GOPENDRA NATH GHOSH Vs. NANDA GOPAL BISWAS

JUDGEMENT

(1.) Challenge in this revisional application is the order passed by learned Chief Judge, Small Causes Court at Calcutta dated 30th July, 2005 in SCC suit no. 462 of 2004 whereby and where under learned Judge has allowed the application under Sec. 41 of the Presidency Small Causes Court Act and directed the petitioner/defendant to vacate the concerned premises in favour of the applicant/opposite party within 3 months from the date of order.

(2.) Being aggrieved by and dissatisfied with such order this application under Art. 227 of the Constitution of India has been filed by the defendant/petitioner on the ground that learned trial Judge has failed to take note of the fact that the actual tenant of the premises was not made a party in such proceeding. The further case of the petitioner is that in fact the petitioner was inducted as a sub-tenant in the suit premises by one Kshitishchandra Roy and the petitioner used to pay some rent to Kshitishchandra Roy. Kshitishchandra Roy was inducted as a tenant in the suit premises. The petitioner in accordance with Sec. 42 of Presidency Small Causes Court Act had filed show cause stating inter-alia that a proceeding under Sec. 26 of West Bengal Premises Tenancy Act has been going on in the Court of Rent Controller in pursuance of an application of the petitioner for payment of rent to the present applicant/opposite party in respect of the suit premises. Therefore, the petitioner has shown sufficient causes by filing show cause before the learned trial Judge and learned trial Judge ought to have rejected such application of the opposite party simply on the basis of such show cause of the petitioner. Lastly learned trial Judge could not appreciate the true purport and legal principles evolved in the decision reported in AIR 1925 Bombay 415 (Peruri Suryanarayanan Vs. W.L. Narsimha).

(3.) Learned advocate Mr. Haradhan Banerjee appearing on behalf of the petitioner vehemently contended that the entire case of the opposite party under Sec. 41 of Presidency Small Causes Court Act ought to have been rejected by the trial Judge simply on the ground that Kshitishchandra Roy (erstwhile tenant in the suit premises) was not made a party in such proceeding. Mr. Banerjee further contended that in the decision reported in AIR 1925 Bombay, 415 (supra) it is evident that the tenant was also made a party in such proceeding wherein the occupier was directed to vacate the suit premises in the proceeding under Sec. 41 of Presidency Small Causes Court's Act.