Decided on November 08,1976

ANUP KUMAR DAW Respondents


S.K. Datta, J. - (1.)This Rule is directed against order No. 7 dated September 11, 1975, passed by the learned Judge, Ninth Bench, City Civil Court, Calcutta, in a suit for recovery of possession of the suit premises. By the impugned order the Petitioner's petition under Order 1, Rule 10 of the Code of Civil Procedure dismissed. The case in plaint is as follows:
The suit premises being flat No. 3 of 1st floor rear side of 184 Lenin Sarani, Calcutta, hereinafter referred to as the said premises, was taken on lease by Chattar Singh Dugar from Ajoy Krishna Daw on the basis of a registered lease deed dated June 22, 1963, for a period of 22 years commencing from July 1, 1963 and expiring on June 30, 1985. Chattar Singh died leaving the opposite party No. 3 as his heir and legal representative. Ajoy Krishna also died leaving a Will whereby the opposite parties Nos. 1 and 2 were appointed executors and the probate of the said Will was granted in their favour. It was stated that Chattar Singh and/or his heir defaulted in payment of rent and were in heavy arrears in the sum of Rs. 30,600 as per account set out. It was, further, stated that under the lease aforesaid, the lessee was not to assign, sub -let or part with possession of the premises or part thereof without the written consent of the lessor. In violation of the said terms, the opposite party No. 3 sublet, assigned or transferred possession of the premises to various companies and firms named including the Petitioner without the consent of the opposite parties Nos. 1 and 2 or their predecessor -in -interest. The notice was duly given upon the said opposite party forfeiting the lease and indicating the intention of the lessors to enter the said premises. The said opposite party failed to vacate the premises as required. The present suit was, accordingly, instituted by the opposite parties Nos. 1 and 2 against the opposite party No. 3 for recovery of possession of the suit premises.

(2.)It appears that an application was filed in the said suit by the Petitioner before us stating that under the terms of the lease Chattar Singh was entitled to use the suit premises for office purpose and also to accommodate therein company or firm in which he himself or his associates were interested without in any way affecting the terms of the said lease. It was further stated that the Petitioner was accommodated on the basis of the right referred to above and Chattar Singh was interested in the Petitioner firm as his relative was a partner therein. Further, after the death of Chattar Singh the Petitioner paid all amount of rent on behalf of his heir and rent upto September 1970 was cleared. Thereafter, though the rent was tendered within the prescribed time the said opposite parties refused to accept the same from the Petitioner. It was, further, stated that the Defendant opposite party No. 3 did not enter appearance in the suit and was acting in collusion with the Plaintiffs to create trouble on account of family dispute. The suit was also fixed for ex parte hearing and in these circumstances the Petitioner made an application for being added as party Defendant to the suit and to contest the same by filing a written statement.
(3.)This petition was rejected by the impugned order as, according to the learned Judge, the Petitioner was not at all a necessary party in a suit simpliciter for eviction and he could hie a separate suit for appropriate relief. The rule is against this order.

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