- (1.) An application made by the sub-tenant (hereafter the petitioner) praying for its addition as party defendant in Ejectment Suit No.165 of 2006 instituted by the landlord (hereafter the opposite party no.1) against the tenant (hereafter the opposite party no.2) has been rejected by order dated September 20, 2010 of the trial Court. Propriety of the said order is questioned in this application under Article 227 of the Constitution of India dated November 29, 2010.
(2.) Mr. Mukherjee, learned senior counsel representing the petitioner contended that from the materials on record it is clear that there is collusion between the opposite parties 1 and 2 and, therefore, the trial Court erred in law in rejecting the application for addition of party. He invited the Court's attention to an application filed by the opposite party no.1 under Order XII Rule 6 of the Code of Civil Procedure (hereafter the Code) read with Section 151 thereof. According to him, a judgment and decree on admission for recovery of vacant and peaceful khas possession of the suit property had been prayed for by the opposite party no.1 by referring to the pleading contained in the written statement where the opposite party no.2 had admitted creation of subtenancy. He, therefore, contended that the opposite party no.2 is virtually giving a walk-over to the opposite party no.1 and that this is a fit and proper case where the petitioner ought to be allowed to contest the proceedings of the ejectment suit.
(3.) Next, it was contended by him that the opposite party no.2 had put the petitioner in actual physical possession of the suit property in the year 1986 with the full knowledge of the opposite party no.1 and such fact is borne out by the agreement between the opposite party no.2 and the petitioner dated December 1, 2000 in respect of the property being Flat No.11 situated on the 4th floor of 4, Lord Sinha Road, Kolkata 700071 together with two garages in the ground floor. It is therefore clear from the materials on record that the petitioner is in the process of surrendering its tenancy to the opposite party no.1 by not effectively contesting the suit, and the presence of the petitioner is absolutely necessary for effective adjudication of the suit.;