BIBHUTI BHUSAN DUTTA Vs. ARCHANA MISHRA

JUDGEMENT

(1.) This appeal is directed against an order which is a deemed decree in connection with Misc. Case No.1610 of 1995. The appellants filed an application under Order 21 Rule 99 of the Code of Civil Procedure to resist an ex parte decree obtained against one Smt. Archana Mishra. The facts are interesting.

(2.) The relationship of the plaintiff and the defendant is of husband and wife. The wife appears to be sole proprietor of a business carried on under the name and style "J.M. Industries" since 1973-74. The husband filed a suit against the wife on the ground of creation of sub- tenancy by the wife in favour of Bibhuti Bhusan Dutta and Smt. Sumita Dutta and also on the ground of reasonable requirement. Late Dr. Samarendra Nath Mishra was the husband of the defendant Smt. Archana Mishra. The plaintiff did not say that the relationship between the parties were acrimonious. However, the plaintiff decided to evict his wife from the scheduled suit premises on the ground of sub-letting and reasonable requirement. It is important to note that in a suit for reasonable requirement ordinarily the plaintiff puts forward the need of his families as the basis of his claim for reasonable requirement. However, in the event it is found that a lawful tenant was inducted with the consent of the plaintiff then without impleading such lawful tenant, the suit for reasonable requirement cannot succeed. We have advisedly said so on the basis of the evidence which is likely to unfurl in course of our judgment. The husband as plaintiff obtained an ex parte decree against the wife/defendant. Now at the stage of enforcement of the said ex parte decree, Bibhuti Bhusan Dutta and Smt. Sumita Dutta filed an application under Order 21 Rule 99 of the Code of Civil Procedure on the ground that they were lawfully inducted as tenant by Smt. Archana. In the proceeding, Smt. Archana did not depose. However, Souvik Mishra, one of the sons of the deceased plaintiff deposed and he had stated that his mother has inducted the appellants as tenant without the consent of his father. Dr. Samarendra Nath Mishra appeared in the said proceeding and deposed. Dr. Samarendra Nath Mishra reiterated that he did not authorize his wife to induct the appellants, however, he could not offer any satisfactory explanation for the numerous rent receipts issued by or on behalf of JM Industries in favour of the appellants countersigned by him. He did not deny and obviously he could not deny the signature on the several rent receipts duly signed by him in favour of the appellants. Although, Smt. Archana was impleaded subsequently on the demise of Dr. Samarendra Nath Mishra but Smt. Archana did not depose either in the original suit or in the pending appeal. The evidence of Smt. Archana was very essential and important. However, her son deposed on behalf of his father and stated in his depositin that his father did not give any consent to Smt. Archana to sublet the property in favour of the appellants. The son obviously could not explain the numerous rent receipts signed by his father in favour of the appellants. 71 of such rent receipts have been produced by the appellants in the said proceeding but were not considered in the manner in which it was expected to be, as we feel that it deserves a better consideration than the manner in which a Trial Judge had dealt with those rent receipts.

(3.) In view of the relationship between the plaintiffs and the defendant no.1, it is inconceivable that the defendant Smt. Archana had created any sub-tenancy or inducted the appellants without the consent of late Dr. Samarendra Nath Mishra. This is also evident from the several rent receipts signed by Dr. Samarendra Nath Mishra in favour of the appellants. The said rent receipts were all exhibited before the learned Trial Court without objection. The learned Counsel appearing on behalf of the decree-holder submits that it is imperative under Section 14 of the West Bengal Premises Tenancy Act, 1956 that sub-tenancy can only be created upon prior notice in writing to the landlord and with the consent of the landlord. This requirement of law has to be read and understood on the basis of the evidence-on-record.