IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION EC346OF2015G.A.1074 OF2015G.A.3723 OF2015G.A.3725 OF2015C.S.771 OF1981Tarun Kumar Ghose & ORS.-VSThe Credit Union Co-operative Enterprises Limited CORAM: HON’BLE Mr.JUSTICE HARISH TANDON For the Petitioner / Appellant : Mr.Jishnu Saha, Sr.Adv., Mr.A.Banerjee, Adv., Mr.A.Sinha, Adv., Ms.S.Bose, Adv., Mr.Z.Haque, Adv., Mr.S.Dasgupta, Adv., Mr.A.Chakraborty, Adv.For the Respondent / Opposite Party : Mr.S.N.Mitra, Sr.Adv., Mr.A.Roy, Adv., Mr.A.Ghosh, Adv.Judgment on : 11.04.2016 HARISH TANDON, J.: The present application is taken out challenging the Compromise Decree passed in C.S.No.771 of 1981 on the ground of collusion and fraud.
In other words, it is an application taken out by the St.
Marry’s Nursing Home Private Limited questioning the executability and enforceability of the said Compromise Decree and invited the Court to adjudicate the right, title and interest under Order XXI Rule 101 of the Code of Civil Procedure.
Undisputed Facts: Before proceeding to deal with the points agitated by the respective parties the salient facts are narrated hereinafter.
By registered Deed of Sale executed between one R.N.Ghosh, since deceased, the predecessor-in-interest of the present plaintiffs and the judgment debtor, the Credit Union Corporation Enterprises Limited for a period of twenty one years commencing from 1st July, 1960.
The entire premises No.2/1, Ho Chi Minh Sarani, formerly known as Harrington Street, Kolkata measuring about 1 Bigha, 17 Kathas, 5 Chhatak, 32 Square Feet of land together with the structure erected thereupon was demised unto and in favour of the said judgment debtor.
Apart from the other terms and conditions embodied therein two of such conditions which assumed importance for determination of the instant application and requires to be noted are that the lessee was debarred from creating any sub-lease or parting with possession either wholly or in part and there was no contemplation for renewal and / or extension of the period reserved therein.
Despite such prohibition an agreement was entered into between the judgment debtor and Dr.
A.K.Deb to set up and start a nursing home business in a portion of the demised premises and such agreement was entered into on 20th November, 1972.
A.K.Deb constructed and established St.
Marry’s Nursing Home and was running and managing its affairs as sole proprietor thereof.
Subsequently, it was converted into a partnership firm and thereafter a private limited company was incorporated who took over the assets and liabilities and the control of the said nursing home.
The lease expired by efflux of time on the advent of 30th June, 1981 but before the suit for recovery of possession could be filed a suit being Title Suit No.1211 of 1981 was instituted by Dr.
A.K.Deb in the City Civil Court at Kolkata for declaration and injunction.
The predecessor-in-interest of the present plaintiff namely Smt.
Durgabati Ghosh, the widow of Rabindra Chandra Ghosh, instituted a suit for recovery of possession against the judgment debtor being C.S.No.771 of 1981 before this Court on the ground of expiration of lease by efflux of time.
Amidst the pendency of the suit filed before this Court by the predecessor-in-interest of the decree holdeRs.the judgment debtor instituted a suit against Dr.
A.K.Deb in the City Civil Court at Kolkata which gave rise to registration of M.S.No.883 of 1982 claiming a decree for unpaid rent amounting to Rs.75,000/-.
It further transpired that the Title Suit No.1211 of 1981 instituted by Dr.
A.K.Deb was transferred to this Court and was reregistered as Extraordinary Suit No.15 of 1987 by invoking Clause 13 of the Original Side Rules.
While the aforesaid suits before this Court were pending the suit being M.S.883 of 1982 filed by the judgment debtor was decreed in their favour holding that Dr.
A.K.Deb enjoined the status of a monthly tenant and not as a licensee as alleged by the judgment debtor in the said suit.
It is pertinent to record that the suit transferred from the City Civil Court instituted by Dr.
A.K.Deb stood abated in absence of any steps being taken for substitution of heirs and legal representative of the Dr.
A.K.Deb who died during the pendency of the said suit.
However, an application was taken out by the present applicant for their implement in C.S.771 of 1981 asserting their right as monthly tenant and claimed immunity against eviction in the event the decree is passed against the judgment debtor therein.
The said application was finally heard and disposed of on 07.04.2009 with categorical finding that the applicant herein is neither necessary nor proper party in relation to the subject matter of the said suit.
The said order was assailed in an intra court appeal being APO No.139 of 2009, which was dismissed on 08.07.2009.
Immediately after dismissal of the said appeal, the applicant rushed to the City Civil Court and filed Title Suit No.3108 of 2010 seeking declaration of their tenancy right and injunction against the parties therein from disturbing and / or interfering of their peaceful possession in respect of the property described in the schedule appended to the plaint.
It is trite to mention that though the judgment debtors were contesting the C.S.771 of 1981 by filing the written statement taking multiple defences that they have acquired the status of a monthly tenant but ultimately a settlement was arrived between them which was reduced in writing and was filed before the Court for passing the decree in terms thereof.
Under the said settlement the defendant agreed to give vacant possession of the decreetal premises and the decree holder agreed to forego the claim towards mesne profit assessed at Rs.154 Crores (Approximately).Challenging the said Compromise Decree the applicant herein filed C.S.356 of 2014 seeking declaration that the Compromise Decree dated 03.09.2013 is void and inexecutable as the applicant has acquired the status of a monthly tenant.
A consequential relief in the form of injunction was further sought against interfering with the peaceful possession and occupation.
Initially an order of injunction in the form of status quo was passed on 30th September, 2013 but on an application under Order 7 Rule 11 of the Code of Civil Procedure taken out by the decree holder, the Court rejected the plaint as the suit is barred by law.
Resultantly, the present application has been taken out by the applicant for adjudication of their right, title and interest in respect of the premises in question and the Compromise Decree passed in C.S.771 of 1981 is inexecutable having obtained by collusion and fraud.
The case of the Applicant: The case made out in the present application, in nut shell, several correspondences were exchanged between the decree holders and the judgment debtor by which the rents were accepted after the expiration of lease by efflux of time and assent was given in continuance of possession amounting to holding over.
By asserting so it is sought to be contended that the decree holders have in express and categorical terms recognised the rights of the applicant as sub-tenant and therefore the compromise subsequently entered into between the decree holder and judgment debtor cannot take away the right of the applicant as notified sub-tenant therein.
Even by saying so the applicant further claimed his status that of a direct tenant under the decree holders on the basis of the alleged letters exchanged between the decree holders and the judgment debtor.
The Compromise Decree is further assailed on the ground of collusion and fraud as according to the applicant the judgment debtor had a good defence in the said suit which ended on compromise on the basis of the letter so exchanged and further a fraud is perpetrated not only upon the parties but also on the Court in not disclosing such letters rather suppressing it at the time of passing the Compromise Decree.
It is, thus, stated that the Compromise Decree has been obtained fraudulently with an object to affect the applicant and therefore has no binding force.
The Case of the Judgment Debtor: The decree holder has basically denied the statements made in the instant application.
What could be culled out there from is that the applicant cannot have a better title than that of the sub-lessee that too in violation of the clear prohibition reserved in the registered Deed of Lease.
It is further stated that there is no privity of contract between the decree holder and the applicant either by acceptance of the rent or otherwise.
There was no agreement between the predecessor-in-interest of the decree holder and the applicant at the time of taking a sub-lease that after the expiration of the lease the applicant shall be elevated to the status of a direct tenant in respect of a portion in their occupation.
The decree holders denied several letters written by the plaintiff No.1 namely Tarun Kumar Ghosh to the judgment debtor assenting their continuance in possession upon acceptance of the applicant.
The Court at the time of passing the Compromise Decree have not simply put the rubber seal into it but after recording its satisfaction that it is lawful which is a mandatory requirement under Order 23 Rule 3 of the Code.
Neither the judgment debtor nor the applicant have any protection under the provisions of the West Bengal Premises Tenancy Act, 1956 and therefore the sub-lessee is bound by the decree passed against the lessee.
The observations recorded by the City Civil Court in a Money Suit where admittedly the decree holders were not impleaded as parties, cannot bind them and no better right or title is created on the basis thereof.
There is no suppression of the facts before the Court at the time of passing the Compromise Decree which may remotedly suggest that there was a clandestine arrangement between the judgment debtor and the decree holders and therefore the said Compromise Decree is an outcome of collusion.
The assertion as to a fraud on Court is also denied.
In substance the decree holder denies that the Compromise Decree is inexecutable and not binding on the applicant having obtained collusively with an intent to evict the applicant.
Contention of the Applicant: Mr.Jishnu Saha, learned Senior Advocate appearing for the applicant at the very outset submits that the sub-lease was created with the full knowledge and consent of the lessor i.e.Rabindra Chandra Ghosh and his widow despite the bar created in the Lease Deed.
He further submits that the said lessor consented of continuance in possession after the expiration of the term provided in the Lease Deed as a tenant in respect of the portion in their occupation and such consent was further given after the expiration of the initial term.
According to him, the Title Suit No.1211 of 1981 was instituted by his client as the lessor contemplated to grant a lease of 99 years to one Vijay Kumar Thakkar which was contrary to the understanding and / or agreement as aforesaid but the said suit was not pursued further as the lessor decided not to grant the lease to the said person.
He audaciously submits that the judgment debtor clearly and expressly asserted in the written statement that they acquired the status of a tenant by holding over after the expiration of the term provided in the Lease Deed by accepting the rent and giving assent to such continuation.
He, further submits that once the judgment debtor acquired the right by holding over upon payment of rent on monthly basis and the assent of the lessor in continuance of the possession, such right is protected under the West Bengal Premises Tenancy Act, 1956 and therefore the sub-tenant who was inducted with the knowledge and consent of the superior lessor is also protected under the Rent Act.
By contending so, he further submits that even if it is assumed that the sub-tenancy was created without the consent and writing of the landlord, it does not ipso-facto make the status of the sub-tenant as trespasser but at best it is one of the grounds for eviction against the tenant and placed reliance upon a judgment of this Court in the case of Debabrata Mukherjee -versus Kalyan Kumar Roy reported in 1981(1) CLJ339and Panchu Gopal Saha –versus Usha Rani Modak reported in 1987(2) CHN718 He thus submits that though mere acceptance of a rent after the expiration of the period may not constitute holding over unless there is an assent of continuance in possession.
According to him, not only the rents for several months were accepted from the judgment debtor but the letters exchanged between the parties would sufficiently indicate the assent of continuance in possession.
It is thus submitted that once the tenancy of the judgment debtor is directed under the West Bengal Premises Tenancy Act, 1956 the Compromise Suit dehors the provisions contained therein is inexecutable and per se illegal.
He put much emphasise on a plea of collusion and fraud as according to him the judgment debtor has a good defence evident from the written statement filed in CS771of 1981.
Mr.Saha would further contend that the collusion is one of the ingredients when the Court can declare the decree a nullity and it is apparent from the materials on record that by clandestine agreement, the object was to evict the applicant from the premises in occupation.
On the plea of fraud Mr.Saha was very much vocal in his submission that the Court should not be jealous and would not permit the parties to reap the benefit from an act of fraud.
According to him, there was a clear suppression of several letters which were disclosed in the written statement at the time of passing the Compromise Decree.
He, however, submits that the Court was put in dark over the letters exchanged in couRs.of the said suit and vetting was obtained in gross suppression thereof.
He vehemently submits that in view of non disclosure of several letteRs.it is necessary to decide the cause after affording the opportunity to the parties to prove the same in trial.
The letters have been disclosed in the application, the genuinity and veracity thereof have been denied and therefore it becomes necessary that the Court should take aid of the expert opinion before proceeding to decide the disputes finally.
He, therefore submits that the Court should adjudicate the applications taken out by his client for appointment of a hand writing expert to compare the signature appearing on those letters with the signature of the plaintiff No.1 namely Tarun Kumar Ghosh and finally disposal of the instant application should be postponed.
The Contention of the Judgment Debtor: Mr.Surajit Nath Mitra, learned Senior Advocate appearing for the decree holder, refuting the contentions of the applicant both on facts and on law, vehemently submits that C.S771of 1981 was instituted against the judgment debtor on expiration of lease by efflux of time which is one of the grounds on which the lease determines under Section 111 of the Transfer of Property Act.
Even if the judgment debtor took plea of protection under the West Bengal Premises Tenancy Act, 1956 but subsequently realises that he did not have such protection and entered into a compromise on the basis whereof the decree was passed and therefore such act cannot be said either to be collusive or fraudulent.
He strongly took exception to the submission of the applicant that at the time of creation of a sub-lease, any assurance or agreement was given that it would be inducted as a tenant after the expiration of the term provided in the Lease Deed which would be evident from the agreement entered with the judgment debtor and the applicant in the year 1972.
He thus submits that the sub-lessee cannot claim higher right or title than of lessee and is bound by the decree passed against the lessee.
The protection under Section 116 of the Transfer of Property Act cannot be extended either to the judgment debtor or the applicant merely on receiving the rent after expiry of lease unless the lessor assents by conduct or otherwise in continuance of possession.
The suit for recovery of possession was filed on the ground of expiration of lease by efflux of time and not under the provisions of the West Bengal Premises Tenancy Act, 1956 and therefore the Compromise Suit cannot be impugned for want of existence of the grounds enumerated therein.
It is submitted that the sublessee cannot resist the decree passed against the lessee and therefore is bound by it.
According to him, the observations made in a suit between the judgment debtor and the applicant has no binding force on the decree holder and therefore the applicant cannot derive benefit from the observations recorded therein.
On the plea of collusion, it is submitted that the parties are at freedom to enter into an agreement in couRs.of a proceeding and can seek the decree to be passed thereupon.
The only requirement under Order 23 Rule 3 of the Code is that such compromise should be lawful.
He relies upon the order recording the compromise wherein there is an express indication that the Hon’ble Judge was conscious of such position of law and categorically observed that the compromise is lawful.
He, thus submits that the applicant has no case on the plea of fraud after the Court recorded its satisfaction that the compromise is lawful.
Mr.Mitra, strenuously submits that even the purported letteRs.whose existence, genuinity and authenticity are doubtful, are read harmoniously never suggested either a case of a holding over or a creation of a new tenancy or precisely the elevated status of the applicant to the category of a tenant and it is, therefore, unnecessary to post the instant case for trial.
According to him, the purported letters do not remotedly suggest the creation of new right either in favour of the judgment debtor or the applicant that their tenancies would be governed by the West Bengal Premises Tenancy Act, 1956.
He, thus concludes that the instant application is meritless, devoid of substance and therefore should be dismissed.
From the submissions advanced by the respective Counsels, the challenge to a compromise decree is summarised as under: Firstly; the applicant has acquired the status of a direct tenant as at the time of a creation of a tenancy the superior lessor, the predecessor-ininterest of the decree-holder herein had consented for the same and subsequent exchange of letters between one of the decree-holder as constituted attorney of the others would further corroborate the aforesaid facts.
Secondly, the compromise decree is in executable, in as much as, it is an outcome of collusion between the decree-holders and the judgementdebtor with an intend to evict the applicant from his occupation.
Thirdly, several letters would clearly reveal that the decree-holder subsequently assented for continuation of possession of the judgement-debtor which on the face of it would indicate that the lease of the judgement-debtor was renewed from month to month and such lease is protected by the provisions of the West Bengal Premises Tenancy Act, 1956.
Fourthly; there has been a gross suppression of the letters disclosed in the written statement by the judgement-debtors in C.S.No.771 of 1981 which renders a decree void as the fraud was practised not only upon the parties but also upon the Court.
Fifthly; the existence of tribal issue mandates the Court to adjudicate after permitting the parties to adduce evidence and not on affidavits.
Much emphasis is put on a plea of collusion and fraud, which if proved shall render the decree void and the person affected by such decree is not liable to be evicted.
The undisputed facts discernible from the pleadings are that the judgement-debtor was inducted as a lessee in respect of the demised premises in the year 1960 for a period of 21 years which admittedly expired in the year 1981.
Admittedly C.S.No.771 of 1981 was instituted for recovery of possession against the judgement-debtor on the ground of expiry of lease by efflux of time.
The expiration of lease by efflux of time is one of the indices of determination of lease under Section 111 (a) of the Transfer of Property Act.
In the written statement, the judgement-debtor stated that the rents were received even after the expiry of lease and, therefore, there was a novation of a contract by holding over and such tenancy is protected under the West Bengal Premises Tenancy Act, 1956.
A compromise was affected between the decree-holder and the judgementdebtor which was reduced in writing and forms part of an application under Order 23 rule 3 of the Code and a decree was passed thereupon.
Status of a sub-lessee under Transfer of Property Act Chapter 5 of the Transfer of Property Act deals with the leases of the immovable property and contains various provisions relating to the right and obligation of the lessor and lessee and also the sub-lessee or under lessee and the protection provided and available to them.
Section 105 in it clear terms states that the lease of immovable property is a transfer of a right to enjoy such property made for certain time expressed or implied or in perpetuity in consideration of price paid or promised of money or share of crops, service or anything of value whether paid periodically or on specified occasion to the transferor by the transferee.
Section 106 contains the provision relating to the termination of the lease by notice in writing and signed by a person giving it indicating the period depending upon the nature of the lease.
Section 108 indicates the rights and liabilities of lessor and lessee subject to the contract or local usage to the contrary.
Two clauses under rights and liabilities of the lessee under the said section are relevant for the instant purposes.
Clause (j) thereof permits the lessee to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property except in case of in transferable right of occupancy.
Clause (q) makes it obligatory on the part of a lessee to put the lessor-inpossession of the property on determination of lease.
The grounds on which the lease would determine are provided under Section 111 of the Act wherein clause (a) clearly shows that the expiration of a period of efflux of time is one of the grounds for determination of lease.
The protection of the lessee against the eviction is further provided under Section 114 of the Act which can only apply when the determination is based upon the forfeiture for non-payment of rent or for breach of express conditions.
The rights of a sub-lessee or under lessee is recognised under Section 115 and 116 of the Act as in case of former, the sub-lessee or under lessee can challenge the forfeiture on the ground of fraud and in later case, the lessee or sub-lessee or under lessee can still defend their right to remain in occupation or possession upon the payment of rent to the lessor after the expiration of the period provided the lessor gives assents to continuing in possession.
It is no longer res integra that if the head lease goes either on expiration of period by efflux of time or forfeiture, it annuls all sub-leases or under leases.
It is only in case of forfeiture or surrender, the right of a sublessee or under lessee is protected provided a clear case of fraud or of like nature is proved.
The second part of Section 115 can be noticed where the right conferred upon the sub-lessee or under lessee is protected provided the forfeiture has been procured by the lessor by practising fraud or whether the relief against forfeiture is granted under Section 114.
It would further seem from an opening words of Section 108 that the rights and liabilities of the lessor and lessee are subject to the contract or local usage though the lessee is permitted under the law to transfer absolutely or by way of mortgage or sub-lease or under lease the whole or part of the demised premises but such right can only be exercised if the contract, in other words, lease deed, does not contain express bar or prohibition therefor.
There is a specific clause in the lease deed creating an absolute embargo on the judgement-debtor to create sub-lease or transfer such right in favour of a third party without the consent in writing and, therefore, the applicant, the sub-lessee, herein cannot claim a better right than the lessee.
Admittedly the protection under Section 115 of the Act cannot be extended to the applicant as the suit for recovery of possession was not founded on forfeiture but on expiration of time provided under the lease by efflux of time.
It is, therefore, aptly clear that the sub-lessees are not required to be impleaded in such suit and yet shall be bound by a decree passed therein.
Status of sub-tenant under West Bengal Premises Tenancy Act, 1956.
Section 14 of the West Bengal Premises Tenancy Act, 1956 contains a restriction on subletting after the commencement thereof without the consent and writing of the landlord either the wholly or in part of the premises held by the tenant.
Section 13 sub-section 1 (a) of the said Act provides a ground for eviction of a tenant on subletting if done without the written consent of the landlord.
It is obligatory on the part of the tenant or the sub-tenant to give a notice of sub-tenancy to the landlord within one month from the date of subletting in a prescribed manner under Section 16 of the said Act.
Such notified sub-tenant is required to be impleaded in a suit for recovery of possession under Section 13 (2) of the said Act.
Proviso to Section 13 (2) of the Act give protection to such notified sub-tenant against the decree or order for ejectment to be passed unless any of the grounds mentioned in clause (b) to (e) and (h) apply to him.
It is profitable to quote Section 13, which runs thus: “13.
Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely:(a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfeRs.assigns or sublets in whole or in part the premises held by him; (b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clause (m).clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882 (IV of 1982).(c) where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for immortal or illegal purposes; (d) where the tenant or any person residing in the premises let to the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises; (e) where the tenant or any person residing in the premises let to the tenant has been guilty of conduct which is a nuisance or annoyance to neighbours including the landlord; (f) subject to the provisions of the sub-section (3A) and section 18A, where the premises are reasonably required by the landlord for purposes of building or re-building or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations, cannot be carried out without the premises being vacated; (ff) subject to the provisions of sub-section (3A).where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation; (g) where the premises were let to the tenant for use as residence by reason of his being in the service of employment of the landlord and the tenant has ceased before or after coming into operation of this Act to be in such service of employment; (h) where premises let out for residential purpose have been used for any other purpose for more than four months without the consent in writing of the landlord; (i) where the tenant has made default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly; (j) where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice; (k) when subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so; (l) where the landlord is a member of the Armed Forces of the Union of India and requires it for the occupation of his family and produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925 (4 of 1925).that he is serving under special condition within the meaning that he is serving under special condition within the meaning of section 3 of that Act or he is posted in a non-family area.
Explanation.- For the purpose of this clause:
1) The certificate of the prescribed authority shall be conclusive evidence that the landlord is serving under special conditions or is posted in a non-family area.
2) “Family” means parents and such relations of the landlord as ordinarily reside with him and are dependant on him.].(2) The sub-tenants, if any, referred to in section 16 who have given notice of their sub- tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord: Provided that except in cases covered by clause (f) or clause (g) of sub-section (1).No decree or order for ejectment shall be passed against any such sub-tenant unless any of the grounds mentioned in clauses (b) to (e) and (h) apply to him.
(3) Save as provided in sub-section (2) and sub-section (4).a decree or order for the delivery of possession of any premises shall be binding on every sub-tenant.
[(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest: Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub-section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being heard, permits by order, the institution of the suit on the ground that the building or re-building or the additions or alterations, as the case may be, are necessary to make the premises safe for human habitation.].(4) Where the landlord requires the premises on any of the grounds mentioned in clause (f) [or clause (ff)].of sub-section (1) and the Court is of opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part only of the premises and allowing the tenant or the sub-tenant to continue in occupation of the rest, then, if the tenant or a sub-tenant agrees to such occupation, the Court shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant.
The rent so fixed shall be deemed to be the fair rent for purposes of this Act.
If the tenant does not agree but a sub-tenant agrees to such occupation, no decree or order for ejectment shall be passed against such sub-tenant and such sub-tenant shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord.
(5) Where under sub-section (2) a decree or order for ejectment is passed against a tenant but not against a sub-tenant, the sub-tenant shall become with effect from the date of the decree against the tenant, a tenant directly holding the landlord in respect of the premises in his occupation and he shall pay such rent as may be fixed by the Court.
The rent so fixed shall be deemed to be the fair rent for purposes of this Act.
(6) Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (1) except the grounds mentioned in clauses (j) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month’s notice expiring with a month of the tenancy.” It is, therefore, clear that the ground for eviction on subletting is not available to the landlord if the same is permitted in writing and the tenant and sub-tenant has notified such tenancy in prescribed manner.
The protection is restricted to a notified sub-tenant which is evident and/or apparent from sub-section 3 of section 13 of the said Act.
Even in the said Act, the intention of the legislature is aptly clear that the sub-tenant shall be bound by the decree for eviction passed against the tenant under the aforesaid provision unless he is a notified sub-tenant.
Holding Over Section 116 of the Transfer of Property Act imbibed within itself, the concept of holding over.
The Act of holding over after the expiration of the term does not create a tenancy of any kind under the said Act if the tenant remains in possession on mere payment of rent which does not ipso facto constitute the concept of holding over.
What is provided under the said section is that there must be an express offer of taking a new lease and payment of the rent by the lessee or the under lessee and corresponding obligation on the part of the lessor to give definite assent to the continuation of such possession.
It is, therefore, a bilateral act.
In case of Kai Khushroo Bezonjee Capadia –v- Bai Jerbai Hirjibhoy Warden & anr; reported in 1949 FCR262 the Federal Court succinctly observed that though it is an obligation of the lessee to deliver of the possession of the demised premises to the lessor and if it does nor and there is no assent not dissent on his part to such continuation, he cannot lawfully hold the land and no title passes on him.
It is only when the landlord accepts rent from such person or otherwise expresses assent to continuance of such possession, a new tenancy comes into existence as contemplated under Section 116 of the Transfer of Property Act.
In case of Ganga Dutt Murarka –v- Kartik Chandra Das & ORS.reported in AIR1961SC1067 the Supreme court observes that there is no express bar against the landlord to assent in continuance of the possession by acceptance of the rents provided such assent is justifiably inferred on an express contract or by conduct of the parties.
The Division Bench of this Court in case of Shila roy Choudhury & ORS.-v- Nimai C.
Rakshit reported in 2006 (4) CHN7further held: “16.
The basis of section 116 of the Transfer of Property Act is a bilateral contract between the erstwhile lessor and erstwhile lessee.
Therefore, to create a new tenancy, there must be a bilateral act.
There must be an offer of accepting a renewed or fresh demise and there must be a definite assent expressed by the lessor.
Mere acceptance of an amount equivalent to rent by the erstwhile lessor cannot be regarded as evidence of new tenancy.
The expression “holding over” means that relationship of landlord and tenant was allowed to continue with the consent of both the parties.
It is for the lessee to prove the overt acts by which the relationship was allowed to continue.” Collusion: As the law advances the collusion is recognised as one of the tools and the Court viewed seriously in the judicial proceeding.
It is one of the facets when the Court declares the things done on collusion a nullity.
Lord Selborne, LC in Boswell –versus Coaks (1894).Rep 167 defines the collusion to be essentially play-acting by two or more persons for one common purpose – a concerted performance of a fabula disguised as a judicium – an unreal and fictitious pretence of a contest by confederates whose game is the same.
In Wharton’s Law Lexicon, 14th Edition, the collusion is defined in judicial proceeding as a secret arrangement between two person that one should institute a suit against the other in order to obtain the decision of a Judicial Member for some sinister purpose.
In case of Nagubai Ammal & ORS.–versus B.
Samar Rao & ORS.reported in AIR1956SCC593it is held:- “collusion in judicial proceeding is a secret arrangement between two persons that one should institute a suit against the other in order to obtain the decision of Judicial Member for some sinister purpose.
In such a proceeding, the claim put forward is fictitious, the contest over it is an unreal and the decree passed therein is a mere mask having the simplitude of a judicial determination and worn by the purpose with the object of confounding third parties.” The advancement of such law can further be seen in case of Rup Chand Gupta –versus Raghuvanshi Private Limited reported in AIR1964SCC1889wherein it is held that mere agreement by the defendant that if the suit is brought against him he would not defend does not necessarily prove collusion.
The decree can be said to be collusive only if such agreement is done improperly in the sense that a dishonest purpose is intended to be achieved.
The collusion has been treated as secret agreement for illegal purposes or conspiracy, implying that a person does something evil designedly in Subhas Chand –versus Gangaprasad reported in AIR1967SCC878 The collusion is distinct with fraud and it would not be appropriate term to apply to obtain a decree by fraud.
In this regard, the following observation of the Privy Council in case of Bindeshwari Charan Singh –versus Bageshwari Charan Singh reported in AIR1936PC46may be noticed:- “Although the question of collusion is maintained in the respondent’s case, it could not be seriously pressed in view of the concurrent findings of the Courts below, but their Lordships desire to point out that collusion is not the appropriate term to apply to the obtaining of a decree by a fraud on the Court; the terms of the issue suggest that the Court was implicated in the matter.” The relevant observations of the Supreme Court in case of Nagubai Ammal (supra) may be useful in this regard which is quoted below:- “Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent.
“Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose”.
(Wharton’s Law Lexicon, 14th Edn., p.
212).In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties.
But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court.
such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties.
While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.
The allegations in the petition of Abdul Huq set out above show that the suit itself was not attacked as collusive, but that the execution proceedings were impeached as fraudulent.
It should be mentioned that on this petition the District Judge passed an order on 30-6-1932 directing the Official Receiver to take the necessary steps and report.
but nothing came out of this.” It is, therefore, clear that in order to bring this case within the purview of a collusion the contest must be unreal and illusory when both the parties are aware that they have no legal right to it but yet sinisterily agreed by deceitful agreement to do mischief to a third party or with an intent to gain something improperly.
It implies a commonity of purpose and intention between the parties colluding.
The mere fact that the defendant agrees not to contest the suit brought against him does not ipso-facto render such decree liable to be struck down on the anvil of collusion.
It must be apparent and patent that an arrangement by such collusion may serve as a cloak to gather up the real state of affaiRs.The authoritative words on collusion given by the Supreme Court in case of Gram Panchyat of Village Naulakha –VsUjagar Singh reported in 2000(7) SCC543may be useful to understand the true meaning of the expression “collusive” which are reproduced below:-“6.
It appears from the commentary in Sarkar’s Evidence Act (13th Edn., Reprint, at p.
509) on Section 44 that it is the view of the Allahabad, Calcutta, Patna and Bombay High Courts that before such a contention is raised in the latter suit or proceeding, it is not necessary to file an independent suit.
The passage from Sarkar’s Evidence which refers to various decisions reads as follows: “Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside (Bansi Lal v.
Dhapo, Rajib Panda v.
Lekhan Sendh Mahapatra, Parbati v.
Gajraj Singh, Prayag Kumari Debi v.
Siva Prosad Singh, Hare Krishna Sen v.
Umesh Chandra Dutt, Aswini Kumar Samaddar v.
Banamali Chakrabarty, Manchharam v.
Kalidas, Rangnath Sakharam v.
Govind Narasinv, Jamiraddin v.
Khadejanessa Bibi, Bhagwandas Narandas v.
D.D.Patel & Co., Bishunath Tewari v.
Mirchi and Gurajada Vijaya Lakshmamma v.
Yarlagadda Padmanabham).” Thus, in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram case for a declaration as to its collusive nature or for setting it aside, as a condition precedent.
In our opinion, the above cases cited in Sarkar’s Commentary are correctly decided.
We do not agree with the decision of the Full Bench of the Punjab and Haryana High Court in Jagar Ram case.
The Full Bench has not referred to Section 44 of the Evidence Act or to any other precedents of other courts or to any basic legal principle.”
8. Collusion, say Spencer-Bower and Turner (para 378).is essentially play-acting by two or more persons for one common purpose — a concerted performance of a fabula disguised as a judicium — an unreal and fictitious pretence of a contest by confederates whose game is the same.
As stated by Lord Selborne, L.C.in Boswell v.
Coaks: There is no Judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating … no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur.
That, in our view, is the true meaning of the word “collusion” as applied to a judicial proceeding.” The judgement in case of Biswabani PVT.LTD.–v- Santosh Kumar Dutta & ORS.reported in (1980) 1 SCC185does not appear to lend support to the applicant.
The facts involved therein relates to a status of a person who admittedly was accepted as a monthly tenant but subsequently agreed to remain in occupation under a lease to be executed in terms of a compromise effected between the parties in a civil suit.
The lease was never executed nor can be said to be void for want of registration under Section 107 of the Transfer of Property Act read with Section 17 of the Registration Act.
Admittedly the induction was made on the basis of a registered lease dated September 11, 1948 for a period of 5 years and a suit for recovery of possession was filed on expiration thereof.
It was admitted by the lessor that between the period after expiration of lease and before the commencement of the void lease, the status of the lessee was a monthly tenant as it continued to pay rent to the lessor and assent in continuance of such possession was also evident.
The second lease which was agreed to commence from March 1, 1955 for a period of 5 years was found to be void because it was never executed nor the same was registered with the registering authority.
In the above perspective, it was held that if the lessee continued under a void lease but was accepted as a monthly tenant after the fiRs.lease expired by efflux of time, the monthly tenancy does not extinguish and the protection under the Rent Restriction Act was extended to the appellant therein.
The ratio laid down therein can be applied in the event the lessor treated the lessee as a monthly tenant by accepting the rent and assents for continuing in possession after the expiration of lease.
The right of a sub-tenant being dependent upon the right of the tenant, unless the tenant having found to have protection under the West Bengal Premises Tenancy Act, 1956, such protection cannot be extended to the sub-tenant.
There is no privity of contract between the superior landlord and the sub-tenant.
In the instant case, the applicant itself asserts his right as a sub-tenant and claims protection on the premise that the lessee after the expiration of lease has paid rent for few months and/or acceptance thereof, the presumption as to assent in continuing in possession can be readily inferred.
Admittedly the lessee did not pursued its claim on the above facts and have accepted his status as tenant at sufferance after the expiration of the period provided under the registered lease.
In Indo Europa Trading Co.PVT.LTD.–v- Anil Poddar & ORS.reported in 2007 (2) CHN303 the point which arose for consideration was the status of a lessee who was allowed to occupy the premises after the expiration of initial term reserved in the registered lease under the renewal clause without having exercised the option and/or without the fresh lease being executed and registered for renewed term.
The facts involved in the said case was that the lessee was put in possession in respect of the demise premises for a period of 10 years under a registered lease.
One of the terms contained in the said lease was that the lessee had an option to renew the lease for further period of 11 years provided such option is exercised.
On the expiration of the original term, the lessee continued in possession upon payment and acceptance of rent until a suit for recovery of possession was filed on expiration of both the original and the renewed period.
There was some dispute as to whether the lessee exercised an option for renewal though it was contended on behalf of the lessor that such option was exercised and the lessee remain in occupation and/or possession under the renewal clause.
The Division Bench noticed the distinction between the renewal of lease and extension of lease and observed that in absence of any clause for extension, the possession under the renewal clause without a separate document in writing and registered with the registering authority cannot constitute the possession under the renewal clause.
In the above backdrop of the facts, it is held that upon payment and acceptance of rent after the expiration of the initial period reserved under the lease for several years amounts to assent in continuing in possession and, therefore, the protection against eviction under the West Bengal Premises Tenancy Act, 1956 is available to such lessee.
I am afraid whether such principle can be extended in the facts and circumstances of the instant case.
Admittedly the rents for certain months were paid by the lessee to the decree-holder which does not ipso facto lead to assent in continuance of possession to avail benefit under Section 116 of the Transfer of Property Act.
Furthermore, there is no renewal clause in the registered lease nor any case of continuance in possession is made out under the renewal clause.
Mere payment of rent for few months do not constitute the assent in continuance of possession unless the strong and cogent evidence in this regard is produced before the Court or at least the conduct of the parties leading to such presumption is evident from the available materials on record.
The judgement rendered by the Supreme Court in case of Mahabir Prasad –v- Surinder Kaur reported in AIR1982SC1043is of no assistance to the applicant.
In the given case, the eviction was sought against the tenant on the ground of sub-letting without the written consent of the landlord under East Punjab Rent Restriction Act, 1949.
The definition of a tenant engrafted therein not only includes a person by whom or on whose account rent is payable for a building or a rented land but includes a sub-tenant inducted with the consent in writing of the landlord.
In the above backdrop, it was held that a sub-tenant inducted lawfully enjoins the protection under the definition afforded to the tenant under the said Act.
It was held that the sub-tenant was inducted with the written consent of the landlord and, therefore, satisfies the definition of a tenant and cannot be evicted on the ground of illegal sub-letting.
The definition of a tenant under West Bengal Premises Tenancy Act, 1956 does not stand pari materia with the definition of a tenant under the East Punjab Rent Restriction Act, 1949.
The only protection which could be seen from Section 13 (3) of the said Act which provides that a notified sub-tenant shall be made a party in an eviction proceeding and, therefore, have a right to be heard before the eviction decree is passed.
The present case is not covered by the provision of the West Bengal Premises Tenancy Act, 1956 nor the applicant can be brought within the purview of notified sub-tenant under the said Act.
The decision in what is decided in the facts of the said case unless there is somewhat parity in the facts and the law applicable, the observations cannot be applied.
Furthermore, there is no evidence emanating from the pleadings that the applicant have paid rent to the decree-holder on existence of a privity of contract.
On the point that it is a statutory duty cast on the Court to decide the right, title and interest of a person approaching in Order 21 Rule 97 to 101 of the Code, there is no quarrel to the proposition laid down by this Court as well as the Supreme Court on the decision relied upon by the applicant.
It is equally true that if the documents available on record if taken into consideration are sufficient enough to adjudicate the right, title and interest agitated by the applicant, it would be an exercise in futility to hold a fullfledged trial.
The adjudication under the aforesaid provision are summary in nature and it is not necessary to invite the parties to lead evidence in extenso as under a regular civil suit.
Since this Court does not find that the documents so relied lend support on the right, title and interest claimed by the applicant, there is no necessity to permit the applicant to hold an inquiry on full-fledged trial.
On the discussion indicated above, the applicant does not have any independent status dehors the judgement-debtor and is bound by the decree passed in civil suit No.771 of 1981.
All the three applications namely G.A.1074 OF2015 G.A.3723 OF2015 G.A.3725 OF2015are, therefore, dismissed.
However, in the facts and circumstances of the case, there is no order as to costs.
(Harish Tandon, J.) LATER: Mr.Saha prays for stay of the operation of the Order.
Considering the nature of the application and consequence whereof the operation of this order is stayed for a period of 4 (Four) weeks.
(Harish Tandon, J.)