MADAN MOHAN BHUINYA & ANR Vs. DEBASIS BANERJEE

JUDGEMENT

(1.) This application is directed against the order no.39 dated March 23, 2010 and order no.41 dated March 31, 2010 passed in Misc. case No.252 of 2008 arising out of an Ejectment Execution Case No.166 of 2007 which arose out of an Ejectment Suit No.5 of 2003 before the learned Judge, Third Bench, Small Causes Court, Calcutta.

(2.) The short fact is that the opposite party instituted the ejectment suit no.5 of 2003 against one Smt. Shyama Bagchi, a tenant, on the ground of sub-letting and reasonable requirement in respect of the premises, as described in the schedule of the 2 plaint. That suit was decreed by the learned Trial Judge. An appeal being Title Appeal No.95 of 2007 was preferred before the City Civil Court, Calcutta by the tenant. Being aggrieved, the tenant preferred a second appeal which is still pending. In the meantime, the execution case was filed and in that case an application under Order 21 Rule 101 of the C.P.C. was filed by the petitioners herein stating, inter alia, that they are the legal heirs or friends of the original tenant, namely, Smt. Shyama Bagchi and that they were inducted as sub-tenant in respect of the premises in suit. They have been possessing the same for the last 20 years. They are, therefore, the necessary parties to the suit but the plaintiff did not include them as defendants in the suit. No opportunity was given to them to defendant their case. So, the petitioners filed an application under Order 21 Rule 101 of the C.P.C. That application was rejected by the impugned order. Being aggrieved, the petitioners have preferred this application.

(3.) Now, the point for consideration is whether the impugned order can be sustained.