MANIK MAJUMDAR Vs. BHUPENDRA KUMAR BAKSI

JUDGEMENT

(1.) The plaintiffs filed Ejectment Suit No.57/89 in the 5th Bench of the City Civil Court, Calcutta, for eviction of their tenant. One Manik Majumder filed a petition under Order 1 Rule 10(2) Code of Civil Procedure for being impleaded in the suit. His Contention is that he is a sub-tenant in respect of the disputed premises. According to him, he was inducted as a sub-tenant by the lawful tenant Rabindra Bhowmick in July 1982 with the knowledge, consent and approval of the then landlady Satyabati Dasi. Subsequently, the tenant Rabindra Bhowmick left the suit room and shifted elsewhere. The petitioner regularly paid rent in respect of the suit room to the landlady Satyabati Dasi receipts issued in the name of the tenant Rabindra Bhowmick. The opposite parties plaintiffs purchased the suit premises from Satyabati Dasi July 1987. They gained over the tenant and filed the instant ejectment suit for recovery of possession of the disputed property. The petitioner is, therefore, a lawful sub-tenant in respect of the disputed premises knowledge, consent and approval of the landlord. Since the tenant contesting the proceeding, the petitioner should be impleaded in the of justice so that he can prove his lawful sub-tenancy and protect his own rights. By the impugned order No.11 dated 23.8.89 the ld. Judge, 5th Bench, City Civil Court, Calcutta, rejected the petition for addition petitioner in Ejectment Suit No.57 /89.

(2.) It is contended on behalf of the petitioner that the court has absolute discretion to impleaded the petitioner as a party. Reliance is upon a decision in Durgabala vs. Acharya Probodhananda (AIF NCC, 204 (Cal) to urge that it is not entirely the choice of the plaintiff as to whether the petitioner would be impleaded as a party. The discretion is left with the court. Dr. Mondal argues that the petitioner is per party in the proceeding. In support of his contention he relies upon a decision in M/s. Importers & Manufacturers Ltd. vs. Pheroze Framroze (AIR 1953 SC 73). In the said case it was held that a sub-tenant, though not a necessary party, is a proper party to the proceeding and his joinder does not alter the nature of the suit. Reference .is also made to a decision in South Asia Industries Pvt. Ltd. vs. S. Saroop Singh (AIR 196 346) in order to urge that the sub-tenant is entitled to oppose eviction. He can say that he is a lawful sub-tenant. A single Judge of this in Bholanath Chatterjee vs. Somendra Ch. Nandi (AIR 1971 Cal., 425) held that a sub-lessee under the lessor is a necessary party to a proceeding for eviction by the head lessor. Dr. Mondal lastly relies upon a decision A. S. Sulochana vs. C. Dharmalingam (AIR 1987 SC 242) to substantiate his argument that since he is in possession of the property as a sub-tenant since long without any objection of the landlord, the sub-tenancy is lawful and he should be impleaded as a party to the proceeding. It is candidly conceded by Dr. Mondal that he cannot possibly urge that his client is a necessary party to the proceeding. Nevertheless, he can very well say that his client is a proper party to the proceeding, it is contended. His client should not be driven to another litigation to substantiate his right. In the instant case his right should be adjudicated by giving him an opportunity by impleading him in the proceeding.

(3.) In my opinion, the whole question boils down to a single point viz, whether the petitioner can claim to be impleaded against the will of the plaintiff. Section 13(2) of the West Bengal Premises Tenancy Act (here-matter referred to as the Act) lays down as to when a sub-tenant should be impleaded in a proceeding for eviction against his tenant. The sub-tenant as a matter of right can claim that he should be impleaded provided he has given notice of his sub-tenancy to the landlord. In my opinion, the provision under section 16(1) and (2) of the Act is mandatory. If the sub-tenant has not given mandatory notice under section 16 of the Act, he cannot claim to be impleaded as a matter of right. If the statutory obligation cast upon him under section 16 of the Act has not been discharged, he cannot seek protection in a suit for eviction against the tenant by having an opportunity to contest a proceeding for eviction against the tenant. Dr. Mondal concedes that his client has not given notice under section 16, of the Act. The opposite parties rely upon a single Bench decision of this Court in R. N. Aich Roy vs. M/s. Hanuman Estate (F) Ltd. (AIR 1971 Cal., 468). In paragraph 8 of the judgment the learned Judge found that whether the sub-tenant -has to be made a party in the suit for ejectment or not, is provided in section 13(2) of the Act. The plain meaning of the provision of section 13(2) of the Act leaves no manner {)f doubt that the landlord is not bound to make the sub-tenant party to the suit unless the sub-tenant has served his landlord with a notice under section 16(2) of the Act. In the decisions referred to by Dr. Mondal there was no occasion to consider any provision corresponding to section 13(2) and section 16 of the Act. While not discharging the statutory obligation under section 16 of the Act, the petitioner cannot come and say that he should be impleaded in a proceeding against the tenant. In that event, section 13(2) of the Act becomes meaningless. This Court had occasion to consider the scope of section 16 of the Act in Hiranmoyee Devi vs. Maharaja Somendra Chandra (1982(1) CL. 229). It was held that the legislature made it incumbent upon the sub-tenants to give notice of their sub-tenancies in order to be entitled to claim protection thereunder. A Division Bench also considered the scope of section 13(3) and section 16 of the Act in Lakshmi Rani Das vs. Hart. Sankar Dutta (1982(1) CLJ 350). It was held there that if no notice had been- given, the sub-tenant will be bound under section 13(3) of the Act by a decree against the tenant of the first decree. Therefore, the petitioner cannot maintain his petition for being impleaded in a proceeding against a tenant for protection.