KHUSHI MOHAN SAHA Vs. MINOR SUBHAS CHANDRA SAHA

JUDGEMENT

(1.) This is a Second Miscellaneous Appeal on behalf of the Objector No. 2 in a petition under Section 144 of the Code of Civil Procedure. The facts as they may be relevant for the present purpose are as follows:-

(2.) Sakhi Charan Saha, a tenant of the premises in suit instituted an Ejectment Suit No. 1883/54 against the sub-tenant, Subhas Chandra Saha and got an ex parte decree on the 23rd September 1954. The said tenant, Sakhi Charan obtained possession of the said premises with police help on the 12th April, 1955 in execution of the said decree for ejectment and two days later, he let out the said premises to Khushi Mohan Saha, the appellant before us. On the 25th April, 1955, Subhas, the former sub-tenant instituted proceedings under Order 9, Rule 13 of the C.P. Code for setting aside the ex-parte decree in the aforesaid ejectment suit. On 1st December, 1955 the application under Order 9 Rule 13 of the Code of Civil Procedure was allowed and the ex parte decree was set aside and the suit for ejectment was restored to file. On the 8th December, 1955 the former sub-tenant, Subhas field an application under Section 144 of the Code of Civil Procedure for restitution against Sakhi who obtained a decree for ejectment and which was later on set aside. On the 27th February, 1956 Khushi Mohan, the new sub-tenant, was added a party to the proceeding under Section 144 of the Code of Civil Procedure and thereafter Khushi Mohan filed objection. On the 22nd April, 1957, the Rent Controller passed an order under Section 16(3) of the West Bengal Premises Tenancy Act at the instance of Khushi Mohan, the new sub-tenant declaring him to be the direct tenant of the landlord, Anadi; Khushi, Anadi and Sakhi Charan were parties to the said proceeding under Section 16(3); but the former sub-tenant, Subhas Chandra was no party to that proceeding. On the 2nd August, 1957 Sakhi Charan's suit for ejectment was dismissed for non-prosecution. Thereafter, on 3rd September 1957, the application under Section 144 of the Code of Civil Procedure came up for consideration before the learned Judge, 3rd Court, Small Causes Court, Calcutta.

(3.) The learned Judge stated that Khushi Mohan Saha was admittedly inducted as a sub-tenant on the 14th April, 1955 after the tenant got delivery of possession on the 12th April, 1955. The learned Judge held that the sub-tenant was not a legal representative of the tenant and it was doubtful whether he was a representative at all. The learned Judge referred to a decision in (1) 58 Cal 1070 and found Khushi Mohan to be a stranger to the decree and found that he acquired valuable rights as a sub-tenant. Also he acquired valuable rights by an Order of the Rent Controller by which he was up-graded to the status of a tenant. The learned Judge thought that the principle of restitution was based on the principles of natural justice and that this principle must be relaxed when it conflicts with other rules of equity. Such statement of law appears to me to be rather curious. However, on the finding that Khushi Mohan Saha was an innocent third party the petition was dismissed. The appeal Court however took a directly contradictory view. According to the Appeal Court, the most important question was whether Khushi Mohan Saha was a bonafide sub-tenant or was a mere name-lender to Sakhi Charan Saha and it found that the sub-lease of Khushi Mohan Saha was not proved nor the order of the Rent Controller by which Khushi Mohan Saha was alleged to have become direct tenant was bonafide and thereafter the appellate Court found that Khushi Mohan Saha was not a sub-tenant at all. Therefore, it allowed the petition. Against that order Khushi Mohan Saha the new sub-tenant has filed the present appeal.