Saroj Kumar Gupta vs Khaitan Consultants Ltd. and Another

N.K. Bhattacharyya, J.—The Senior Ld. Advocate for the petitioner Mr. S.P. Roy Chowdhury hands over a copy of the revisional application to Mr. S.K. Sinha, Ld. Advocate for the opposite party No. 2. Mr. Roy Chowdhury submits that in all the matters there is a common point of law involved, such service of copy of the application for revision in all those cases except in re: Saroj Kanti Gupta, which has already been upon Mr. S.K. Sinha may be waived. Mr. Sinha readily agreed to such submission of Mr. Roy Chowdhury and waives his right regarding service of copy of the revisional application In re: Nihar Ranjan Majumdar, Adinath Ganguly and In re: Santosh Ranjan Das. Mr. Chakraborty and Mr. Mitra also agreed to such submission. The supplementary, affidavits in all those cases have already been served upon Mr. Mitra, Mr. Gautaim Chakraborty and Mr. S.K. Sinha appearing for opposite party Nos. 1 and 2. The Ld. Senior Advocate Mr. Gautam Chakraborty, Mr. Aninda Mitra and Mr. S.K. Sinha submit that they will not use any affidavit-in-opposition in all these cases referred to earlier and they will proceed on the basis of the averments and/or allegations made in the revisional application and the supplementary affidavit filed in connection thereto.

Heard the submission of the Ld. Senior Advocate for the petitioner. In re: Saroj Kanti Gupta, Mr. S.K. Roy Chowdhury being assisted by Mr. Amal Krishna Sana. Heard the submission of the Ld. Senior Advocate for the petitioner In re: Nihar Ranjan Majumdar Mr. Bidyut Kr. Banerjee being assisted by Mr. Debasis Roy. The Ld. Senior Advocate Mr. Bhaskar Bhattacharjee being assisted by Mr. Debasis Roy In re: Adinath Ganguly and the Ld. Advocate Mr. M.K. Surana for the petitioner In re: Santosh Ranjan Das. Mr. Banerjee and Mr. Bhattacharjee and Mr. Surana adopted the argument of Mr. S.P. Roy Chowdhury. So the argument as advanced by Mr. Roy Chowdhury be considered as arguments advanced by Mr. Banerjee Mr. Bhattacharjee and Mr. Surana. Mr. Roy Chowdhury also appears for the petitioner In re: Probodh Kr. Sinha being assisted by Mr. Debasis Roy. Also heard the submission of the Ld. Senior Advocate Mr. Gautam Chakraborty for the petitioner In re: Adinath Ganguly, being assisted by the Ld. Advocate Mr. M.P. Chowdhury. Heard the Ld. Senior Advocate Mr. Aninda Mitra appearing for the petitioner In re: Saroj Kanti Gupta, being assisted by Mr. M.P. Chowdhury for O.P. No. 1 and Mr. S.K. Sinha and Mr. L.P. Poddar appearing for O.P. No. 2 in all the matters. Considered the materials on record.

By the instant revisional application along with some other applications which are heard together as mentioned earlier. The applicant court of the learned Judge, 7th Bench, City Civil Court, Calcutta, challenged Order No. 10 dated 9th April, 1996 whereby the Ld. Judge dismissed the applications of the applicants for being added as parties, made under Order 1 Rule 10 (2) of the C.P.C.

The case of the applicants is that they were inducted in the suit premises by M/s Pyne & Pyne and that in their absence no proper decree can be passed and the matter can not be adjudicated.

Mr. Roy Chowdhury contended that there was a collusion between Ms. Khaitan & Company and Ms. Pyne & Pyne as a result of which the suit has been filed to evict, fn reality, the applicants by way of collusion without impleading them as Parties. Mr. Roy Chowdhury strenuously argued that point and invited my attention to different paragraphs of the revisional application, the affidavits filed by the applicants before the trial court, the affidavit filed by M/s. Khaitan Consultant Ltd., the plaintiff in the suit and the affidavit filed by one Mr. Amiya Nath Pyne.

Appearing for M/s. Pyne & Pyne, Mr. Sinha contended that the applicants were brought to the suit premises as licensee and not as subtenant and as such they have no right to be added. Shri Amiya Nath Pyne annexed to the revisional application and particularly annexure ''A'' to that affidavit where it has been stated that one Shri S.K. Dutta was given leave and licence for using a chamber. There are other documents in the said annexure containing the same statement.

Mr. Mitra contended by referring to certain decisions to wit, in the case of B.K. Dutta Vs. Sm. Nita Madan and Another, Kanailal Das and Others Vs. Hari Sankar Dutta, and Rambalak Shaw v. Ramanath Pandey & Anr. reported in 1996 (1) Cal 301 that the applicants are the sub-tenants and as sub-tenants they have no right to be added in he suit. That was also the argument of Mr. Chakraborty and in support of his argument, he relied on a Supreme Court decision in the case of Rup Chand Gupta Vs. Raghuvanshi Private Limited and Another, wherein it has been held that a sub-lessee need not be made a party.

Mr. Sinha contended that the licence, as was granted, has been revoked and as such now their position is that of a trespasser in the suit premises.

In view of submission of Mr. Sinha, the decision referred to by Mr. Mitra and Mr. Mitra and Mr. Chakraborty loses its application and relevance in this case. It is the well settled principle of law that a trespasser cannot be evicted without due process of law. The further point raised by both Mr. Mitra and Mr. Chakraborty is that unless there is jurisdictional error, illegality or material irregularity the order of the trial court cannot be reversed. There cannot be any dispute that those are the perimeters which warrants interference with the order of the trial court in revision. Before going to decide the revisional application, few facts are necessary.

It is the admitted position that originally the owner of the entire suit building was Bangurs. They held the property as a limited company under the name as style Emerald Co. Ltd. and the premises is known as "Emerald House". Subsequently M/s. Khaitan Consultant Ltd. the plaintiff in the suit, came to be the owner of the property and M/s. Pyne & Pyne became a tenant under the said M/s. Khaitan Consultant Ltd. Originally they were inducted in the suit premises by the ''Emerald Co. Ltd.'' and because of attornment M/s. Pyne & Pyne became a tenant under M/s. Khaitan Consultant Ltd. According to M/s. Pyne & Pyne, the case as disclosed in the affidavit of Shri Amiya Nath Pyne, filed before the trial court, toe said M/s. Pyne & Pyne never merged with the plaintiff company M/s. Khaitan & Co. It has been stated in paragraph 7 of the said affidavit that the said firm has been dissolved since the said firm did riot want to continue any further. So, the question of merging of ''M/s. Pyne & Pyne'' with the plaintiff could not and does not arise at any point of time.

Curiously enough the said affidavit has not been used by ''M/s. Pyne & Pyne''. The affidavit has been used by one Shri Amiya Nath Pyne, who has newer said that he has affirmed this affidavit on behalf of ''M/s. Pyne & Pyne''. Some letters have been annexed with that affidavit and some of such letters are written by one Mr. S.N. Pyne to the applicants on 20th April, 1995 wherein it has been stated that the firm M/s. Pyne & Pyne'' has been closed and the said firm has surrendered its tenancy to ''M/S. Khaitan Consultant Ltd. from 1st March, 1995. It has also been stated in the said letter that the tenancy has already been handed over to ''M/s. Khaitan Consultant Ltd.'' The applicants have also disclosed some other documents in the supplementary affidavit. But as those documents were not filed in the court below, I refrain from referring to them. However, there are materials disclosed by the parties to the suit and also to the petition of the applicants that the entire tenancy has been surrendered and possession of the same has been handed over. What is the effect of the same is a matter for decision by the trial court. What will be the effect of dissolution of ''M/s. Pyne & Pyne'', as disclosed in the affidavit of Shri Amiya Nath Pyne, is also a matter for consideration of the trial court But as it has been submitted by Mr. Sinha and disclosed also by Shri Amiya Nath Pyne in his affidavit, the applicants were given leave and licence regarding that chamber in the suit premises and the leave and licence was withdrawn. What will be the effect of the revocation of leave and license is also a matter for consideration by the trial court. What is the position on which they were brought to the suit premises is a question for determination by the trial court. That question cannot be, determined in the absence of the applicants in view of the fact that ''M/s. Pyne & Pyne'' is no more in existence. These are the matters of evidence and unless the applicants are brought on record those evidence cannot be brought on record. In such circumstances; I allow the revisional applications set aside the orders impugned as the learned trial Judge has failed to take cognizance of the fact disclosed in the affidavit and the trial court has acted with material irregularity and illegality. The trial court will take necessary steps to add the applicants as party defendants in the suit.

I make no order as to costs.

Mr. M.P. Chowdhury prayed for stay of operation of this order. The prayer is considered and refused.