United Food Products Ltd. vs Haripada Mukherjee

Das Gupta, J.—The opposite party brought a suit for ejectment of one Gurupada Haldar on the averment that the tenancy has been terminated. In the same suit he also impleaded is Defendants the Asiatic Trading Company on the averment that Gurupada Haldar has sub-let the whole of the premises to the Asiatic Trading Company without his knowledge and consent. One Mukunda who is said to have been in possession of a portion of the premises under the Asiatic Trading Company was also made a party but we are not, in the present case, concerned with him. The opposite party put this decree into execution. After the opposite party had put this decree into execution he made a complaint before the executing court that when he had gone on March 13, 1954, to take delivery of possession-

Some men of the judgment-debtors, namely, Debendra Nath Adhikary, Suresh Dey and Sudhir Dey put resistance and threatened him with violence if attempt be made towards taking delivery of possession,

and lie prayed for police help for taking delivery of possession. Thereafter an application was filed by the present Petitioners purporting to be a petition u/s 13(2) of the West Bengal Premises Rent Control Act of 1950 in which they stated that the tenant of the first degree Shri Gurupada Haldar took settlement of the entire premises from the decree-holder and with his consent sub-let the entire premises to the Asiatic Trading Company who in its turn with the consent of Shri Gurupada Haldar, the tenant of the first degree, sub-let different portions of the premises to different persons including the Petitioners a few years ago, and that the tenancies of Gurupada Haldar and Asiatic Trading Company having been determined, these Petitioners were now direct tenants under the decree-holder opposite party and he was therefore not entitled to disturb the Petitioners. A few days, later a further application was filed on behalf of the Petitioners stating that Section 13(2) of the West Bengal Premises Rent Control Act had been wrongly mentioned as the provision of law under which the application had been filed and that it should be treated as an application u/s 47 of the Code of Civil Procedure. The learned Subordinate Judge has dismissed this application.

The main contention before us is that if the learned Subordinate Judge had looked at the substance of the matter, instead of the form, he would have clearly found that the application in which the decree-holder applied for police help was really an application under Order XXI, Rule 97 of the CPC and that the application of the present Petitioners wrongly mentioned as an application u/s 13(2) of the West Bengal Premises Rent Control Act and later sought to be described as an application u/s 47 of the CPC was nothing more than a petition of objection to the application under Order XXI, Rule 97 of the Code of Civil Procedure. It is contended that the learned Subordinate Judge should have in these circumstances investigated the matter under Order XXI, Rule 97 of the CPC and in not doing so he has refused to exercise a jurisdiction that was vested in him.

We are inclined to agree that in substance the application in which the opposite party decree-holder prayed for police help for delivery of possession was an application under Order XXI, Rule 97 on the Code of Civil Procedure. That rule provides in its firs sub-clause

Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted q obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction and provides in its second clause:

The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Rules 98 and 99 provide for further orders that the court would pass on such an application. In the present case the decree-holder did complain that he had been resisted in obtaining possession of the property and the fact that in his application to the court he had asked for police help does not alter the fact that he did complain to the court of this resistance. We, therefore, agree with Mr. Sen that the application was really an application under Order XXI, Rule 97 of the CPC and the court should have proceeded in accordance with the procedure laid down in Sub-clause (2) of Rule 97 and thereafter should have passed suitable orders under Rule 98 or Rule 99 of Order XXI of the Code of Civil Procedure.

The question is whether in view of this irregularity by the court below we should interfere with the order passed by it. We would have no hesitation in directing the learned court below to proceed in accordance with the procedure as laid down in Sub-clause (2) of Rule 97 of Order XXI of the Code of Civil Procedure, if we had any reason to think on the face of the record that the Petitioners had a prima facie case that they were "claiming in "good faith to have a right to be in possession of the property on "their own account". As already indicated, they base their claim on Sub-section (2) of Section 13 of the West Bengal Premises Rent Control Act, their case being that Gurupada Haider''s tenancy under the landlord Haripada Mukherji and the sub-tenancy of the Asiatic Trading Company under Gurupada Haider have been determined and consequently they have become direct tenants under Haripada Mukherji. The first question is whether the sub-tenancy of the Asiatic Trading Company can be bona fide said to have been lawfully determined. We have looked into the judgment of the ejectment suit and can find nothing to justify even, prima facie the view that by this decree the sub-tenancy of the Asiatic Trading Company under Gurupada Haider was determined. The mere fact that the suit was brought against the admitted tenant and against some to whom the premises were said to have been sub-let without the landlord''s consent and both were evicted does not in our judgment justify the conclusion that the sub-tenancy was lawfully determined. The ordinary suit for ejectment by a landlord is for ejectment of his tenant on the ground that the tenancy has been determined. It is unusual and unnecessary to implead the sub-tenant in such a case except under the special provisions of Section 12(1)(h) of the West Bengal Premises Rent Control Act. The question whether a sub-tenancy under the Plaintiff''s tenant has been determined or not does not arise for determination in the ordinary ejectment suit. It was contended, however, by Mr. Sen that in the particular frame of this suit the Plaintiff did proceed on the basis that the sub-tenancy has also been determined. We can find nothing in the judgment to justify such a view.

On the contrary, it seems clear that the landlord asked for the eviction of the Asiatic Trading Company on the allegation that it was not a person who had any right to be there, the alleged sublease to him not being binding on the landlord. In this position we are unable to agree that there is even a prima facie case that the sub-tenancy of the Asiatic Trading Company under Gurupada Haldar was lawfully determined by the decree in the ejectment suit.

It is not necessary for us to consider in the present case whether in a case where a tenancy and a sub-tenancy are determined by the same decree-assuming this may happen-the provisions of Sub-section (2) of Section 13 of the West Bengal Premises Rent Control Act will come into operation.

In the facts of the present case we have come to the conclusion that the Petitioners cannot be said to have bona fide believed that they had become direct tenants under Haripada Mukherji or had a lawful right to continue in possession of the property. Out conclusion, therefore, is that we shall not be justified in sending the case back for investigation of the matter under the provisions of Sub-clause (2) of Rule 97 of Order XXI of the Code of Civil Procedure.

The Rule is accordingly discharged but in the peculiar circumstances of the case there will be no order as to costs.

Let the records be sent down without delay.

Debabrata Mookerjee, J.

I agree.