Calcutta High Court (Appellete Side)
Raj Kumar Agarwal And Ors vs Janasevak Trust And Ors on 28 March, 2012
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present : The Hon'ble Justice Pinaki Chandra Ghose
and
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
CAN 1205 of 2012
+
CAN 323 of 2012 (Stay)
F.M.A. 300 of 2012
Raj Kumar Agarwal and Ors.
vs.
Janasevak Trust and Ors.
For the appellant : Mr. Sabyasachi Bhattacharya
Mr. Saurav Banerjee
Mr. Arnab Dutt
Mr. Achintya Kr. Dutt
For the respondents : Mr. M. K. Das
Mr. Ashim Ghoshal Mr. Goutam Dey Mr. C. Ganguly Heard on : 12.03.12 Judgement on : 28.03.12 Dr. Mrinal Kanti Chaudhuri, J. :-
This appeal has been preferred against the order dated 19th December, 2011 passed by learned 4th Civil Judge (Sr. Division), Alipore in Misc. Case No. 546 of 2009 arising out of Title Execution Case No.25 of 2009.
The fact of the case, in short, is that respondent Nos.2 and 3 i.e. M/s. D.K. Majumdar & Co. and Dilip Kumar Majumdar were inducted by respondent No.1 Janasevak Trust as tenant and an agreement between them was executed 2 whereby the respondent Nos.2 and 3 were entitled to assign sublet or underlet any portion of the tenanted premises without any consent of the landlord. Subsequently, petitioner/appellant Raj Kumar Agarwal and others were inducted as sub-tenant by the respondent Nos.2 and 3. The respondent No.1 Janasevak Trust filed a suit bearing Tittle Suit No.110 of 2006 against respondent Nos.2 and 3 viz. M/s. D.K. Majumdar & Co. and Dilip Kumar Majumdar praying for eviction, accounting and mesne profit. The suit was decreed on contest on 18th February, 2009. The respondent No.1 Janasevak Trust filed an Execution Case bearing No.25 of 2009. In the said Execution proceeding the present appellant Raj Kumar Agarwal and others filed a petition under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure. According to the present appellants, they were inducted by the respondent Nos.2 and 3 at a monthly rental of Rs.8,750/- according to English calendar month. On 18th May, 2009, the petitioner/appellant came to know that a Court bailiff with police personnels came to the premises to execute the writ of possession as per decree for eviction passed on 18th February, 2009 in the suit premises bearing No.59/B, Chowringhee Road, Bhowanipur, Kolkata. It was the case of the appellants that since they were not made as party in the Ejectment Suit of 110 of 2006, the decree is a nullity and cannot be executed against them. The Trial Court dismissed the Misc. Case bearing No.546 of 2009 filed under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure on contest.
Being aggrieved by and dissatisfied with the order, the appellants Raj Kumar Agarwal and others have preferred this appeal before this Court.
We have carefully perused the materials on record and heard the submissions of learned counsels of both sides. It is evident from the record that there was an agreement between the respondent No.1 Janasevak Trust and respondent Nos.2 and 3 M/s. D.K. Majumdar & Co. and Dilip Kumar Majumdar whereby respondent Nos.2 and 3 were entitled to sublet any portion of the tenanted premises without any oral or written consent of the landlord. It is also 3 evident from the materials on record that since the rental amount of respondent Nos.2 and 3 was Rs.65,000/- that is exceeding Rs.10,000/- per month, the suit shall be governed under the Transfer of Property Act and not by West Bengal Premises Tenancy Act. The respondent No.1 got a decree of eviction against respondent Nos.2 and 3 and thereafter the respondent No.1 filed an Execution case for getting vacant possession of the premises in question.
It is submitted by learned counsel for the appellant Raj Kumar Agarwal and others that since the appellants were not made a party in Ejectment Suit bearing No.110 of 2006, they are not bound by the decree and, therefore, decree cannot be executed against them. By filing a separate petition under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure, they have prayed further for an order for determination of their status and other reliefs. Learned Court by disposing of the Misc. Case under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure held that the appellant is a subtenant but they are not entitled to get any other relief as prayed for. It is further submitted by the learned counsel for the appellant that appellant should be made party in the Ejectment Suit and ejectment decree passed in absence of the appellants is a nullity and cannot be executed. On the other hand, learned counsel for the respondent No.1 Janasevak Trust has submitted that a decree for ejectment against the tenant binds the subtenant also.
Some decisions of law have also been cited. It has been held in a decision reported in AIR 1923 Calcutta 691 (Ramkissendas and Anr. vs. Binjraj Chowdhury and Anr.) that in a suit by landlord against tenant for ejectment, the subtenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding on them. It has been categorically observed in the said decision that a suit by subtenant claiming that the decree is not binding on them as they were not made parties to it, is wholly unjustifiable. A landlord cannot give to a tenant or to a subtenant 4 something which he himself does not possess. If the rights of the tenant are gone those who claim under and through him lose their right.
Similarly, in another decision reported in AIR 1953 SC 514 (Sri Jagadguru Gurushiddaswami vs. The Dakshina Maharashtra Digambar Jain Sabha), it has been held that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determined the sublease also (AIR 1945 Cal 283 and AIR 1932 Cal 241 were relied upon). The aforesaid decisions of Hon'ble Apex Court clearly denote that a sub-lessee or subtenant would be bound by the decree of eviction obtained by the landlord against the lessee/tenant.
It is submitted by the learned counsel for the appellant that the right of the appellant under the West Bengal Premises Tenancy Act must be protected and they should be made party. It is further submitted that all the aforesaid decisions relate to Transfer of Property Act and not under Premises Tenancy Act. But it must be borne in mind that suit is governed by the Transfer of Property Act in view of the rate of tenancy between the landlord/respondent No.1 and tenant/respondent Nos.2 and 3. Moreover, the ratio of the aforesaid decisions cannot be overlooked and must be taken into consideration. Therefore, submission of the learned counsel for the appellant has no merit.
In view of decision reported in AIR 2000 SC 3567(2) (Prasantha Banerji vs. Pushpa Ashoke Chandani and Ors.) a suit filed after the execution proceeding is not maintainable. In the said case the only point raised in the appeal was whether the suit filed by the appellant who is not a party to a decree is maintainable when the execution proceeding in respect of the said property has been initiated under Order 21 Rule 97 of the Code of Civil Procedure or his remedy is going in the said execution proceeding. It has been held in the said decision that the appellant is entitled to raise all such lawful subtenancy or any 5 of his right in the execution proceeding under Order 21 Rule 97 of the Code. In the present case also the appellant being a subtenant raised the points by filing Misc. Case under Order 21 Rule 99, 100 and 101 of the Code of Civil Procedure and learned Court below disposed of the same in a just and well-reasoned manner. Therefore, application filed under Order 41 Rule 27 by the present appellant Raj Kumar Agarwal and others for adducing additional evidence is devoid of any merit in view of the fact that they are not necessary party to the Ejectment Suit and they are bound by the decree of ejectment.
Considering the facts and circumstances and the decisions of law cited above we are of the considered view that the order passed by learned Court below call for no interference and is, therefore, affirmed.
The appeal fails and stands dismissed. No order as to costs.
Photostat certified copy of the judgement and order, if applied for, be made over to the parties on usual terms.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Pinaki Chandra Ghose, J.)