TARUN CHATTERJEE,J. - (1.) THIS appeal can be disposed of on a very short point. The appellant admittedly was inducted as a tenant by the opposite party No. 2 Smt. Archana Poddar in respect of one room on the ground floor measuring more or less 580 sq.ft. at premises No. 42A, Shakespeare Sarani, P.S. Park Street, Calcutta-700 017 (hereinafter referred to as the "said premises") at a rental of Rs. 7,000/- per month. The respondent No. 1, however, is the landlord- owner of the suit premises and the respondent No. 2 who is very near relation was inducted as a tenant in the said premises under him. The suit was filed for eviction of the respondent No. 2 by the respondent No. 1. The suit has been decreed. No appeal has been preferred by the tenant/respondent No. 2. When the decree was going to be executed, the appellant filed an application under Order 21 Rules 99, 100 and 101 read with Section 151 of the Code of Civil Procedure, 1908 for a declaration that the appellant was a lawful sub- tenant in the suit premises and for other incidental reliefs. The application was based mainly on the ground of collusion and fraud. Parties adduced evidence on the question of collusion. The trial Court, however, rejected the application filed by appellant only on the ground that in view of the admitted fact that no notice of sub-tenancy was every served under Section 16 of the West Bengal Premises Tenancy Act (hereinafter referred to as "the Act"), question of consideration the case of collusion becomes academic and, therefore, the application on the aforesaid ground as alleged must be dismissed. In the said judgment, the learned Judge observed as follows :- "I have already stated that the fate of this case hinges upon the sole questions as to whether the sub-tenancy was created by the tenant in favour of the petitioner with the previous consent in writing by the landlord and that question having been admitted in the negative form by all the parties that is to say that the sub-tenancy was created without any previous consent in writing of the landlord, discussion of other points as to whether the ejectment suit was collusive one or not are redundant. All questions relating to fraud, collusion could have been considered had the petitioner complied with the provisions of Section 16 of the West Bengal Premises Tenancy Act and the petitioner having not complied with the same it cannot claim any lawful right of raising those points in this Misc. Case." (Emphasis supplied)
(2.) FROM the aforesaid observation of the trial Court, it is, therefore, an admitted position that the trial Court had not gone into the question of fraud and collusion between the landlord and tenant viz., the decree holder/respondent No. 1 and the tenant/respondent No. 2, and the appellant has made out a case of fraud and collusion denied by the decree holder/respondent No. 1. Both the parties adduced evidence in support of their respective cases relating to the case of fraud and collusion. Let us, therefore, consider whether only on the ground of non-service of notice by the sub-tenant under Section 16 of the West Bengal Premises Tenancy Act, the application filed by the appellant under Order 21 Rules 99 and 101 of the Code of Civil Procedure could be rejected by the trial Court without any finding on the question of fraud and collusion. In our view, the trial Court was not justified in rejecting the application of the appellant without going into the question of fraud and collusion. In the case of Sailendra Nath Bhattacharyya v. Bijon Lal Choudhary, 49 CWN 133, Mukherjee, J. (as His Lordship then was) sitting in the Division Bench laid down that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, whether the sub-lease was created before or after the suit, if the eviction is based on a ground which determines the sub-lease also, unless the decree is obtained by fraud or collusively suffered. At page 141 of the aforesaid Division Bench decision of this Court, Mukherjee, J., however, made the following observations :- "In our opinion, therefore, a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, if the eviction is based upon a ground which determines the under-lease also, unless he succeeds in showing that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him." (Emphasis added) From the aforesaid observation of the Division Bench of this Court, it is, therefore, perfectly clear that a sub-lessee is bound by a decree passed against the lessee unless the sub-lessee succeeds in showing that the judgment was vitiated by fraud or that lessee collusively suffered the decree to be passed against him. In this connection, we may refer to Section 44 of the Evidence Act, which deals with fraud or collusion in obtaining judgment. Relying on Section 44 of the Evidence Act, a Division Bench of this Court in the case of Jatindra Nath Das v. Jada Ram, 79 CWN 936, held that Section 44 of the Evidence Act lays down not merely a rule relating to evidence but also a rule of procedure as to how a judgment should be impeached and it declares not merely that a judgment which is conclusive against a party can be impeached by such party on the ground of fraud or collusion. It also held the that party seeking to impeach it may do so in the very suit or proceeding in which the judgment was proved against him by his opponent. The Division Bench further held that it was not necessary to have such judgment set aside by a separate proceeding. The Division Bench further held that when a judgment was impeached as above, it was necessary, however, to frame a proper issue regarding fraud or collusion alleged by the party concerned as required by Order 14 Rule 2 of the Code of Civil Procedure. In a Full Bench decision of the Patna High Court in the case of Harekrishna Sen v. Umesh Chandra Dutta, AIR 1921 Patna 193, the Patna High Court observed as follows :- "Judgments or decrees obtained by fraud upon a Court, binds not such Court, nor any other, and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding." In a recent decision of the Supreme Court in the case of Mahoob Sahay v. Syed Ismail, 1995(3) SCC 693, the Supreme Court in Paragraphs 10 and 11 has clearly down the principle that when the evidence on record established that the suit was collusive or fraudulent to defraud the creditors, it was a relevant fact and the Court would take cognizance thereof to find whether the trial Court was precluded to try the issue.
(3.) FROM the aforesaid discussion, we are, therefore, of the view that while deciding the question of collusion and fraud as alleged by the appellant and denied by the respondents, the trial Court ought not to have rejected the application only on the ground that since there was no notice in terms of Section 167 of the Act, the decree must be binding on the appellant. Mr. Somnath Bose, appearing on behalf of the respondents could not satisfy us on the question whether it was open to the Court to reject the application of the sub-lessee without going into the question of fraud and collusion. However, he relied on a decision of the Supreme Court in the case of (5) Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., 1998(1) CHN 141 : 1998(1) RCR 394(SC). From a plain reading of the decision of the Supreme Court, we are of the view that this decision has no manner of application in the facts and circumstances of this case. The Supreme Court in that decision has never said that when there was an issue of collusion or fraud between the landlord and the tenant, the Court still can reject the petition of the appellant on the ground that in view of non-service of notice under Section 16 of the Act, the application of the sub-tenant must be rejected without considering the question of collusion or fraud as put forward by the appellant in his application under Order 21 Rules 99 and 101 of the Code of Civil Procedure.;