Calcutta High Court (Appellete Side)
U vs R Hazra Zaman & Anr on 10 April, 2023
In the High Court at Calcutta
(Civil Revisional Jurisdiction)
Appellate side
C
S/L No. 15
C.O. 295 of 2023
10.04.2023
Ct-237 o
(RD) Mohammad Javed
u
Vs
r Hazra Zaman & Anr
t
N
. Mr. Partha Pratim Roy, Adv.
2 Mr. Nilofer Siddique Alam, Adv.
2
.... For the petitioner/appellant
S
l Mr. Sk. Mehhub Hossain, Adv.
1
... For the opposite party No.1
5
Mr. Abhijit Ray, Adv.
1 Mr. Jaydeep Guha, Adv.
/
C
... For the opposite party No.2
L
This revision application is filed challenging the legality
the order dated 14.12.2022 passed by the Learned
Judge, Chief Bench, City Civil Court, Calcutta in
connection with Misc. Appeal No. 110 of 2022.
By the order impugned Misc. Appeal no. 110 of 2022
was dismissed by the Learned Chief Judge, City Civil
Court, Calcutta observing, inter alia, that original tenant
was evicted so the order of eviction is also binding upon
the sub-tenant. It was further observed that Durga Rani
Seal that original owner of the property sold the subject
property to the present opposite parties Hazra Zaman
and Sk. Mohammad Samin after the lease of Sk. Md.
2
Quasim was surrender in favour of Durga Rani Seal.
According to learned Judge there was no tenancy or
lease agreement was subsisting at the point of time
when the property was purchased by the decree holder.
In fact, the decree holder filed one application
under Order 21 Rule 97 of the Civil Procedure Code
praying for police help for possession of subject property
in Ejectment Execution Case No. 109 of 2015 before the
learned Trial Judge, claiming himself to be a sub-tenant
in respect of subject property.
In support of sub tenancy learned advocate, Mr.
Partha Pratim Roy, appearing on behalf petitioner has
referred to the tenancy agreement between owner of the
subject property and Moniruz Zaman wherein para 7 of
the agreement empowered the second party to sub-let
the subject property to any person.
Learned advocate, Mr, Mehhub Hossain, appearing
on behalf of the opposite party has referred to Section 26
of the West Bengal Premises Tenancy Act and submitted
that no notice was sent to the landlord after creation of
alleged sub-tenancy.
Learned advocate, Mr. Roy has relied on a case of
Silver Line Forum Pvt. Ltd. vs Rajiv Trust and
another reported in (1998) 3 SCC 723 wherein Hon'ble
Apex Court that the executing court can decide where
resister or obstructor is a person bound by the decree
and a refuses to vacate the property. That question also
squarely falls within adjudicatory process contemplated
in Order 21 Rule 96 (2) of Code.
3
In the same line Hon'ble Apex Court in a csae of
Bangalore Development Authority Vs. N. Nanjappa
and another (unreported decision ) observed that
obstructor should be impleaded in the execution
proceeding and decide all the questions to right of the
obstructor under Order 21 Rule 96 read with rule 101
Civil Procedure Code.
Facts
and circumstances of this case in hand is
totally different.
In our case the original suit being no. EJ. Suit no.
186/2005 was disposed of on contest on 29.04.2015.
Appeal being no. TA. No. 27/ 2015 was preferred before
learned 5th Bench, City Civil Court which was dismissed.
Second appeal being no. SAT No. 345 /2017 was
preferred Hon'ble Division Bench of this Court but that
was not admitted and judgment and decree passed in
title appeal no. 27 of 2015 was affirmed. Thereafter,
plaintiff filed an execution no. 109 of 2015. Bailiff went
to execute the writ of delivery of possession on 21.11.
2015 and that was resisted. Thereafter, Misc. Case No.
351 of 2015 was registered on receipt of an application
under Order 21 Rule 97 of the Civil Procedure Code
praying for police help and that was allowed. Again
judgement debtor filed an application under Section 47
of the Civil Procedure Code which was registered under
Misc Case no. 10 of 2019. Thereafter judgement debtor
suppressing all material facts filed one title suit no .578
of 2022 before the learned 9th bench, city civil court,
Calcutta and obtained of order of status quo which was
also vacated upon an application filed under Order 39
Rule 4 of the Civil Procedure code by the opposite party/
decree holder.
In our case the petitioner was not a party to the
suit. He filed application under Order 21 Rule 101 of the
Civil procedure Code read with section 151 of the Code
before the learned 5th Judge Small Causes Court at
Calcutta claiming himself to be a sub tenant for the first
time in respect of the subject property. That application
was refused by the Executing Court. Being aggrieved an
appeal has been preferred before the learned Chief
Judge , City Civil Court, and that was disposed of by the
order impugned.
From the entire material and record, I find that
though original tenant contested the ejctment suit up to
second appeal but no steps was taken on behalf of the
petitioner though he claimed himself as sub tenant in
respect of the subject property. It is also not disputed
that though right to sub-let the premises was assigned
to the original tenant but no notice of sub tenancy was
ever sent to the landlord, which was not waived by the
agreement between landlord and original tenant.
Considering all facts and circumstances discussed
above, I do not find any illegality or infirmity in the order
impugned in this revision application.
With the aforesaid application revision application CO
295 of 2023 stands dismissed.
Let a copy of this order be communicated to the
Learned Judge, Chief Bench, City Civil Court, Calcutta.
All parties are directed to act on a server copy of this
order downloaded from the official website of this Court.
Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
(Bibhas Ranjan De)
