1. An application made by the sub-tenant (hereafter the petitioner) praying for its addition as party defendant in Ejectment Suit No.165 of 2006 instituted by the landlord (hereafter the opposite party no.1) against the tenant (hereafter the opposite party no.2) has been rejected by order dated September 20, 2010 of the trial Court. Propriety of the said order is questioned in this application under Article 227 of the Constitution of India dated November 29, 2010.
2. Mr. Mukherjee, learned senior counsel representing the petitioner contended that from the materials on record it is clear that there is collusion between the opposite parties 1 and 2 and, therefore, the trial Court erred in law in rejecting the application for addition of party. He invited the Courts attention to an application filed by the opposite party no.1 under Order XII Rule 6 of the Code of Civil Procedure (hereafter the Code) read with Section 151 thereof. According to him, a judgment and decree on admission for recovery of vacant and peaceful khas possession of the suit property had been prayed for by the opposite party no.1 by referring to the pleading contained in the written statement where the opposite party no.2 had admitted creation of subtenancy. He, therefore, contended that the opposite party no.2 is virtually giving a walk-over to the opposite party no.1 and that this is a fit and proper case where the petitioner ought to be allowed to contest the proceedings of the ejectment suit.
3. Next, it was contended by him that the opposite party no.2 had put the petitioner in actual physical possession of the suit property in the year 1986 with the full knowledge of the opposite party no.1 and such fact is borne out by the agreement between the opposite party no.2 and the petitioner dated December 1, 2000 in respect of the property being Flat No.11 situated on the 4th floor of 4, Lord Sinha Road, Kolkata 700071 together with two garages in the ground floor. It is therefore clear from the materials on record that the petitioner is in the process of surrendering its tenancy to the opposite party no.1 by not effectively contesting the suit, and the presence of the petitioner is absolutely necessary for effective adjudication of the suit.
4. In support of his contention that the application ought to have been allowed, Mr. Mukherjee relied on the decisions reported in AIR 1985 Cal 172 (Beni Madhav Mahrotra vs. Flour Miills Ltd.), 2005 (3) Cal LT 101 HC (Graphite India Ltd. vs. Smt. Bandana Bose & anr.) and AIR 2002 Cal 108 (Mehta Suraya and etc. vs. United Investment Corporation).
5. He, accordingly, prayed that the order impugned be set aside and that a direction to implead the petitioner as additional defendant in the suit be made.
6. The application has been opposed by Mr. Sengupta, learned senior counsel for the opposite party no.1. He referred to the provisions of the West Bengal Premises Tenancy Act, 1956 as well as the Act of 1997 to contend that no notice of subletting as is required to be given in terms of Section 16 of the Act of 1956 or Section 26 of the 1997 Act was ever given to the opposite party no.1. The said statutory provisions require a positive act and there is no averment in the application for addition of party filed by the petitioner to the effect that the opposite party no.1 was put on notice in respect of creation of sub-tenancy in its favour.
7. It was further contended by Mr. Sengupta that the trial Court was right in holding that the petitioner, in the absence of any clinching evidence to show that notice of sub-tenancy was given to the opposite party no.1, had no right to be imp leaded as party defendant.
8. In support of his submission that a sub-tenant has no right to be imp leaded as defendant in a suit between a landlord and its tenant, the decisions reported in AIR 1964 SC 1889 [Rupchand Gupta vs. Raghuvanshi (Private) Ltd. & anr.], AIR 2004 SC 4577 (Balavant N. Viswamitra vs. Yadav Sadashiv Mule), AIR 2000 Calcutta 219 (M/s. Stockman Boarding House vs. L.I.C. of India) and 2009 (1) CLJ 191 (Dr. Kayum Golder vs. M.H. Md. Ally & ors.) were relied on.
9. He, therefore, prayed for dismissal of the revision application.
10. Mr. Mukherjee in reply cited the Bench decision reported in 1981 (1) CLJ 339 (Debabrata Mukherjee vs. Kalyan Kumar Roy) for the proposition that the Act of 1956 is a social legislation enacted primarily for the welfare of the tenants and does not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him.
11. I have heard learned senior counsel for the parties. The only point that requires an answer is whether the petitioner as sub-tenant has any legal right to claim that it should be allowed to participate in the proceedings of the ejectment suit as an additional defendant.
12. I may place on record that although the order impugned was passed by the trial Court in the absence of the learned advocate for the petitioner, the revision application has been heard on merits by me without considering the need to remit the matter back to the trial Court for fresh hearing on the technical ground that the impugned order was passed ex-parte by the trial Court.
13. I shall first deal with the contention of Mr. Mukherjee that the opposite party no.1 had due knowledge of creation of sub-tenancy in respect of the suit property. This contention is advanced by referring to the last but one clause at page 2 of the agreement dated December 1, 2000. The agreement records that although the suit property was sublet by the opposite party no.2 to the petitioner in 1986, no formal agreement for tenancy was entered into between the parties at the time of granting the sub-tenancy and that since the parties deemed it expedient to record the terms and conditions in writing, the agreement was subsequently entered into. As it is, the agreement is between a tenant and a subtenant. The opposite party no.1 is not a party thereto. Whatever terms the parties to the said agreement might have inserted therein behind the back of the opposite party no.1 would not bind it. It appears from the third paragraph at page 2 of the agreement that the opposite party no.2 had represented to the petitioner that the flat in question was let out by the opposite party no.1 to the opposite party no.2 with right to sublet. The opposite party no.1 has never admitted the so-called representation, and any of the terms and conditions mentioned in the agreement is thus not binding on it and cannot be relied on against it. The contention being not well-conceived is overruled.
14. Now, the issue of alleged collusion between the parties in the suit may be considered. Although the petitioner has alleged collusion between the opposite parties 1 and 2, I do not see reason to consider the same as sufficient for directing imp leadment of the petitioner as a party defendant in the suit. As it appears from the written statement filed by the opposite party no.2, there is no reason to believe that the suit is not being seriously contested by it. In fact, a point has been taken that creation of a purported sub-tenancy by the earlier management of the opposite party no.2 is illegal and unauthorized, and the same is not valid or binding on it. In view of such a stand, it is difficult for me to return a finding of fact that a virtual walk-over by the opposite party no.2 is in the offing, as contended by Mr. Mukherjee. The application under Order XII Rule 6 of the Code filed by the opposite party no.1 by itself, without anything more, does not warrant a ruling in favour of the petitioner particularly in view of the defence raised in the written statement. This contention has not impressed me and, accordingly, stands overruled.
15. Next, the petitioner admittedly was inducted in the suit property in 1986. There is no contemporaneous document available on record to demonstrate that either the opposite party no.1 consented to induction of the petitioner in the suit property by the opposite party no.2 or that after such induction the opposite party no.2 or the petitioner had notified such induction to the opposite party no.1. Section 14 of the Act of 1956 imposes a restriction on subletting. It ordains that after commencement of the Act of 1956, a tenant without the previous consent in writing of the landlord shall not sublet any premises held by him as a tenant either in whole or in part or transfer or assign his right in the tenancy or in any part thereof. The opposite party no.2 by inducting the petitioner in the suit property without consent of the opposite party no.1 in writing contravened the provisions of Section 14. In the absence of any consent given by the opposite party no.1 in writing, question of applicability of the provision of Section 16, on facts and in the circumstances of the present case, does not arise.
16. The decision in Rupchand Gupta (supra) relied on by Mr. Sengupta is apt and paragraph 12 thereof is quoted hereinbelow :
12. Taking the last action first, viz., Raghuvanshis omission to imp lead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not imp lead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.
17. Mr. Sengupta is also right in his contention that there is no privet of contract between the opposite party no.1 and the petitioner and, therefore, on the authority of the decision in Balavant N. Viswamitra (supra) it has to be held that the petitioner is not a necessary party to the proceedings and it was not necessary for the opposite party no.1 to imp lead the petitioner as a defendant in the suit.
18. The other two decisions viz. the Bench decision in M/s. Stockman Boarding House (supra) and decision of a learned single Judge in Dr. Kayum Golder (supra) also reiterate the law that if a sub-tenancy is not created according to law, the sub-tenant has no right to claim that it should be impleaded as defendant in the suit.
19. Now I proceed to deal with the decisions cited by Mr. Mukherjee.
20. In Beni Madhav (supra), the claim of the petitioner for being added as a party defendant in the suit was based on two grounds, viz.
(i) that he is a lawful sub-lessee, being in lawful possession of the disputed premises since 1971 under a tripartite agreement as between the plaintiff, the defendant and the petitioner and that such agreement constitutes the necessary consent contemplated by the Act of 1956 and
(ii) that the plaintiff and the defendant being two sister concerns managed by the same set of directors were really trying to obtain a collusive decree to evict the petitioner. The Bench recorded a finding that in his application under Order 1 Rule 10 of the Code, the petitioner had pleaded that notice of his sub-tenancy was duly given to the plaintiff and that although specific details of such notice were absent, there was no specific denial of the said claim in the objection filed by the plaintiff to the said application under Order I Rule 10 of the Code. The contention raised on behalf of the petitioner that the sub-lease had been created by a tripartite agreement to which the plaintiff was a party, in the opinion of the Bench, made out a prima facie case which could not be thrown out as frivolous or lacking in bonafides and such prima facie case was sufficient to sustain the prayer for addition.
21. The decision is clearly distinguishable in view of the finding recorded above that the sub-tenancy was not created according to law and also that there is no material to substantiate that the opposite party no.1 was notified of the same.
22. The decision in Debabrata Mukherjee (supra) instead of coming to the aid of the petitioner provides a complete answer to its claim that it is not entitled to be added as a defendant in the suit. The Bench upon consideration of Section 14(1) of the 1956 Act held that the said provision did not expressly lay down that a subletting in violation thereof shall create no legal relationship between the tenant of the first degree and a sub-tenant. However, it was opined that the effect of Section 14(1) is that subletting after the commencement of the Act of 1956 without the previous consent in writing of the superior landlord is not binding on the superior landlord and that Section 13(1)(a) gives a right to the landlord to recover possession by evicting his tenant who had sublet, transferred or assigned the whole or any part of the premises held by him. The observation that demolishes the claim of the petitioner is that when a sub-tenancy is created after the commencement of the 1956 Act without prior consent of the superior landlord, such a landlord is not required to make such a sub-tenant a defendant in the suit for recovery of possession filed against his tenant and after an ejectment decree is passed against the tenant of the first degree, it would be binding upon such sub-tenant meaning thereby that a sub-tenant has no independent legal status and is not entitled to the benefits of protection against eviction. It has further been held therein that in the absence of any privet of contract, the unauthorized sub tenancy is not binding on the superior landlord who can evict such a sub-tenant in execution of a decree for eviction obtained against the tenant of the first degree.
23. The decision in Graphite India Ltd. (supra) is also distinguishable. Paragraph 30 of the decision makes it clear that the tenancy agreement under consideration recognized the tenants right of subletting, assignment and parting with possession to any of its groups or sister concerns without the written consent of the landlady and that a finding of fact was recorded to the effect that
the said authorization 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.
It was further recorded that all these facts coupled with allegation of fraud and collusion between the parties no doubt shows that the petitioner had some right over the suit property and the extent of such right could only be determined in the suit for which the presence of the petitioner was considered necessary for adjudication of the dispute involved in the suit. Paragraph 33 further makes it clear that the petitioner had not come with a prayer for his addition on the basis of his claim of unrecognized tenancy. That is not the case here and therefore the subtenant by virtue of the said decision can derive no benefit.
24. In Graphite India Ltd. (supra), the learned Judge considered the decision of the Supreme Court reported in AIR 2001 SC 2849 (Biswanath Poddar vs. 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 imp lead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. That is exactly the case here and based thereon the petitioner must be declined relief.
25. The decision in Mehta Suraya (supra) has laid down situations when a decree for eviction against the lessee/tenant would not be binding on the sub-lessee/sub-tenant. One of such situations is when the sub-13 lessee/sub-tenant is able to prove collusion between the lesser-lessee and/or the landlord-tenant. As ruled above, collusion between the opposite parties 1 and 2 could not be demonstrated and hence the said decision is also of no avail.
26. On consideration of the submissions advanced and perusal of the cited decisions and giving due regard to the provisions of law in respect of creation of sub-tenancy, I am of the clear view that the order under challenge does not call for any interference. This application stands dismissed, without costs.
27. However, it is made clear that no observations in this order shall influence the trial Court in deciding the list before it. Urgent Photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.