Calcutta High Court
Graphite India Limited vs Smt. Bandana Bose And Anr. on 24 March, 2005
Equivalent citations: (2005)3CALLT101(HC)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is directed against an order being Order No. 40 dated 2nd December 2004 passed by the learned Civil Judge (Senior Division) , 2nd Court at Alipore m Title Suit No. 40 of 2000.
2. The petitioner herein is an applicant for addition of party in the suit.
3. By the order impugned, the petitioner's prayer for addition of party in a suit for eviction filed by the opposite party No. 1 against the opposite party No. 2 herein, on the ground of default and subletting, was rejected by the learned Judge.
4. The opposite party No. 2 is the admitted tenant of the opposite party No. 1 in respect of the suit property. It is also admitted by the plaintiff that the tenancy agreement stipulates the following condition:
"Not to transfer or assign or sublet or part with the possession of the demised premises or any part thereof without the specific consent in writing of the Lessor except to any of its group or sister concern as may be found necessary at the time under the same terms and conditions hereof." -
5. The petitioner claims that pursuant to the said stipulation, the possession of the said tenancy was made over by the defendant/opposite party No. 2 to the petitioner herein which is a part of the group of company commonly known as Bangur Group to which the defendant No. 2 company belongs, as sister concern. The petitioner claims that Sri K.K. Bangur was a common Director of both the companies.
6. It is further claimed by the petitioner that the plaintiff/opposite party No. 1 is aware that the petitioner is in possession of the said premises since December 1997, as the petitioner had been making payment of the service charges to the Society which is responsible for maintenance of the common parts of the Suit Property and had also been making payment of the electricity charges in terms of the said agreement since December 1997.
7. On enquires made by the petitioner, the petitioner came to learn that the defendant/opposite party No. 2 has not filed any written statement as yet in the said suit for eviction. Accordingly, the petitioner felt that the defendant/opposite party No. 2 may be acting in collusion with the plaintiff to evict the petitioner from its lawful possession in the suit property.
8. In the aforesaid circumstances, the petitioner herein filed this application under Order 1 rule 10 of the Code of Civil Procedure seeking its addition in the suit as defendant therein.
9. Such an application was rejected by the learned trial Judge by the order impugned by holding, inter alia that in a suit for ejectment, it is for the plaintiff to decide against whom she will proceed. The learned trial Judge held that normally third parties cannot be impleaded in any ejectment suit. On consideration of the materials placed, the learned trial Judge came to a finding that the materials produced are not sufficient for coming to the conclusion that both the companies are sister concerns belonging to same group.
10. The learned trial Judge also disbelieved the alleged collusion between the opposite party Nos. 1 and 2 herein in the background of the claim of the petitioner that the petitioner and the opposite party No. 2 are sister concerns. The learned trial Judge held that if the opposite party No. and the petitioner are sister concerns, then the opposite party No. cannot take any step adverse to the interest of its alleged sister concern, viz., the petitioner herein.
11. Such an order is under challenge before this Court in this application under Article 227 of the Constitution of India.
12. Mr. Saktinath Mukherjee, learned Senior Advocate, appearing on behalf of the petitioner, submitted that when the petitioner company which is in lawful possession of the suit premises has come forward to get itself impleaded in the suit as party defendant to protect its possession, its prayer for addition ought not to have been rejected by the learned Court below, particularly in the given situation where fraud and collusion has been pleaded against the parties to the suit coupled with the nature of the tenancy agreement which authorises the tenant to sublet, assign, and/or with possession to any of its group or sister concern without specific consent in writing from the landlady.
13. Mr. Mukherjee further submitted that though the tenancy agreement was signed by the opposite party No. 2 herein, but In fact, such tenancy was taken for the benefit of the Bangur Group of company of which the petitioner is a part.
14. By relying upon a decision of this Hon'ble Court in the case of Benimadhab Mahrotra v. Howrah Flour Mills Ltd., reported in AIR 1958 Cal. 172, Mr. Mukherjee submitted that in a similar situation, the Division Bench of this Hon'ble Court allowed the sub-lessee's prayer for addition of party in the suit when two sister concerns were trying to obtain a collusive decree to evict the sub-lessee who had been in lawful possession of the disputed premises.
15. Mr. Mukherjee further submitted that the concept of taking tenancy by one for the benefit of others, is not unknown to the legal parlance. In support of his said contention, Mr. Mukherje relied upon a decision of the Hon'ble Supreme Court in the case of Niranjan Kumar v. Shyan Singh , wherein it was held that in view of the provisio 4 to Section 92 of Evidence Act, it was open to the appellants to lead evidence to show that there was, apart from the rent note, a distinct subsequent oral agreement under which the terms of the original contract or grant were modified and that the partners of the firms, both before and after its re-composition, were the real tenants of the shop.
16. Thus, Mr. Mukherjee submitted that when the petitioner is claiming to be a beneficiary of the said tenancy, the petitioner's prayer for addition of party ought not to have been refused, particularly when collusion between the plaintiff and the defendant is apparent.
17. Lastly, Mr. Mukherjee submitted that avoidance of a multiplicity of a proceeding is also one of the objects of the said provision contained in Order 1 Rule 10 of the Code of Civil Procedure. In support of such contention Mr. Mukherjee also relied upon another decision of the Hon'ble Supreme Court in the case of Savitri Devi v. District Judge, Goraklipur, , wherein it was held as follows :
"9. Order 1 Rule 10 CPC enables the Court to add any person as a party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code."
18. Thus, Mr. Mukherjee submitted that if that be the position in law, the prayer for addition made by the petitioner cannot be refused in the background of the instant case. Accordingly, Mr. Mukherjee invited this Court to interfere with the order impugned and to allow the petitioner to be added in the suit, so that the dispute involved in the said suit can be adjudicated upon effectively in the presence of the petitioner.
19. Mr. S.P. Mukherjee, learned Advocate, appearing for the opposite party No. 1, submitted before this Court that the said suit was filed by the plaintiff/opposite party for eviction of the defendant/opposite party No. 2 on the ground of default in payment of rent as well as on the ground of subletting to the petitioner herein.
20. Mr. Mukherjee further contended that subletting by the opposite party No. 2 in favour of the petitioner is admitted by the petitioner through its Solicitor's letter. Thus, in any event, the said sub-tenant cannot claim any right to be impleaded as a party in the suit under Section 13(2) of the West Bengal Premises Tenancy Act which provides for addition of the notified sub-tenants only as a party to the ejectment suit. Here in the instant case, the petitioner never claimed that the petitioner ever served any notice under Section 16 of the said Act upon the landlady within the prescribed time after the creation of such sub-tenancy.
21. According to Mr. Mukherjee, the petitioner who is unable to show prima facie that notice of creation of sub-tenancy had been served by such sub-tenant upon the landlady in the manner as prescribed in the said Act, cannot claim its addition as a party to the suit. In support of such contention, Mr. Mukherjee relied upon a decision of the Hon'ble Supreme Court in the case of Biswanath Poddar v. Archana Poddar , wherein it was held that if any sub-tenancy is created contrary to the provisions of the Act, it becomes unnecessary for the landlord to impleaded the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy.
22. By relying upon another unreported Division Bench decision of this Hon'ble Court in the case of Gajanand Lohariwalla and Ors. v. Dr. Raghubir Rajbhandari and Anr., Mr. Mukherjee submitted that the presence of the petitioner is not at all necessary for effective and complete adjudication of the dispute involved in the suit. Mr. Mukherjee submitted that if the petitioner wants to establish its right in respect of the suit property, the petitioner may initiate a separate proceeding, in the manner as indicated by the Division Bench of this Hon'ble Court in the said unreported decision.
23. Mr. Mukherjee further pointed out that this Hon'ble Court in the said decision held that under the scheme of the amended provisions under Rule 97 to 105 of Order 21 of the Code of Civil procedure all questions including questions of title and interest of a person who is in possession of a property may be determined in the said proceedings.
24. Thus, Mr. Mukherjee submitted that if that be the position in law, then the petitioner cannot be allowed to be impleaded in this suit and as such no interference is necessary with the order impugned in the facts of the instant case.
25. Let me now consider the respective submissions of the learned Advocates of the parties.
26. Suit for eviction is a suit based on contract between the landlord and the tenant. It is an undisputed fact that the tenancy agreement was executed by and between the plaintiff and the defendant.
27. On perusal of the application for addition of party, it appears to this Court that the Petitioner is claiming that pursuant to the tenancy agreement possession was parted with by the defendant to the petitioner herein in December 1997. The petitioner wants to protect its right of possession on a plea that as if the tenancy was taken by the defendant for the benefit of Bangur group of which the petitioner is a part along with others including the defendant herein as sister concerns.
28. The petitioner has also pleaded collusion between the plaintiff and the defendant. Since the defendant has not filed any written statement to contest the said suit, the petitioner has come forward with such an application to protect the said tenancy as a beneficiary thereof.
29. The claim of the petitioner as made out in this application is no doubt a departure from the claim which the petitioner made in its advocate's letter, as referred to in the said application, wherein the petitioner claimed its sub-tenancy right in respect of the suit premises. But in any case, what right the petitioner has acquired in the suit property is a matter of consideration in the suit itself. Such right requires to be adjudicated upon, in trial on evidence, but at this stage the Court is not concerned as to whether the petitioner will ultimately be able to prove its claim or not. At this stage, the Court is only concerned as to whether the presence of the petitioner is necessary or not for adjudication of the dispute involved in the suit.
30. The petitioner is no doubt in possession in the suit property. Some payments on account of service charges are being realised by the society responsible for maintenance of the common areas. The tenancy agreement also recognises the tenant's right of subletting, assignment and parting with possession to any of its groups or sister concerns without the written consent of the landlady. The said authorisation makes it clear that the plaintiff was even at the time of induction aware, that the tenant belongs to a group of company and it has its sister concern. All these facts coupled with the allegation of fraud and collusion between the parties, no doubt shows that the petitioner has some right over the suit property. But what this right actually is; can only be determined in the suit itself. As such, in my view, the presence of the petitioner is necessary for adjudication of the dispute involved in the suit particularly when allegation of illegal subletting by the defendant No. 2 to the petitioner has been made in the plaint itself and eviction has also been sought for on the ground of such illegal subletting.
31. It is no doubt true that the concept of taking tenancy by one for the benefit of another is not unknown to legal parlance, as pointed out be Mr. Saktinath Mukherjee with the authority of the Hon'ble Supreme Court in the case of Niranjan Kumar (supra).
32. On consideration of the decision of the Division Bench of this Hon'ble Court cited by Mr. Saktinath Mukherjee in the case of Benimadhab Mahrotra (supra), it appears to this Court that the Division Bench of this Court almost in a similar situation allowed the subtenant to be added as a party as the Court found that the plaintiff and the defendant were trying to obtain a collusive decree to evict a sub-tenant from the suit premises.
33. The unreported decision of this Hon'ble Court cited by Mr. S.P. Mukherjee, appears to be not applicable in the instant case, as the Division Bench of this Hon'ble Court rejected the application for addition of party in a case where fraud and collusion was not pleaded. It is no doubt true that a non-notified sub-tenant cannot seek his addition in a suit for eviction under Section 13(2) of the said act, as rightly pointed out by Mr. S.P. Muikherjee with authority of the Hon'ble Supreme Court, as aforesaid. But, here in the instant case, the petitioner is not coming with a prayer for his addition on the basis of his claim of unrecognised sub-tenancy. As such, the principle laid down in the case of Biswanath Poddar (supra) has no application in the instant case.
34. Avoidance of multiplicity of proceeding is no doubt one of the principles for addition of party under Order 1 Rule 10 of the Code of Civil Procedure as rightly pointed out by Mr. Sakatinath Mukherjee supported by the authority of the Hon'ble Supreme Court in the case of Savitri Devi (supra).
35. If I consider the petitioner's application from that angle, it appears to this Court that at least the petitioner has given one signal that the petitioner is interested to thrust out the petitioner's legal right in respect of the suit property. Whatever may be the nature of right, the petitioner can no doubt agitate the same even after the passing of the decree by following the provision under Rules 97 to 105 of Order 21 of the Code of Civil Procedure in the manner as pointed out by the unreported Division Bench decision of this Hon'ble Court in the case of Gajanand Lohariwalla (supra) cited by Mr. S.P. Mukherjee, as aforesaid.
36. Thus, when a post decree proceeding of like nature can very well be anticipated even prior to the disposal of the suit, in my opinion, for avoiding multiplicity of proceeding, the petitioner should be impleaded as a party to this suit, so that the rights of the respective parties concerning the said tenancy can be decided completely and effectively in the presence of the petitioner, particularly when the petitioner is not coming forward to contest the suit for establishing its independent right over the said tenancy. Rather the petitioner is coming forward to contest the suit as a beneficiary of the said tenancy with an allegation of fraud and collusion between the plaintiff and the defendant.
37. In such view of the matter, I allow the petitioner's prayer for addition of party. Let the petitioner be added as defendant No. 2 in the suit. The impugned order is, thus, set aside. There will be, however, no order as to costs. Urgent Xerox certified copy of this judgment, if applied for be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Later Mr. Banerjee, learned advocate appearing for the opposite party No. 1 prays for stay of operation of the Judgment which was opposed by Mr. S.D. Basu, learned advocate, appearing for the petitioner.
Having considered the respective submissions of both the parties, this Court does not find any reason to stay the operation of the Judgment.
Accordingly, prayer for stay is rejected.