Calcutta High Court (Appellete Side)
Dr. Piyush Dutta & Anr vs Arindam Mukherjee & Anr on 15 June, 2011
Author: Harish Tandon
Bench: Harish Tandon
1 Sl/ 15.6.11 C.O. 1772 of 2010 2 ac Dr. Piyush Dutta & Anr
-vs-
Arindam Mukherjee & Anr Mr. Raja Basu Mullick Mr. Ranjan Kumar Kali ... For Petitioners Mr. Amlan Jyoti Sengupta ... For Opposite Party No. 1 Mr. Gurudas Mitra Ms. Rituparna De ... For Opposite Party No. 2 This revisional application is directed against an order dated 1st March 2010 passed by Civil Judge (Senior Division), 5th Court, Alipore in Ejectment Suit No. 2 of 2009 whereby and whereunder an application for addition of party, filed by the opposite party no. 2, is allowed.
The petitioners filed Ejectment Suit No. 2 of 2009 against the opposite party no. 1 on various grounds, including the ground of default. According to the petitioner, the opposite party no. 1 issued letter of surrender on 15th February 2008 intending to vacate the suit premises on or before 27th February 2009. It appears that an application for compromise was filed but the Court found that such compromise petition is not tenable and as such rejected the same vide order No. 6 dated 4th April 2009.
Thereafter the opposite party no. 2, being the wife of the opposite party no. 1, filed an application 2 seeking her addition in the said ejectment suit. It is stated that she is residing in the suit flat and the husband, opposite party no. 1, has deserted her and voluntarily left the suit flat and is residing elsewhere. It is C.O. 1772 of 2010 her specific case that the petitioners and the opposite party no. 2 have colluded with each other and contemplating to evict her from the suit flat.
Although the tenancy stands in the name of the opposite party no. 1 but the petitioner is collecting maintenance charges from the opposite party no. 2, which would be evident from the receipt issued in this regard, being Annexure 'F' to the revisional application.
The trial Court has found that conduct of the opposite party no. 1 to be ingenuine as an attempt to evict the opposite party no. 2 is contemplated in collusion with the petitioners. The trial Court further observed that a compromise petition was filed by the opposite party no. 1 and the petitioners, for passing the decree of eviction. Thus the conduct of the petitioners and the opposite party no. 1 has been found by the trial Court to be ingenuine having sinister motive to evict the opposite party no. 2 from the suit flat.
The petitioners contended before this Court that there is no privity of contract between the petitioners and the opposite party no. 2 and as such she cannot be added as a party/defendant in a suit for eviction filed against the tenant , being the opposite party no. 1. It is further contended that the opposite party no. 1 is contesting the suit and as such it cannot be said that 3 there is collusion between the petitioners and the opposite party no. 1. It is further contended that the suit is filed under the provisions of the West Bengal Premises Tenancy Act, 1997 and addition of a stranger to a contract of tenancy is not permissible.
According to the husband/opposite party no. 1, he is contesting the suit and shall contest the same till its logical end. It is further contended that the apprehension of the opposite party no. 2 about the C.O. 1772 of 2010 collusion has no semblance of truth, as the opposite party no. 1 is bona fide contesting the said ejectment suit. The opposite party no. 2 contends that the conduct shown by the petitioners and the opposite party no. 1 by filing compromise petition is one of the examples evident on the face of the record which suggests that the petitioners and the opposite party no. 1 have secretly joined hands to oust the opposite party no. 2 from the settled possession of the suit flat.
Having considered the respective submission, it is no doubt true that there is no privity of contract between the petitioners as landlords and the opposite party no. 2 as tenant in respect of the suit flat. Admittedly, a dispute exists between the opposite party no. 1 and the opposite party no. 2 which led to initiation of different proceedings, including proceedings for maintenance as well as under the Protection of Women From Domestic Violence Act, 2005.
On identical facts, this Court, in the case of Hiran Bala Debi & Anr. -vs- Prodyut Kumar Mondal & 4 Anr., reported in CAL .LT. 1991 (1) HC 32, held that the wife would be vitally affected by the result of the suit and in order to do complete adjudication of all questions involved in the suit. Paragraph 11 of the said judgment is quoted below :
"11. 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 form 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.
12. The opposite party no. 2 satisfies all the C.O. 1772 of 2010 tests. The result of the ex parte decree will very much affect her. He plea of benami may not be tenable in law. Neverthrless, despite her presence Court will not be required to answer any issue other than those that would arise from the written statement of the husband-tenant. The wife cannot take or be permitted to take any defence that the husband could not take. And thirdly, her presence is very much necessary for complete and effective adjudication of the questions involved in the suit, viz. Whether there was default and whether the landlords reasonably require the suit premises for their own use and occupation.
13. The petitioners rely upon an unreported Bench decision of this Court in Ranubala Ghosh vs. Nirmal Kumar Basak (C.O. 1713 of 1989) delivered on 5 Feb. 6, 1990. The petition for addition was rejected on the ground that the court would be required to decide a new issue, viz. Whether the petitioner became a direct tenant under the landlord after surrender of tenancy by the husband. In B.K. Dutt vs. Nita Madan and another (AIR 1984 Cal 228) the landlord sued a lady for eviction impleading her as his tenant. Husband sought to be added in the suit on his plea that he was the tenant while the wife did not disown tenancy. In this case also a new issue will arise as to whether the husband is the tenant. The members of a mess asked for addition in a suit for ejectment against one of the members of the mess who accepted the tenancy. Allegation was that the defendant was not seriously contesting ythe suit. Court refused additon in Golokesh Cs. M/s. Koley Properties (P) Ltd. (1978(1) CLJ 440). None of the cases cited by the petitioners satisfies the test laid down by me above. So they have no application in the instant case. The decision in Bishnupada Jana vs. Gurupada Manna (1977(1) CLJ C.O. 1772 of 2010
136) cited by the petitioners has no relevance in this case."
The Apex Court, in the case of B.P. Achala Anand -vs- S. Appi Reddy & Anr., reported in (2005) 3 SCC 313, held that a deserted wife is entitled to contest eviction suit filed against the husband/tenant provided that the husband has given up to contest or is not interested in contesting the suit or his action is prejudicial to the interest of the wife and secondly, the 6 contest or the defence of the wife would not be higher than the husband in the following words :
"12. Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a Will to defeat such a right. (See Mulla: Principles of Hindu Law, Vol. I, 18th Edn., 2001, paras 554 and 555.) The right has come to be statutorily recognised with the enactment of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoptions and Maintenance Act, 1956 as to include C.O. 1772 of 2010 therein provision for residence amongst other things. For the purpose of maintenance the term "wife" includes a divorced wife.
32. In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial 7 home is entitled to contest the suit for eviction field against her husband in his capacity as tenant subject to satisfying two conditions; first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife should be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as by availing the benefit of the provisions of the Transfer of Property Act and rent cont5rol legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part o of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.
33. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of sub- letting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of her C.O. 1772 of 2010 8 eviction attributable to default or neglect of himself We are inclined to hold - and we do so - that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as of is to give the wife's right to residence a meaningful efficacy and dictated by the needs if the times; we do not intend nor do we propose the landlord's right to eviction against his tenant be subordinated to the wife's right to a residence enforceable against her husband. Let both the rights coexist so long as they can."
The conduct of the opposite party no. 1 is very much evident from the following facts :
(i) Letter of surrender dated 15th February 2008 is executed by the husband with a clear stipulation to vacate the premises on or before 31st March 2008;9
(ii) A compromise petition was filed for decreeing the suit for eviction;
(iii) Non-deposit of the rent in the said suit premises.
C.O. 1772 of 2010 From the aforesaid conduct, the bold statement of the husband before this Court that he shall contest the suit till its logical end is unbelievable. I do not find any illegality and/or infirmity in the impugned order passed by the trial Court.
The revisional application is bereft of any merit and is, therefore, dismissed. However, in peculiar facts and circumstances, there shall be no order as to Later costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.) After the order is passed, Mr. Kali, learned Advocate for the petitioners, prays for stay of operation of the order. The same is considered and rejected.
(Harish Tandon, J.)