded as a party in the suit and a decree passed upon the tenant is binding upon the sub-tenant.
14. Mr. Das appearing on behalf of the appellant Sri Sudhir Paul however has sought to place before us a purported certificate of the year 1977 issued by M/s Krishna Textiles in favour Mr. Sudhir Paul which is in the following terms :-
"We confirm that we duly informed the Landlords of your Sub-tenancy under us immediately after you were inducted as our Sub-Tenent which please note."
15. Such a certificate is not admissible in evidence unless the maker thereof proved the same before the court below. Four witnesses were examined on behalf of the first respondent Amit Kumar Pan an Advocate was examined as PW-1. He was appointed as Special officer. In his cross examination he has clearly stated that Premises No. 2 Church Lane is a big premises. A new building has been constructed on the adjacent of the North of the said premises. He had not asked any one to show him the plan of the house by which the existing condition of the building was to be converted to the newly proposed building. The newly constructed portion was absolutely adjacent to the suit room as well. He could not remember as to whether any sanctioned plan was shown to him. He also could not remember as to whether such an offer was made but he denied a suggestion that he refused to accept the same as the other party objected to it. He even could not ascertain the room number. He even did not examine any witness in occupation to the adjacent rooms allegedly on the ground that the same was not mentioned in the order of the High Court. For the same reason he did not also inspect the condition of other rooms nor he recorded the statement of any other occupant. He had made an enquiry from one Mr. Sudhir Paul as he was doing his work in the disputed room itself.
16. A bare perusal of the report marked as exhibit 2 read with the deposition of its maker would clearly show that he was appointed as a Special Officer only with a view to ascertain as to whether the claim of the opposite party No. 2 to the affect that they are in occupation in a different premises being premises room No. 11/3 was correct or not but he failed to do so. As a Special Officer appointed by the court it was his solemn obligation to place before the court a correct picture. No reliance, thus, can be placed on the said report. PW-2 P.K. Ganguly, is a bailiff of the Court. He proved the report of his predecessor Sri Ranjan Tripathi who in his report (exhibit 3) clearly stated that the obstruction in giving delivery of possession was made by the judgment debtors and his men. The bailiff. Ranjan Tripathi examined himself as witness No. 3. He stated that he had been obstructed from giving delivery of possession. In his cross-examination made on behalf of the opposite party No. 2 (appellant in FMA No. 1254) he stated that besides identification of the suit premises by the decree holder, the rooms in question were identified with reference to the decree. Except certain suggestions given in cross-examination, no other question was put to him. As he was not subjected to any cross-examination there is material to disbelieve his evidence. Except one question no question was put to him even on behalf of the opposite party No. 3 (Appellant FMA No. 187/98). Only certain suggestions were put to him. The decree holder examined himself as witness No. 4. In his evidence he clearly stated :
"The room bearing No. 11/3 as the northern boundary of the suit property is no longer in existence and a new building has been constructed in that place."
17. He was cross-examined on behalf of the opposite party No. 3 but no question was put to him so as to elicit the correctness or the otherwise or the aforementioned statement. Only two suggestions were given to him. The opposite party No. 2 declined to cross-examine him.
18. Both the appellants did not examine any witness nor they examined themselves. The testimony of the witnesses examined on behalf of the decree holder, thus, had remained unchallenged. The appellant S.R. Paul claimed himself to be a sub-tenant with notice. He has failed to prove that a notice had been issued to the decree holder after he was inducted. In any event as his application under Order 1 Rule 10(2) of the Code of Civil Procedure was dismissed, in the execution case, could not be permitted to reopen the entire matter. The said objection was also barred under the principles of res judicata or the principles analogous thereto. In the said order dated 5.5.1997 it was clearly held :
"In terms of section 16 of the aforesaid Act the creation and termination of sub-tenancies are required to be notified thereunder. But there is not the merest and faintest whisper by the aforesaid petitioner M/s Subir Paul that the creation of their alleged sub-tenancy in August, 1976 had duly been notified in terms ofthe aforesaid provision. In terms of section 13(2) of the aforesaid Act. It is only the sub-tenants who have given notice of their sub-tenancies to the Landlord under the provisions of section 16 who are entitled to be made parties to any suit or proceeding for recovery of possession of the premises by the Landlord. The petitioner M/s. Subir Paul not having given notice of its alleged sub-tenancy to the Landlord under the aforesaid provision of law is not clearly entitled to be added as a defendant in the instant suit as such. The learned Advocate for the aforesaid petitioner had sadly sought to submit that it had no knowledge as to who the Landlord was, in the circumstances as stated. But there is no whisper by the petitioner either to indicate that any notice about the creation of the alleged sub-tenancy in August. 1976 had been given by it to the Landlord known to it. That being so and in view of the decisions reported in 81 CWN 400 and 86 CWN 549 (at page 552), the application of the aforesaid petitioner for being added as a defendant No. 2 in the instant suit could hardly to entertained."
19. In any view of the matter the position remains the same even now.
20. The liberty given to him by the learned Judge in the said order was absolutely misplaced and thereby no new right has been created in his favour. His purported objection cannot therefore be held to be maintainable. So far as the cases of the appellant in FMAT No. 1234/98 (N.K. Mukherjee) is concerned, it is really a matter of surprise that he although allegedly allowed to occupy a room by M/s. Vijay Iron Co. Ltd. the latter has not come forward. He is merely as an agent of the aforementioned company. He has not claimed nor could he claim in the facts and circumstances of this case any independent interest in the suit property and, thus, he could not have resisted grant of delivery of possession as he on his own showing is only in permissive possession.
21. Furthermore, as noticed hereinbefore, the said appellant in paragraph 2 of his affidavit-in-opposition has clearly admitted that he used to pay rent to the Judgment-debtor.
22. The said admission on his part is a clear pointer to show that he was also a sub-tenant of the judgment-debtor. Futhermore, when he had resisted possession by claiming independent right, it was obligtatory in his part to examine witnesses on his behalf and at least to examine himself. Non-examination of a party to the list arises an adverse presumption. See Sardar Gurubakhsh Singh v. Gurdial Singh and Martand Pandharinath v. Radhabai reported in AIR 1931 Bombay 97. In any event he has not even cross-examined the decree holder and, thus, must be held to have admitted his case. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. , it was held that on the basis of the report of Nazir regarding obstruction to grant delivery of possession the decree-holder was entitled to file an application under Order 21 Rule 97 of the Code of Civil Procedure. The apex Court held :-
"It is, therefore, clear that in an application under Order XXI. Rule 97 moved by a decree-holder who complains about the resistance or obstruction offered by any person to the decree-holder in his attempt at obtaining possession of property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a 11s arises between the decree-holder applicant under Order XXI. Rule 97 on the one hand and such obstructionist or resisting party on the other, to whom summons has been issued by the Court as per form No. 40. When such a lis arises, it is to be adjudicated upon as enjoined by Order XXI, Rule 97 sub-rule (2). The procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order XXI. This directly takes us to the consideration of Order XXI. Rule 101 which reads as under....."
23. The apex court pointed out :-
"It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal proerty even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievence of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder."
24. A Division Bench of this court in Hiralal Sha v. Debprosad Dey & Ors. 1998(1) CLJ 348, held :-
"In terms of 1976 Amending Act, all questions including the question as to the right, title or interest in the property arising between the parties to the proceeding under Rule 97 or Rule 99 of Order 21 of CPC must be determined by the execution court and not by a separate suit.
The scope of a proceeding under Order 21 Rule 97 of the Code of Civil Procedure has. therefore, been expanded to the extent that all questions arising between the decree holder and third party in collusion with judgment debtor or otherwise including the question as to the title of such parties in the property has to be adjudicated upon which could be raised earlier only in terms of Rule 103 of Order 21 of the Code of Civil Procedure as it then existed. The procedure prescrided in a complete Code in itself. See : .
In that view of the matter once an order is passed under Order 21 Rule 97 of the Code of Civil Procedure, the same would be final and binding on the obstructor and there cannot be any reason as to why despite such an order in terms whereof the decree holder is to be put in possession, he has to file a separate suit therefor. Further in terms of the said rule the Court is entitled to pass any other order as to it may appear fit and proper."
For the reasons aforementioned there is no merit in this appeals which are accordingly dismissed but there shall be no order as to costs.
P.K. Smanta, J.
25. I agree.
26. Appeal dismissed