Calcutta High Court (Appellete Side)
Arun Kumar Singh & Anr vs M/S. Ratan Investment Private Limited & ... on 14 March, 2019
1 14.03.2019Sl No. 02 Ct. No. 7
P.M. In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 2974 of 2018 With C.A.N. 786 of 2019 Arun Kumar Singh & Anr.
- Vs -
M/s. Ratan Investment Private Limited & Anr.
Mr. M. M. Verma, Ms. N. Verma, Ms. Punam Verma.
... for the petitioners Mr. Ayan Banerjee, Mr. Arijit Bhowmick ... for the opposite party No. 1 The present challenge is at the instance of an alleged sub-tenant in respect of the suit premises.
Learned counsel for the petitioner submits that the trial Court acted without jurisdiction in refusing the petitioners' prayer under Order I Rule 10 of the Code of Civil Procedure for adding themselves as parties to an eviction suit filed by the superior landlord, that is, the present opposite party No. 1, against the immediate landlord of the petitioners (present opposite party No. 2). 2 It is argued, in consonance with the averments made in the application under Order I Rule 10 of the Code of Civil Procedure, that the alleged surrender of the opposite party No. 2-tenant in favour of the landlord could not entitle the landlord to get a decree without impleading the present petitioners, since, in that event, the petitioners would become direct tenants under the superior landlord.
It is further argued, by placing reliance on a purported letter written by the petitioners to the superior landlord, that a written consent was given by the superior landlord to the tenant for the subletting in favour of the petitioners. As such, it is alternatively argued that the opposite party No. 1/landlord is not entitled to get an eviction decree against the tenant under Section 6 (1) (a) of the West Bengal Premises Tenancy Act, 1997, at least without impleading the present petitioners as parties.
It is submitted by learned counsel for the petitioners that the trial Court acted without jurisdiction in shutting out the petitioners from participating in the suit, since there was a patent collusion between the superior landlord and the immediate landlord of the petitioners.
Learned counsel for the plaintiff/opposite party No. 1, that is, the superior landlord, places reliance upon the provisions of Section 5 (5) and Section 6 (1) (a) of the Act of 1997 and submits that unless there was a consent in writing by the landlord to the tenant for subletting the suit premises, the sub-tenant was not entitled to be impleaded in a suit for eviction and the superior landlord was 3 within its rights to maintain the eviction suit under Section 6 (1) (a) of the 1997 Act. In the present case, it is argued, the petitioners categorically admitted in paragraph 4 of the application for addition of party that the superior landlord allegedly accorded oral permission to the tenant of first degree to sublet the premises. It is submitted that even if the said statement was true, although not admitted to be true by the opposite party No. 1, the same would not give any privilege to the petitioners inasmuch as Section 26(1), Section 6(1) (a) as well as Section 5(5) of the 1997 Act envisage written consent / permission to be given by the landlord.
Learned counsel for the opposite party No. 1 places reliance on a judgement reported at (2001) 8 Supreme Court Cases 187 (Biswanath Poddar versus Archana Poddar and Another). On the basis of such citation, it is argued that the Supreme Court held the provisions of Section 14 of the West Bengal Premises Tenancy Act, 1956, which was the predecessor of the present Act of 1997, to be mandatory. Section 14 of the 1956 Act stipulates that after the commencement of the Act no tenant shall, without previous consent in writing of the landlord, sublet the whole or any part of the premises held by him as a tenant.
Section 5(5) of the 1997 Act, on the other hand, stipulates that no tenant shall sublet the premises without consent of the landlord in writing. 4
It is evident from the averments made in the petitioners' application under Order I Rule 10 of the Code of Civil Procedure that the petitioners claimed that an oral consent had been given by the landlord to the tenant for subletting. Such oral consent, even if deemed to be true, could not confer any protection on the sub-tenant inasmuch as Section 6(1) (a) of the 1997 Act is concerned. The said provision specifically stipulates that where the tenant has sublet a whole or part of the suit premises without obtaining the landlord's consent in writing, the landlord is entitled to get eviction against the tenant.
In consonance with the judgement of the Supreme Court, as cited on behalf of the opposite party No. 1 the provisions of Section 5(5), which are pari materia with that of Section 14 of 1956 Act, have to be read as mandatory. Hence, as has been well settled by judicial opinion of this Court as well as the Supreme Court, the sub-tenant did not have a right to be impleaded in a suit for eviction against the tenant on the ground of subletting.
The other argument, as to direct tenancy being accorded, does not hold good since the Section 26 of the 1997 Act clearly precludes sub-tenants inducted after the commencement of the 1997 Act from taking advantage of Sub-Section (3) of the said Section by asking for a direct tenancy to be created in their favour. Such a right was conferred by the 1997 Act only on pre-1997 Act sub-tenants and would mature only upon the landlord acceding to such request of direct tenancy or the Controller passing an order to that effect. In the present case, not 5 only were the petitioners post-1997 Act sub-tenants, there was no averment of full compliance of Section 26(3) by culmination in the landlord's consent or the Controller's order as such. Hence, the plea of direct tenancy, alternatively taken for addition of party, also has to be turned down.
In such view of the matter, the trial Court was justified in rejecting the petitioners' application for addition of party.
An alternative argument was advanced on behalf of the petitioners, that two other suits are pending, in one of which initially an injunction order was passed and in the other an injunction order is subsisting, restraining the possession of the petitioners from being disturbed by the superior landlord as well as the immediate landlord.
However, such injunction orders do not have any bearing on the application for addition of party in the present suit, since the present suit pertains only to the eviction of the tenant from the suit premises, being governed by the provisions of Section 6 of the West Bengal Premises Tenancy Act, 1997. As such, the limited scope of the present lis does not afford the luxury of looking into orders passed in other suits filed for declaration and injunction before a regular Civil Court, at least for the limited purpose of deciding whether the petitioners are necessary or proper parties to the eviction suit. 6
Accordingly, this revisional application, bearing C.O. 2974 of 2018, is dismissed without any order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Sabyasachi Bhattacharyya, J.)