MANOHAR KUMAR KANKARIA Vs. SK MD SHAWKAT

JUDGEMENT

(1.) All the aforesaid three applications have been taken out by the respective applicants viz. Banshi Badan Dalai (G.A. No. 934 of 2006) and Bansi & Hari Sankar (G.A. No. 935 of 2006} carrying on business under the name and style of "Studio Fine Arts", Ranjit Bose of Rup Chakra (G.A. No. 933 of 2006). The applicants have come with these three applications to resist the execution of the decree passed in the aforesaid suit, for delivery of possession of the suit premises. These three persons are not the parties to the suit. The plaintiff decree holder obtained the decree in a suit for eviction against the aforesaid defendants on the application under Chapter XIIIA taken out by the plaintiff/petitioner. The said application under Chapter XIIIA was contested by one of the defendants and his contest failed. Thereafter the decree has been put into execution. The Receiver was appointed in and over the decreetal property for effective execution of the decree. In terms of the Court's order the Receiver put up a notice for vacating all the occupants within a certain time. The Court also allowed the respective occupant or occupants to come to this Court and to establish their right to remain in possession of the suit premises. Pursuant to this direction and order the aforesaid three applicants came up to this Court. In their respective applications the plea was taken by them that all these persons were necessary parties and they should have been impleaded as party defendants in the suit and therefore, the decree was not binding upon them. Regarding their right, title, interest in the property it is stated in the affidavit that the tenancy was initially created in respect of their respective area of occupation of their decreetal premises in 1974-75 with the consent of Ajoyendra Krishna Deb, since deceased, one of the head lessors. They were actually inducted by the then lessees of the said premises. Therefore, the present owner as succerssor-in-interest is bound by the aforesaid assent for creation of tenancy by the lessees. The alternative case has been made out that even after expiry of the lease the lessees concerned paid rent and it was accepted by the plaintiffs and thereby new relationship has been created. With the acceptance of rent and allowing them to continue in possession there is holding over and as such these applicants have become lawful sub tenants of the said premises. So they should have been made parties.

(2.) Mr. Ranjan Bachawat, learned Advocate appearing for one of such applicants has advanced argument. After completion of filing of affidavits a supplementary affidavit has been filed enclosing a document showing that one of the defendants had died before the decree was passed. Therefore, the decree is nullity. In course of hearing it was detected that the said defendant (assuming the certificate is valid one) died after hearing of the application had been concluded and before pronouncement of the judgment and decree. In view of the aforesaid factual position Mr. Ranjan Bachawat and his supporting group of learned Advocates have not pressed the point of nullity as they have conceded that by virtue of provision of Order 22, Rule 6 of the Code of Civil Procedure the decree cannot be nullity.

(3.) Mr. Bachawat has taken me through the rent receipts issued by one Sk. Md. Shawkat and Sahadat Ali in support of creation of tenancy. He contends that by virtue of holding over his clients have become lawful sub tenants and so they are necessary parties and they are kept in dark absolutely. There has been no serious challenge in the application under Chapter XIIIA and the defendants in collusion with plaintiff fraudulently allowed the decree to be passed without any contest in real sense and without telling the Court that there has been holding over. The theory of expiry of lease in this case does not and cannot arise. Admittedly, no notice under Section 106 of the Transfer of Property Act was given and without giving such notice there cannot be any lawful termination of the lease and therefore the suit itself was bad. This execution proceedings is not due and lawful process of law by which his clients should be evicted. He further contends whether his clients are lawful sub-tenants or not as contended by the decree holder cannot be decided by the Civil Court or for that matter this Court in the execution proceedings also and for this purpose the Controller appointed under the provision of West Bengal Premises Tenancy Act, 1997 is empowered to decide this matter. When the lease is alleged to have expired this Act did not come into operation but at the time of the filing of the present suit this Act came into force and by virtue of Section 45 the earlier Act i.e. West Bengal Premises Tenancy Act, 1956 this Act stood repealed and so there is no application of the same.