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Benimadhab Mahrotra Vs. Howrah Flour Mills Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.O. Nos. 346-347 of 1984
Judge
Reported inAIR1985Cal172,89CWN77
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; ;West Bengal Premises Tenancy Act, 1956 - Sections 13(2) and 16(1)
AppellantBenimadhab Mahrotra
RespondentHowrah Flour Mills Ltd. and anr.
DispositionApplications allowed
Cases ReferredVydiananda v. Sitarama
Excerpt:
- .....that the defendant, french motor car company held no part of the disputed three premises. the suit premises was a part of the settlement made in favour of the petitioner under the tripartite agreement referred to hereinbefore. the suit had been instituted only to obtain a collusive decree to evict the petitioner from a part of the premises held by him under a lawful sub-lease from howrah oil mill.5. both these applications were contested by the plaintiff. the application filed on title suit no. 75 of 1981 was dismissed by the learned assistant district judge solely on the ground that in the absence of any compliance with the requirement of section 16(1) of the west bengal premises tenancy act, the sub-lease claimed by the petitioner cannot be a lawful one and, as such, the.....
Judgment:

Anil, K. Sen, J.

1. These are two revision petitions preferred by Beni Madhab Mahrotra carrying on business under the name and style of Mahrotra Industries as the sole proprietor thereof at premises Nos. 33, 34, and 34/1, Benbehari Bose Road, Howrah. Orders challenged are both dt. Dec. 13, 1983, passed by the learned Assistant District Judge, 1st. Court, Howrah, in Title Suit No. 75 of 1981 and Title Suit No. 80 of 1981. By the orders impugned, the learned Assistant District Judge has dismissed the two applications under Order 1 Rule 10 of the C.P.C. preferred by the petitioner respectively in the two suits for being added as party defendant. The applications are being heard on notice to and on contest by the plaintiff who is the same in both the two suits, namely, Howrah Flour Mill. Since the claim of the petitioner for being added as party defendant in the two suits does not stand on identical grounds it would be necessary for us to deal with the two cases separately.

2. Title Suit No. 75 of 1981 was instituted by the plaintiff Howrah Flour Mill against their tenant Howrah Oil Mill Limited for eviction on different grounds including the ground of default in payment of rent and wrongful subletting to Mahrotra Industries. The subject matter in suit was the above three premises but excluding a part thereof. This suit was not being contested by the defendant and at that stage the petitioner filed the application under Order 1 Rule 10 of the Civil P.C. read with S, 151 thereof for being added as a party defendant. The case made out in this application by the petitioner was shortly as follows.

3. The plaintiff and the defendant are two sister concerns, the same set of directors being in charge of them. That by a tripartite agreement entered into between the plaintiff, the defendant and the petitioner dt. Nov. 22, 1971, the petitioner came to occupy a part of the disputed three premises on Dec. 1, 1971, at a monthly rental of Rs. 1,600/- and the balance on a later date at a monthly rental of Rs. 850/-. Since there was interference with peaceful possession of the petitioner on due payment of upto date rents in respect of the three premises, the petitioner instituted an earlier suit against both the plaintiff and the defendant, being Title Suit No. 45 of 1981 for certain reliefs. Therein the petitioner put forward his claim as a lawful sub-lessee and the same is still pending. The petitioner further claimed that the said suit led the plaintiff and the defendant to collude with each other and bring in the present suit on false allegations and by suppressing the exact extent of tenancy in favour of the defendant. The object in reality is to oust the petitioner on the basis of a decree to be obtained against the defendant in such a collusive suit. On these averments, the petitioner claimed that he should be added as a party defendant to the present suit of the plaintiff so that the petitioner can establish his independent right as a sub-lessee as also the collusive nature of the suit instituted by the plaintiff.

4. So far as the other suit is concerned, being Title Suit No. 80 of 1981, that was a suit instituted by Howrah Flour Mill against French Motor Car Company Limited, another sister concern of the plaintiff. This again was a suit for eviction of the defendant on the ground of default. This suit was instituted for recovery of possession in respect of a part of the disputed three premises. In his application for being added as a party defendant, the petitioner claimed that this again was another collusive suit between two concerns controlled by same set of directors and or their associates. It was specifically pleaded that the defendant, French Motor Car Company held no part of the disputed three premises. The suit premises was a part of the settlement made in favour of the petitioner under the tripartite agreement referred to hereinbefore. The suit had been instituted only to obtain a collusive decree to evict the petitioner from a part of the premises held by him under a lawful sub-lease from Howrah Oil Mill.

5. Both these applications were contested by the plaintiff. The application filed on Title Suit No. 75 of 1981 was dismissed by the learned Assistant District Judge solely on the ground that in the absence of any compliance with the requirement of Section 16(1) of the West Bengal Premises Tenancy Act, the sub-lease claimed by the petitioner cannot be a lawful one and, as such, the petitioner has no locus standi to be added as party defendant in the suit. For similar reason the petitioner's application in the other suit, being Title Suit No. 80 of 1981 was dismissed by the learned Assistant District Judge, Howrah. Feeling aggrieved the petitioner has moved this court in revision in both the cases and the revision applications are being contested on behalf of the plaintiff.

6. Having heard the learned counsel for the parties, we are unable to sustain the orders impugned in the present two revisional applications. So far as the application filed in Title Suit No. 80 of 1981 is concerned, it appears to us that the learned Assistant District Judge was quite oblivious of the pleadings of the parties. In that suit, the petitioner was not claiming any right to be added as a party defendant by virtue of any sub-lease from the defendant and hence no question of his complying with Section 16(1) of the West Bengal Premises Tenancy Act arose at all. His case on the other hand was that the defendant was not a lessee under the plaintiff in respect of the suit premises. The suit premises constituted a part of the lease granted to Howrah Oil Mill of which he was in lawful possession by virtue of a sub-lease granted by a third party, namely, Howrah Oil Mill and the suit in question was instituted against the defendant who was falsely set up and who was neither a lessee not in possession of the suit premises. It was again claimed to be a collusive suit so that a decree when obtained was to be used for evicting the petitioner who was in lawful possession thereof. Hence, in order to avoid any future litigation over any such decree it was necessary that the petitioner should be added as a party defendant to establish the falsity of the plaintiffs claim and collusive nature of the suit. To the extent the learned Judge overlooked this aspect by overlooking the necessary pleadings he was certainly acting in irregular exercise of his jurisdiction. He failed to exercise his judicial discretion when he refused the application for addition of party on wholly irrelevant grounds.

7. So far as Title Suit No. 75 of 1981 is concerned, the learned Assistant District Judge failed to appreciate that the petitioner's claim for being added as a party defendant to the suit was based on two grounds, namely, (1) that he being a lawful sub-leasee is a necessary party to such a suit under the provisions of the West Bengal Premises Tenancy Act and (2) in the facts and circumstances made out in the application, the plaintiff and the defendant the two sister concerns managed by the same set of directors were really trying to obtain a collusive decree to evict the petitioner who had been in lawful possession of the disputed premises since 1971, under a tripartite agreement as between the plaintiff, the defendant and the petitioner. While the first ground makes the petitioner a necesaary party, the second ground makes him a proper party. Assuming for a moment that the petitioner had failed to establish the first ground, the learned Assistant District Judge in exercising his judicial discretion could not have left out the second ground from his consideration. To the extent it was so left out, it was a serious irregularity in the matter of exercise of judicial discretion.

A Order 1 Rule 10(2) of the Code authorises the court to add not only a necessary party who has been left out but to add a proper party whose presence would help the court to adjudicate effectually and completely the questions involved in the suit. Therefore, in our view in the two suits it was necessary for the learned Assistant District Judge to consider whether the petitioner is a necessary party or is a proper party who should be brought on record for the court to adjudicate effectually and completely the questions involved in the suit. It cannot be disputed that under the provision of Section 13(2) of the West Bengal Premises Tenancy Act, a sub-lessee who had otherwise complied with the requirements of the said Act, and as such, is a lawful sub-lessee is a necessary party to a suit for eviction against the lessee. In Title Suit No. 75 of 1981, the petitioner had pleaded that he was inducted as a sub-lessee upon a tripartite agreement between the plaintiff, the defendant and the petitioner. Such agreement constitutes the necessary consent contemplated by the West Bengal Premises Tenancy Act In his application under Order 1 Rule 10 of the Code, he had further pleaded that notice of such subtenancy was duly given to the plaintiff. Though there is no specific details about such notice, there is no specific denial of the said claim in the objection to the said application under Order 1 Rule 10 of the Code. Moreover according to Mr. Mukherji, the sub-lease having been created by a tripartite agreement to which the plaintiff is a party, the question of given a notice under Section 16(1) of the Act may not arise at all. These facts make out a prima facie cases which cannot be thrown out as frivolous or lacking in bona fides. How far the absence of a consent in the form prescribed would invalidate the sub-lease and how far otherwise the petitioner would be able to establish his claim with regard to a lawful sub-tenancy, would be a matter of adjudication in the suit after he is added as a party. The prima facie case that he made out, in our opinion, was sufficient to sustain his prayer to be added as party defendant to Title Suit No. 75 of 1981, Reference may be made to the decision of the Supreme Court in the case of South Asia Industries Pvt. Ltd. v. Sarup Singh : [1965]3SCR829 .

9. That apart in both the cases, the specific plea raised by the petitioner is that there is a collusion between the plaintiff and the respective defendants. While extent of the tenancy in favour of the defendant in Title Suit No. 75 of 1981 had been challenged, in Title Suit No. 80 of 1981, the alleged tenancy right of the defendant had been challenged. The petitioner claims that the real object of the plaintiff is to arm himself with a decree which would enable him to oust the petitioner from his existing possession of the suit property of which he had be in possession on lawful claim of title since 1971. With that object in view the plaintiff and the defendants in the two suits who are none but sister concerns, controlled by same and/or mutually interested persons, have instituted the two suits so that it is necessary for the petitioner to be added as party defendant to establish the same in the suit itself instead of instituting a fresh suit after the decree for setting aside the decrees on such grounds. Though a decree against a lessee is otherwise binding upon a sub-lessee save and except where the sub-lessee has got independent right of his own, yet such a decree must not be a collusive one. Reference may by made to the decision of this court in the case of Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarty 49 Cal WN 133 : (AIR 1945 Cal 283). As a matter of fact, in one of the suits the petitioner was not claiming right as a sub-lessee but was claiming an independent right, his further case being that such independent right to possess is being sought to be affected by a decree to be obtained in a collusive suit based on false pleadings. These circumstances in our view certainly make out a case of the petitioner being a proper party in the two suits.

10. Patanjali Sashtri, J. in the case of Vanjiappa v. Annamalai AIR 1940 Mad 69 held that a literal interpretation should be put upon the language of Order 1 Rule 10(2) of the Code. Effectual and complete adjudication of the dispute is not limited to the parties to the suit only. It has been judicially recognised by now, that the court cannot shut its eyes to claims bena fide put forward by third parties to the subject matter in suit which if gone into would help the; court in making an effectual and complete adjudication of the dispute over the subject matter though not in a manner raised by the parties to the suit We may refer to the following observations of Turner, C. J. and Muthuswami Iyer, J., in the case of Vydiananda v. Sitarama, (1982) ILR 5 Mad 52:

'Is it meant by these words that a person not originally impleaded is to be made a party only if the questions raised in the suit can not otherwise be completely and effectually determined between the parties to the suit? Or is it meant completely and effectually determined so that they shall not be in raised in that or in any other suit between the parties to the suit or any of them and third parties? To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely 'between the parties to the suit' and there can be a few, if any questions, which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will as between the parties to the suit not be final. On the other hand, the interpretation warranted by the terms would enable the court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them.'

There being overwhelming authorities in favour of such a view, we find no hesitation in concluding that on the principles so laid down, the petitioner in these two cases certainly made out a case which would entitle him to be added as a party defendant at least as a proper party.

11. In either view, therefore, the petitioner's prayer for being added as party defendant should have been allowed. The impugned orders are, therefore, set aside and we allow the applications under Order 1 Rule 10 of the Code filed by the petitioner in the two respective suits. We, however, make it clear that nothing said in this order of ours shall be considered as expression of any opinion on the merits of the claim put forward by the petitioner in the two suits. The revision applications are thus allowed.

Prabir Kumar Majumdar, J.

12. I agree.


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