SUBHENDU GUPTA Vs. CALCUTTA VYAPAR PRATISTHAN LTD

JUDGEMENT

(1.) The present appeal is directed against Order No. 61, dated 8th November, 1994, passed by Sri S. Bose, learned Judge, City Civil Court, Calcutta, in Misc. Case No. 1696 of 1994, whereby an application preferred by the appellants under Order 21, Rule 101 of the Code of Civil Procedure, inter alia, praying for adjudication of the dispute regarding right, title, interest and possession of the room in occupation of the petitioners upon their addition as parties in the Misc. No. 103 of 1992 and for restraining the decree holder from executing the decree passed in Ejectment suit No. 524 of 1972 against respondent No. 3, had been rejected.

(2.) Ejectment suit No. 524 of 1972 had been instituted by respondents Nos. 1 & 2 against respondent No. 3 for a decree for vacant and khas possession of the disputed shop room at 3, Russel Street, Calcutta, inter alia, upon allegation of termination of the respondent No. 3's tenancy on the grounds of default, illegal additions and alterations and sub-leting, assignment and transfer without the consent of plaintiff No. 1 long after commencement of West Bengal Premises Tenancy Act, 1956. In the said suit the defendant's defence, inter alia, was that there was no sub-leting, assignment and/or transfer without the consent of the plaintiff as alleged and that the business of hair dresser and hair cutting saloon was being run by the constituted Attorney of the defendant under the supervision of the defendant's daughter and defendant was to return to India shortly. The said suit stood decreed, inter alia, upon acceptance of the ground, made out on behalf of the plaintiff, regarding unlawful transfer by the defendant in favour of one M/s. K.C. Ardesher and Co. The appeal before this Court as also the special leave petition before the Hon'ble Supreme Court proved abortive. The said decree was put into execution in Ejectment execution case No. 41 of 1985, and ultimately writ of delivery of possession was issued on 26th April, 1991. Since there was apprehended breach of peace, on behalf of the decree holder, an application under Order 21, Rule 97 of the Code of Civil Procedure, read with Section 151, had been filed on 5th February, 1992, which gave rise to the Misc. Case No. 103 of 1992. The Bailiff's report indicated that the appellants, as two of the resistors, refused to vacate the shop room and offered strong resistance giving rise to apprehension for serious breach of peace. The application for Police help had been objected to in writing by the alleged Attorney of the judgment debtor namely M/s. K.C. Ardesher and Co. In the said execution case the present appellants also filed an application under Order 21, Rule 101 read with Section 151 of the Code of Civil Procedure as stated above, inter alia, contending that they were sub-tenants for more than 30-years under the judgment debtor with the knowledge and consent of the respondents' predecessor-in-interest and as such were entitled to be heard, particularly, when they were not bound by the decree, where they were not impleaded as parties. In the objection, the decree holders disputed the truth and correctness of the assertions, made by the appellants, in their said application.

(3.) The learned Chief Judge, City Civil Court, Calcutta, by the impugned order, inter alia, found that :-