N.K.MITRA,J. - (1.) THIS appeal is directed against the order No. 39 dated 16th December, 1995 passed by the learned Judge, XIII Bench, City Civil Court at Calcutta in Misc. Case No. 1565 of 1992.
(2.) THE respondents filed ejectment suit No. 82 of 1992 before the learned Judge, XIII Bench, City Civil Court at Calcutta against one Sri Probodh Chandra Majumdar for recovery of the suit premises inter alia, on the ground that the defendant was a habitual defaulter in payment of rent since April, 1991 and he had sub-let, transferred and/or assigned the entire suit premises to the strangers without the written consent of the landlord after coming into force of the West Bengal Premises Tenancy Act, 1956 and he was also guilty of violating the provisions of clauses (m), (o) and (p) of Section 108 of The Transfer of Property Act. The facts as stated in the plaint, inter alia, were that the plaintiffs/respondents had become owners/landlords of the premises being No. 13A, Fordyce Lane, Calcutta-14, having purchased the same by a registered deed of conveyance dated 22nd of February, 1991. The erstwhile owners by their letter dated 22nd of February, 1991 addressed to the tenant Sri Probodh Chandra Majumdar informed him about the said sale and asked him to attorn his tenancy in respect of the suit premises namely, 13A, Fordyce Lane, Calcutta-14 in favour of the purchasers with effect from 22nd February, 1991 and to pay rent to them since then as would appear from the copy of the said letter which was made annexure to the affidavit-in-opposition filed by the appellants to the application under Order 21, Rule 97 of Code of Civil Procedure filed by the decree-holder/plaintiff, which gave rise to Misc. Case No. 1565 of 1992 arising out of the Ejectment Execution Case No. 123 of 1992. The defendant in the above Ejectment Suit No. 82 of 1992 Sri Probodh Chandra Majumdar, in spite of due service of summons did not appear in the suit, nor did he contest the same and as such, the suit was heard ex parte and by the order No. 4 dated 29th June, 1992 the learned trial Judge passed an ex parte decree in favour of the respondents holding inter alia, that he did not find any cogent reason to disbelieve the evidence of the plaintiff No. 1 who deposed as PW1 and that he was satisfied that the defendant was a defaulter in payment of rent and had sublet the suit premises to third parties and also had damaged the suit premises, and therefore acts of the defendant came within the mischief of clauses (a), (d) and (i) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956. Regarding the service of the ejectment notice, the Court below also came to a clear finding that it was duly served upon the defendant. The said decree was put into execution and Ejectment Execution Case No. 123 of 1992 was started. In the said Ejectment Execution Case, an application under Order 21, Rule 97 of Code of Civil Procedure read with Section 208 of the Civil Rules and Orders was filed by the decree-holder/landlords against the judgment debtor/tenant, Sri Probodh Chandra Majumdar inter alia, praying for police help on the ground that the Court bailiff, who went to the suit premises at 13A, Fordyce Lane, Calcutta-14, on 2nd of December, 1992 was resisted by the judgment-debtor and the judgment-debtor also did not vacate the suit premises. The said application was registered as Misc. Case No. 1565 of 1992. The appellants thereafter filed Title Suit No. 634 of 1994 in the XIII Bench, City Civil Court at Calcutta against one Sri Nirode Ranjan Majumdar (Defendant No. 1) the decree-holders Sri Durgesh Mukherjee (defendant No. 2) and Smt. Krishna Mukherjee (defendant No. 3) and the judgment-debtor Sri Probodh Chandra Majumdar (defendant No. 4) inter alia, for declaration that the appellants who were the plaintiffs in the said suit, were the bona fide tenants under defendant No. 1, Sri Nirode Ranjan Majumdar, in respect of the self-same premises No. 13A, Fordyce Lane, Calcutta-14 and the ex parte decree passed in the Ejectment Suit No. 82 of 1992 was a nullity as the same had been obtained by practising fraud and also for a declaration that the said Ejectment Suit had been filed by the decree-holders by fraudulent misrepresentation and by falsely declaring themselves as plaintiff and the defendant No. 4 namely Probodh Chandra Majumdar was made a party defendant in the said suit collusively and with an ulterior motive, and also for permanent injunction. In the said suit an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was filed by the plaintiff/appellants for temporary injunction and an ad interim order of status quo was passed by the learned trial Judge on 6th of April, 1993. The learned trial Judge, however, ultimately by his order No. 53 dated 24th of July, 1995 rejected the said injunction application holding inter alia, that in such case, the general remedy of the appellants was under Section 47 read with Order 21, Rule 101 of the Code of Civil Procedure and that was the proper legal procedure to get remedy by the tenants/sub-lessees/sub-tenants, etc. in the said order, the trial Court further observed that the appellants in the present appeal, who were the plaintiffs therein, were boarders of a mess situated at the disputed premises.
(3.) THE appellants previously had filed the application under Order 1, Rule 10 read with Order 21, Rule 101 and Section 151 of Code of Civil Procedure in the said Misc. Case No. 1565 of 1992 for making the appellants as parties in the said Misc. Case and to pass appropriate order in the said Misc. Case in their presence but as they had subsequently filed Title Suit No. 634 of 1993 and obtained an ad interim order of status quo, they did not press their said application and allowed the same to be rejected.;