S.N. Sanyal, J. - (1.) This revisional application at the instance of the defendants 2 and 4 is directed against an order of the learned Munsif, 4th Court, Sealdah, dated August 25, 1981 in Title Suit No 489 of 1975 expunging the names of the defendants 2 to 4 on tho prayer of the plaintiffs.
(2.) The plaintiffs instituted the suit for eviction of the defendants on the allegation that the plaintiffs are the owners of the suit property and the defendant no. 1 Dulal Chandra Saikhel was a tenant in respect of the same on a monthly rental of Rs. 60/- according to English calendar month. The defendant no. 1 has sublet the entire suit premises to defendant nos. 2, 3 and 4 without the previous consent in writing of the plaintiffs. Tho plaintiffs also allege that the defendant no 1 was a habitual defaulter in payment of rent since December 1968. The suit premises are also reasonably required by the plaintiff's for their own use and occupation and for building and rebuilding. The suit was instituted on August 26, 1975. The defendant no 1 did not contest the suit The suit was contested by defendants 2, 3 and 4. A joint written statement was filed on behalf of defendant nos. 2 and 4 and defendant no. 3 contested tho suit by a separate written statement. The main contention of defendant no. 2 was that he was the real tenant and his brother, defendant no I was a benamdar. The defendant no. 2 Sushil Kumar Sarkhel denied allegations of the plaintiffs regarding the subletting. As regards default, the contention of defendant no. 2 was that he used to pay rent, but for sometime he could not pay rent and he filed an application under Section 17(2A)(b) of the West Bengal Premises Tenancy Act. The defendant no. 2s petition under S 17(2A)(b) of the West Bengal Premises Tenancy Act was to remain open till the trial of the suit (vide Order no. 35 dated 23.4.1980). The suit was fixed for hearing on several dates Thereafter, on February 19, 1981 the plaintiffs filed an application stating that they did not want to proceed against the defendants 2, 3 and 4 and their names may be deleted. The said prayer was opposed by the defendants. The learned Munsif by the impugned order has held that the contesting defendants were stated to be sub tenants according to the plaint and if they have any independent light the ejectment decree would not be binding upon them. The learned Munsif further held that if they have no independent right, then the ejectment decree will be binding upon them and they will be unnecessary party. In that view of the matter he expunged the names of defendants 2 to 4. Being aggrieved the defendants 2 and 4 have challenged the said order in the present Rule The defendant no 3 is not a party to the present Rule.
(3.) Mr. Bose, learned Advocate for the petitioners has argued that the defendant no. 2 is the real tenant and this was urged by him in the written statement. The contention of Mr. Bose is that the application of tho plaintiff's for expunging the name of defendants nos. 2 to 4 is not a bona fide one. The defendant no 1, who is the name lender of defendant no 2, was not contesting the suit and the plaintiffs are thus trying to defeat the right of the defendant no 2, by obtaining an ex parte decree against the defendant no 1. Referring to the case of A.C. Bhattacharjee v. Arun Krishna Roy & ors., 65 CWN 1175 . Mr. Bose has argued, that the question of benami is a relevant 1 one and if benami is found, it would dispel the plaintiffs allegation of subletting or transfer Mr. Bose has further argued that the defendant no. 2 is regularly depositing rent and his application under Section 17(2A)(b) of the West Bengal Premises Tenancy Act is still awaiting decision in the instant suit. Mr Bose has thus submitted that the impugned order of the learned Munsif cannot be sustained as he acted illegally and with material irregularity in the exercise of his jurisdiction by expunging the name of the defendant without considering the specific contention of the defendant no. 2 about the tenancy being a benami one.;