Calcutta High Court
Sreejit Kumar Tagore vs Radha Kissen Bhatter & Ors on 21 November, 2025
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
I.A./G.A. No. 8 of 2024
E.C. No. 189 of 2019
C.S. No. 229 of 2004
Sreejit Kumar Tagore
Vs.
Radha Kissen Bhatter & Ors.
And
Pawan Kumar Lakkar & Ors.
Before: The Hon'ble Justice Apurba Sinha Ray
For the Applicant : Mr. Chanchal Kumar Dutta, Adv.
Mr. Nirmalya Das Gupta, Adv.
Ms. Krishna Mullick, Adv.
For the Decree Holder : Mr. Mukul Lahiri, Sr. Adv.
Mr. Durga Prasad Dutta, Adv.
Mr. Souvik Sen, Adv.
CAV On : 12.09.2025
Judgment On : 21.11.2025
Apurba Sinha Ray, J. :-
1. The 19 applicants have challenged the veracity, executability,
maintainability and legality of the decree dated 20/03/2015 mainly on the
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ground that although the Hon'ble Court had no pecuniary jurisdiction to
entertain the Suit being no. C. S 229/2004, the decreeholder filed the suit
for possession after suppressing material facts, and obtained the decree by
fraud and collusion. As admittedly the monthly rent was Rs. 4000/- for the
suit premises the Hon'ble High Court had no pecuniary jurisdiction to
entertain the eviction suit in view of Section 3 of the West Bengal Premises
Tenancy Act, 1997. The corporation tax and the commercial surcharge paid
by the tenancy cannot be a part of the rent of a tenancy. In this regard
(2016) 2 Cal LT 526 EIH Limited vs. Ms. Nadia A. Virji is referred to. The
claim of arrear rents from the year 1984 shows that the suit itself is barred
by limitation. The case law reported in (1987) 3 SCC 705 Smt. Nandita
Bose vs. Ratanlal Nahata [Paras 3, 4 & 5] is cited. Further, though the
applicants are in possession of the suit property with the knowledge of
Superior and immediate landlords, they didn't make them necessary parties
in the suit for possession and, more so, the immediate landlord being the
defendant no. 11 who was added to the suit much later, did not raise the
issue of objection regarding pecuniary jurisdiction before the trial court
intentionally with a view to give undue advantages to the superior landlord
for securing the eviction decree. Although the applicants were not made
parties to the suit, they were paying rents either to the landlord directly or
to the joint receivers appointed by the Hon'ble Court without any complaint
from the landlord or from the joint receivers. Several rent receipts were
placed for consideration. The case law reported in AIR 2002 Calcutta 108
Mehta Suraya and etc. vs. United Investment Corporation is cited. An
order passed by a court having no jurisdiction is a nullity. The case law of
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Kiran Singh & Ors. Vs. Chaman Paswan & Ors. reported in (1954) 1 SCC
710 is relied upon.
2. The applicants came to know about the present proceedings only when
the joint receivers pasted one copy of the order of the Hon'ble Court on
9/9/2022 on the wall of the suit premises showing that the joint receivers
were allowed to have the assistance of police force including the assistance
of Rapid Action Force to execute the decree of eviction passed on
20/03/2015. The publication of notice at the instance of the landlord was
not with regard to the execution proceedings.
3. The petitioners have already filed two applications being GA 3/2023 and
GA 5/2023 under XXI Rule 97 to 103 of the Code of Civil Procedure.
However, as all the questions arising between the parties to the suit in
which the decree was passed can only be decided in the execution
proceedings, the instant petition has been filed. Learned counsel for the
petitioners Mr. Ghosh has categorically submitted that the suit is wholly a
classic example of fraud and it is a settled law that fraud unravels every act.
The case law of S.P. Chengalvaraya Naidu (Dead) by Lrs. & Ors. vs.
Jagannath (Dead) by Lrs. And Ors. reported in (1994) 1 Supreme Court
Cases 1 [Paras 1, 5 & 6] is placed for consideration. Further, Mr. Ghosh
has pointed out that termination notice dated 17.04.2004 was defective and
hence the suit was not maintainable since its very inception.
4. The decree holder, on the other hand, claims that GA 8/2023 is solely
directed at the trial court's decree dated 20.03.2015 although an appeal was
disposed of by the Division Bench on 09.08.2019 by recording a compromise
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and modifying the decree. The trial court's decree was merged with the
appellate decree. In this regard attention was drawn to two judicial decisions
reported in 2004(8) SCC 724, Chandi Prasad and Ors. vs. Jagdish Prasad
and Ors. [Para 23] & (2020)15 SCC 771, Surinder Pal Soni vs. Sohan Lal
(Dead) through Legal Representatives.
5. According to Mr. Lahiri, Senior Advocate, appearing for the decreeholder,
the applicants' only challenge to the trial court's decree has lost its separate
existence due to merger and the instant challenge has, thus, become
infructuous. Any challenge to an appellate decree lies before the appeal
court which passed the decree.
6. The applicants failed to specify the particulars of alleged fraud and
collusion in the application as per order 6 Rule 4 of CPC, although it is
apparent that the entire proceedings were keenly contested by the defendant
no. 6 and 11 even before the Hon'ble Apex Court and ultimately the matter
was compromised in the Division Bench of the Hon'ble High Court and
thereby exonerating the defendant no. 11 from huge burden of money decree
for arrear rent and mesne profit of 20,13,59,648/- and the defendant no. 11
handed over 50 sq. feet which was in his khas possession and the remaining
part of the suit premises being occupied by the obstructionists. The
challenge to a compromise decree lies before the same court which recorded
the compromise. The case laws reported in (2020) 6 SCC 629, Triloki Nath
Singh vs. Anirudh Singh (Dead) through Legal Representatives and
Others [para 23], & (2022) 5 SCC 736, Sree Surya Developers and
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Promoters vs. N. Sailesh Prasad and Others [para 9] have been referred
to.
7. It is also the case of the decreeholder that although the suit was filed in
the month of August 2004, the same was lying in the department of Hon'ble
High Court at a time when jurisdiction to try the eviction suits was vested
with the Rent Controller. Subsequently the jurisdiction of Civil courts for
trying such suits was restored by the West Bengal Premises Tenancy
(Amendment) Act. The said suit was not an eviction suit simpliciter, it was a
suit for money decree as well. The decreeholder is under a legal obligation to
pray for the whole claim which included arrear rents along with interest
otherwise his claim would have become time barred. Therefore, there is no
illegality to file the suit before the Hon'ble Court. Furthermore, a new section
being section 12A was inserted in the Act of 1997 in the year 2009 and
subsequently The City Civil Courts Act had undergone certain changes
conferring concurrent jurisdiction to the Hon'ble Court and City Civil Court
for trying suits having value more than 10 lakhs to 1 crore and therefore,
the filing of the relevant suit before the Hon'ble Court cannot be said to be
an illegal one. Moreover, the objection to the pecuniary jurisdiction should
have been taken before the trial court and not before the execution
proceedings. Further, it is the value of the suit, and not the amount of rent
which determines the pecuniary jurisdiction of the court. Further, in view of
the decision reported in AIR 1964 SC 907, Ittyavira Mathai vs. Varkey
Varkey and Another [Para 8], even if the suit was barred by time and a
court passed a decree, such a decree is not a nullity in the eye of law. The
6
above point is also elaborately discussed in 2004 (8) SCC 706, Balvant N.
Viswamitra and Ors. vs. Yadav Sadashiv Mule (Dead) through Legal
Representatives and Others [page 88 to 99] and the executing court
cannot go into the question of nullity which can be agitated before the
appellate forum.
8. Moreover, though the applicants claimed to be sub-tenants, not a single
document is shown in proving that the factum of such sub-tenancies was
duly notified to the superior landlord under section 26(2) of West Bengal
Premises Tenancy Act, 1997 and Rule 12 of West Bengal Premises Tenancy
Rules. Provisions for such statutory notice can't be ignored in view of the
celebrated principle of Nazir Ahmed case law, which has been reiterated by
the Hon'ble Apex Court in 2022 SCC OnLine SC 909, Union of India and
Others vs. Mahendra Singh [paras 15, 16].
9. Section 16 of the West Bengal Premises Tenancy Act, 1956 is the
corresponding to Section 26 of the new Act, 1997. The case law reported in
AIR 1999 Calcutta 86, Sudhir Ranjan Paul vs. Chhater Singh Baid and
Another according to the decree-holder, in the absence of notice as required
under the Act, a decree upon the tenant is binding upon the sub-tenant.
Furthermore, it is the uniform view of the Apex Court that the sub-tenants
or sub-lessees are bound by an eviction decree passed against the tenant or
lessee. In this regard reliance was placed upon the case laws reported in
AIR 1964 SC 1889, Rupchand Gupta vs. Raghuvanshi (Pvt.) Ltd. and
Another and 2018 SCC OnLine Cal 5520, Tarun Kumar Ghosh & Ors. vs.
The Credit Union Cooperative Enterprises Ltd.. According to Mr. Lahiri,
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the case law reported in 2022 SCC OnLine Cal 890, Jyoti Biswas and Ors.
vs. Raj Kumar Ghosh and Ors. and cited by the applicants is not applicable
in this case as the present case is factually different.
10. From the order dated 28/11/2005 it is revealed that a joint receiver was
appointed in the suit much earlier by the Hon'ble Court to collect
occupational charges ,and not the rent, from the occupiers of the premises,
and it is conditioned that such payment will not create any right in favour of
the occupants.
Court's View:-
11. Admittedly, the present petitioners have filed GA3 of 2023 and GA 5 of
2023 under Order XXI Rule 97(2), 103 of the Code of Civil Procedure asking
this executing court to decide the relevant legal issues raised by them. In
spite of such application the present petition under Section 47 of the Code
has been filed mainly on the grounds that petitioners were not made parties
to the relevant proceeding and the decree of possession was obtained by the
landlord in connivance with the defendant no. 11. It is also alleged that the
Hon'ble High Court had no pecuniary jurisdiction to entertain such
proceedings and hence a decree of eviction in such a suit passed by the
Hon'ble Court is a nullity. It is also contended that petitioners know about
the execution proceedings only when the joint receivers appointed by the
Hon'ble Court affixed a copy of one order dated 09.09.2022 on the wall of
the suit premises.
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12. The landlord on the other hand has taken the plea that the petitioners
had sufficient knowledge of above proceedings and further the Hon'ble Court
had the subject matter jurisdiction and therefore the order of eviction
passed by the Hon'ble Court cannot be said to be legal. The value of the suit
determines the pecuniary jurisdiction of the court and therefore a suit for
possession along with money claim can be rightly entertained by the Hon'ble
Court if it comes within its pecuniary value.
13. The judicial decisions cited by the applicants are taken into
consideration. The judicial decisions reported in 2016 SCC Online Cal 431,
EIH Limited vs. Ms. Nadia A. Virji, the Hon'ble High Court at Calcutta has
been pleased to observe that in view of the law laid down in Team
Consultants Private Limited v. Swapna Lahiri [2006(3) CHN 689] the
position emerged inescapable that the Corporation tax or the commercial
surcharge though falls within the obligation of the tenant under Section 5
thereof cannot constitute rent for the purpose of section 3 of the West
Bengal Premises Tenancy Act, 1997. It is also held in that judgement that
mere statement that the Corporation tax leviable quarterly on the premises
is Rs. 18,622/- does not keep the premises outside the purview of the said
Act.
14. In the judicial decisions reported in (1987) 3 SCC 705 (Smt. Nandita
Bose vs. Ratanlal Nahata), the Hon'ble Supreme Court has been pleased to
hold as hereunder:-
"4. The principles which regulate the pecuniary
jurisdiction of civil courts are well settled. Ordinarily, the
9
valuation of a suit depends upon the reliefs claimed
therein and the plaintiffs' valuation in his plaint
determines the court in which it can be presented. But the
plaintiff cannot invoke the jurisdiction of a Court by either
grossly overvaluing or grossly undervaluing a suit. The
court always has the jurisdiction to prevent the abuse of
the process of law. "
15. In (1994) 1 SCC 1, S.P. Chengalvaraya Naidu (Dead) by Lrs. Vs.
Jagannath (Dead) by Lrs. And Ors., the Hon'ble Apex Court held that if a
judgment or decree of a Court is obtained by fraud the same is to be treated
as a nullity and can be questioned even in collateral proceedings.
16. In Kiran Singh and others vs. Chaman Paswan and others reported
in (1954) 1 SCC 710 the Hon'ble Apex Court was pleased to held that:-
"6. ..................It is a fundamental principle well
established that a decree passed by a Court without
jurisdiction is a nullity, and that its invalidity could be set
up whenever and wherever it is sought to be enforced or
relied upon, even at the stage of execution and even in
collateral proceedings.............
17. The judicial decision reported in AIR 2002 Calcutta 108 Mehta Suraya
and Etc. vs. United Investment Corporation, the Hon'ble High Court has
held that the decree passed on admission of a lessee to surrender land does
not bind the sub-lessee. It is further held that such a decree is executable
against lessees, and not sub-lessees.
18. The decree holder has also relied upon several reported judgments. The
judicial decision reported in (2004) 8 SCC 724 Chandi Prasad and Ors. Vs.
10
Jagdish Prasad and Ors., the Hon'ble Apex Court has been pleased to
observe as hereunder:-
"23. The doctrine of merger is based on the principles of
propriety in the hierarchy of the justice-delivery system.
The doctrine of merger does not make a distinction
between an order of reversal, modification or an order of
confirmation passed by the appellate authority. The said
doctrine postulates that there cannot be more than one
operative decree governing the same subject-matter at a
given point of time.
24. It is trite that when an appellate court passes a
decree, the decree of the trial court merges with the decree
of the appellate court and even if and subject to any
modification that may be made in the appellate decree, the
decree of the appellate court supersedes the decree of the
trial court. In other words, merger of a decree takes place
irrespective of the fact as to whether the appellate court
affirms, modifies or reverses the decree passed by the trial
court. When a special leave petition is dismissed
summarily, doctrine of merger does not apply but when an
appeal is dismissed, it does. [See V.M. Salgaocar and
Bros. (P) Ltd. v. CIT (2000) 5 SCC 373"
19. In Surinder Pal Soni Vs. Sohan Lal (Dead) Through Legal
Representatives reported in (2020) 15 Supreme Court Cases 771 the
Hon'ble Apex Court has been pleased to observe that a doctrine of merger is
founded on the rationale that there cannot be more than one operative
decree at a given point of time. The doctrine of merger applies irrespective of
whether the appellate court has affirmed, modified or reversed the decree of
11
the trial court. In Kunhayammed v. State of Kerala, while explaining the
doctrine of merger, this Court held thus: (SCC p. 370, para 12)
"12. The logic underlying the doctrine of merger is that
there cannot be more than one decree or operative orders
governing the same subject-matter at a given point of time.
When a decree or order passed by an inferior court,
tribunal or authority was subjected to a remedy available
under the law before a superior forum then, though the
decree or order under challenge continues to be effective
and binding, nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the lis before it
either way-whether the decree or order under appeal is
set aside or modified or simply confirmed, it is the decree
or order of the superior court, tribunal or authority which
is the final, binding and operative decree or order wherein
merges the decree or order passed by the court, tribunal or
the authority below. However, the doctrine is not of
universal or unlimited application. The nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or which could
have been laid shall have to be kept in view."
20. The Hon'ble Supreme Court in (2020) 6 SCC 629 Triloki Nath Singh
Vs. Anirudh Singh (Dead) through LRS & Ors. has been pleased to hold as
hereunder:-
"15. What has emerged as a legislative întent has been
considered in extenso by this Court in Pushpa Devi
Bhagat v. Rajinder Singh, (2006) 5 SCC 566 after taking
note of the scheme of Order 23 Rule 3 and Rule 3-A added
12
with effect from 1-2-1977. The relevant paragraphs are as
under: (SCC p. 576, para 17)
"17. The position that emerges from the amended
provisions of Order 23 can be summed up thus:
(1) No appeal is maintainable against a consent
decree having regard to the specific bar
contained in Section 96(3) CPC.
(4) No appeal is maintainable against the order
of the court recording the compromise (or
refusing to record a compromise) in view of the
deletion of clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for setting
aside a compromise decree on the ground that
the compromise was not lawful in view of the
bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel
and is valid and binding unless it is set aside by
the court which passed the consent decree, by
an order on an application under the proviso to
Rule 3 Order 23.
Therefore, the only remedy available to a party
to a consent decree to avoid such consent
decree, is to approach the court which recorded
the compromise and made a decree in terms of
it, and establish that there was no compromise.
In that event, the court which recorded the
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compromise will itself consider and decide the
question as to whether there was a valid
compromise or not. This is so because a consent
decree is nothing but contract between parties
superimposed with the seal of approval of the
court. The validity of a consent decree depends
wholly on the validity of the agreement or
compromise on which it is made. The second
defendant, who challenged the consent
compromise decree, was fully aware of this
position as she filed an application for setting
aside the consent decree on 21-8-2001 by
alleging that there was no valid compromise in
accordance with law. Significantly, none of the
other defendants challenged the consent decree.
For reasons best known to herself, the second
defendant within a few days thereafter (that is
on 27-8-2001) filed an appeal and chose not to
pursue the application filed before the court
which passed the consent decree. Such an
appeal by the second defendant was not
maintainable, having regard to the express bar
contained in Section 96(3) of the Code."
(emphasis supplied)"
21. In (2022) 5 SCC 736 Sree Surya Developers and Promoters Vs/ N.
Sailesh Prasad & Ors. the Hon'ble Supreme Court has been pleased to hold
after quoting the observation of the Hon'ble Apex Court in Pushpa Devi
Bhagat Vs. Rajinder Singh reported in (2006) 5 SCC 566 and Banwari Lal V.
Chando Devi reported in (1993) 1 SCC 581, that no sooner a question
relating to lawfulness of the agreement or compromise is raised before the
14
court that passed the decree on the basis of any such agreement or
compromise, it is that court and that court alone which can examine and
determine that question.
22. In AIR 1993 Supreme Court 2094 R.S.D.V. Finance Co. Pvt. Ltd. Vs.
Shree Vallabh Glass Works Ltd. the Hon'ble Supreme Court observed that
the Division Bench was totally wrong in passing an order of dismissal of the
suit itself when it had arrived at the conclusion that the Bombay Court had
no jurisdiction to try the suit. The only course to be adopted in such
circumstances was to return the plaint for presentation to the proper Court
and not to dismiss the suit. It may be further noted that the Learned single
Judge trying the suit had recorded a finding that the Bombay Court had
jurisdiction to entertain and decide the suit. Sub-sec. (1) of S. 21 of the Code
of Civil Procedure provides that no objection as to the place of suing shall be
allowed by any appellate or revisional court unless such objection was taken
in the Court of first instance at the earliest possible opportunity and in all
cases where issues are settled at or before such settlement and unless there
has been consequent failure of justice. The above provision clearly lays down
that such objection as to the place of suing shall be allowed by the appellate
or revisional court subject to the following conditions:-
(i) That such objection was taken in the Court of first instance at the earliest
possible opportunity,
(ii) in all cases where issues are settled then at or before such settlement of
issues;
(iii) There has been a consequent failure of justice.
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Therefore, from the above case law it is found that the objection regarding
the jurisdiction of court of first instance is to be raised at the earliest
possible opportunity.
22. In 1964 SC 907 Ittyavira Mathai Vs. Varkey Varkey & Anr. the
Hon'ble Supreme Court has dealt with the issue of subject matter
jurisdiction and pecuniary jurisdiction. Paragraph 8 is quoted herein below:-
"8. The first point raised by Palkedy for the appellant is
that the decree in OS No. 59 of 1093 obtained by Anantha
Iyer and his brother in the suit on the hypothecation bond
executed by Ittiyavira in favour of Ramalinga lyer was a
nullity because the suit was barred by time. In assuming
that the suit was barred by time, it is difficult to
appreciate the contention of learned counsel that the
decree can be treated as a nullity and ignored in
subsequent litigation. If the suit was barred by time and
yet, the court decreed it, the court would be committing an
illegality and therefore the aggrieved party would be
entitled to have the decree set aside by preferring an
appeal against it. But it is well settled that a court having
jurisdiction over the subject matter of the suit and over the
parties thereto, though bound to decide right may decide
wrong; and that even though it decided wrong it would not
be doing something which it had no jurisdiction to do. It
had the jurisdiction over the subject-matter and it had the
jurisdiction over the party and, therefore, merely because
it made an error in deciding a vital issue in the suit, it
cannot be said that it has acted beyond its jurisdiction. As
has often been said, courts have jurisdiction to decide
16
right or to decide wrong and even though they decide
wrong, the decrees rendered by them cannot be treated as
nullities. Learned counsel, however referred us to the
decision of the Privy Council in Maqbul Ahmad v. Onkar
Pratap Narain Singh and contended that since the court is
bound under the provisions of Section 3 of the Limitation
Act to ascertain for itself whether the suit before it was
within time, it would act without jurisdiction if it fails to do
so. All that the decision relied upon says is that Section 3
of the Limitation Act is peremptory and that it is the duty
of the court to take notice of this provision and give effect
to it even though the point of limitation is not referred to in
the pleadings. The Privy Council has not said that where
the court fails to perform its duty, it acts without
jurisdiction. If it fails to do its duty, it merely makes an
error of law and an error of law can be corrected only in
the manner laid down in the Civil Procedure Code. If the
party aggrieved does not take appropriate steps to have
that error corrected, the erroneous decree will hold good
and will not be open to challenge on the basis of being a
nullity."
23. In (2004) 8 SCC 706 Balvant N. Viswamitra and Ors. Vs. Yadav
Sadashiv Mule (dead) through LRS. & Ors. has dealt with the question
whether a sub-tenant is a proper party or not. In paragraphs 27 to 30 have
dealt with such issue and they are as follows:-
"27. In Importers and Manufacturers Ltd. Vs. Pheroze
Framroze Traporewala reported in AIR 1953 SC 73 this
Court held that in a suit for possession by a landlord
against a tenant, the sub-tenant is merely a proper party
and not a necessary party.
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28. In Rupchand Gupta v. Raghuvanshi (P) Ltd AIR 1964
SC 1889 an ex parte decree was passed in favour of the
landlord and against the tenant. An application for setting
aside the decree was made by the sub-tenant by invoking
the provisions of Order 9 Rule 13 of the Code of Civil
Procedure, 1908, inter alia contending that the decree was
collusive inasmuch as the sub-tenant was not joined as
the party-defendant. The decree was, therefore, liable to
be set aside. Repelling the contention, this Court observed:
(SCR p. 764)
"It is quite clear that the law does not require that the sub-
lessee need be made a party. It has been rightly pointed
out by the High Court that in all cases where the landlord
institutes a suit against the lessee for possession of the
land on the basis of a valid notice to quit served on the
lessee and does not implead the sub-lessee as a party to
the suit, the object of the landlord is to eject the sub-lessee
from the land in execution of the decree and such an
object is quite legitimate. The decree in such a suit would
bind the sub-lessee. This may act harshly on the sub-
lessee; but this is a position well understood by him when
he took the sub-lease. The law allows this and so the
omission cannot be said to be an improper act" (emphasis
supplied)
29. In our considered opinion, the present respondents
could not be said to be "necessary party" to the suit. Non-
joinder of the respondents, hence, would not make a
decree passed by the Court of Small Causes, Bombay a
nullity or inexecutable. The High Court erroneously
proceeded against the well-settled principle of law by
observing in the impugned judgment that since the
respondents (petitioners before the High Court) were
claiming through Papamiya and as they were not joined
as "party" in the suit, the orders passed by the court
"would in no way affect or bind them". The above
observation, in our opinion, did not lay down the law
correctly.
30. Since the respondents were not necessary parties, it
was not incumbent on the plaintiffs to join them in the
suit. The defendants appeared through an advocate and
the decree was passed as their advocate withdrew his
appearance. Even thereafter, S.K. Shaikh Ahmed and
others claiming to be heirs of Papamiya filed a writ
petition against the decree passed in RAE Suit No. 1992 of
1977, and even that petition was dismissed. In the
circumstances, in our opinion, the High Court was wrong
in interfering with the decree passed by the Small Cause
Court, Bombay and confirmed by the Appellate Bench of
that court. The order passed by the High Court, therefore,
deserves to be set aside."
24. The Hon'ble Supreme Court in 2022 SCC OnLine (SC) 909 Union of
India & Ors. Vs. Mahendra Singh has considered the effect of direction
contained in the provision of the statute. Paragraph 15 to 16 are relevant for
the purpose of our discussion and they are as follows:-
"15. A three Judge Bench of this Court in a judgment
reported as Chandra Kishore Jha v. Mahavir Prasad, held
as under:
"17...................It is a well-settled salutary principle
that if a statute provides for a thing to be done in a
particular manner, then it has to be done in that manner
and in no other manner. (See with advantage: Nazir
Ahmad v. King Emperor [(1935-36) 63 IA 372: AIR 1936
PC 253 (2)], Rao Shiv Bahadur Singh v. State of V.P. [AIR
1954 SC 322: 1954 SCR 1098], State of U.P. v. Singhara
Singh [AIR 1964 SC 358: (1964) 1 SCWR 57].) An election
petition under the rules could only have been presented in
the open court up to 16-5-1995 till 4.15 p.m. (working
hours of the Court) in the manner prescribed by Rule 6
(supra) either to the Judge or the Bench as the case may
be to save the period of limitation. That, however, was not
done..........
16. The said principle has been followed by this Court in
Cherukuri Mani v. Chief Secretary, Government of Andhra
Pradesh wherein this Court held as under:
"14. Where the law prescribes a thing to be done
in a particular manner following a particular
procedure, it shall be done in the same manner
following the provisions of law, without
deviating from the prescribed procedure.........".
25. The judgment of Hon'ble Calcutta High Court reported in AIR 1990 Cal
86 Sudhir Ranjan Paul V. Chhater Singh Baid paragraph 13 has dealt
with the objection of the sub-tenant against the attempt for delivery of
possession of the suit premises to the decree-holder. In paragraph 13 it has
been mentioned that:-
"13. It is now well-settled in view of a recent decision of
the Supreme Court of India in Silver Line Forum (P) Ltd. v.
Rajiv Trust reported in 1998 (2) Indian Civil Case 116
(1998 AIR SCW 1544) that in absence of a notice as
contemplated under sub-sections (2) of Section 16 of the
said Act, the sub-tenant has absolutely no right to be
impleaded as a party in the suit and a decree passed
upon the tenant is binding upon the sub-tenant."
26. Paragraph 18 of the said decision is also worth mentioning:-
"18. Both the appellants did not examine any witness nor
they examine themselves. The testimony of the witnesses
examined on behalf of the decree holder, thus, had
remained unchallenged. The appellant S. R. Paul claimed
himself to be a sub-tenant with notice. He has failed to
prove that a notice had been issued to the decree holder
after he was inducted. In any event as his application
under Order 1 Rule 10(2) of the Code of Civil Procedure
was dismissed, in the execution case, could not be
permitted to reopen the entire matter. The said objection
was also barred under the principles of res judicata or the
principles analogous thereto. In the said order dated 5-5-
1997 it was clearly held :-
"In terms of Section 16 of the aforesaid Act the
creation and termination of sub-tenancies are
required to be notified thereunder. But there is
not the merest and faintest whisper by the
afore-said petitioner M/s. Subir Paul that the
creation of their alleged sub-tenancy in August,
1976 had duly been notified in terms of the
aforesaid provision. In terms of Section 13(2) of
the aforesaid Act, it is only the sub-tenants who
have given notice of their sub-tenancies to the
Land-lord under the provisions of Section 16 are
entitled to be made parties to any suit or
proceeding for recovery of possession of the
premises by the landlord. The petitioner M/s.
Subir Paul not having given notice of its alleged
sub-tenancy to the Landlord under the aforesaid
provision of law is not clearly entitled to be
added as a defend-ant in the instant suit as
such. The Ld. Advocate for the aforesaid
petitioner had sadly sought to submit that it had
no knowledge as to who the Landlord was, in
the circumstances as stated. But - there is no
whisper by the petitioner either to indicate that
any notice about the creation of the alleged sub-
tenancy in August, 1976 had been given by it to
the Landlord known to it. That being so and in
view of the decisions reported in 81 CWN 400
and 86 CWN 549 (at page 552), the application
of the aforesaid petitioner for being added as a
defendant No. 2 in the instant suit could hardly
be entertained."
27. The judgment reported in AIR 1964 SC 1889 Rupchand Gupta Vs.
Raghuvanshi (Private) Ltd. & Anr. has dealt with the position of the sub-
lease and non-impleadment of the sub-lessee in the relevant proceeding.
Paragraph 12 is quoted herein below:-
"12. Taking the last action first viz. Raghuvanshi's
omission to implead the appellant, it is quite clear that the
law does not require that the sub-lessee need be made a
party. It has been rightly pointed out by the High Court
that in all cases where the landlord institutes a suit
against the lessee for possession of the land on the basis
of a valid notice to quit served on the lessee and does not
implead the sub-lessee as a party to the suit, the object of
the landlord is to eject the sub-lessee from the land in
execution of the decree and such an object is quite
legitimate. The decree in such a suit would bind the sub-
lessee. This may act harshly on the sub-lessee; but this is
a position well understood by him when he took the sub-
lease. The law allows this and so the omission cannot be
said to be an improper act."
28. In Tarun Kumar Ghosh & Ors. Vs The Credit Union Cooperative
Enterprises Ltd. reported in [2018 SCC OnLine Cal 5520 (paras 50 and
65)] the Hon'ble Single Judge has been pleased to observe that the sub-
tenants are not necessary parties in a suit by the landlord against the
tenant for ejectment. Paragraph 65 is quoted herein below:-
"65. It has been the consistent view both under the 1956
Act and the subsequent rent legislation in 1997 that in the
suit by a landlord against tenant for ejectment, the sub
tenants are not necessary parties and, therefore, they
cannot object to the delivery of possession on the ground
that the decree is not binding as they were not made
parties to it. Therefore, the decree for ejectment of the
lessee can be executed against the sub-lessees although
he was not made a party. The aforesaid discussion is
made in order to show the status of the present
applicants."
29. The case law of Jyoti Biswas & Ors. Vs. Rajkumar Ghosh & Ors.
reported in Calcutta 2022 SCC OnLine Cal 890 has clearly laid down that
the status of each of the appellants should be decided through trial on
evidence. The relevant paragraph 93 is quoted herein below:-
"93. The right, title and interest of the appellants in the
property have to be decided on a case to case basis. While
deciding this right all the issues discussed above have to
be determined by the court. If we were to relegate the
parties to the ordinary remedy of institution of a suit to
determine the questions involved, it could result in a
multiplicity of proceedings before the court. After so many
years of litigation, this proceeding would neither be
practicable nor sub-serve the ends of justice. I am of the
opinion that the status of each of the appellants should be
decided through trial on evidence in the Order 21 Rules 97
to 103 proceeding in this court by admission and
consideration of substantial evidence and legal arguments
on all the above issues."
30. From the above judicial decisions, it appears that the applicants have
assailed the instant execution case by filing the instant petition under
Section 47 of the Code of Civil Procedure on the grounds, inter alia, that
though the applicants are necessary parties, they were not made parties to
the suit for possession and further the suit was excessively overvalued to
bring the matter within pecuniary jurisdiction of the Hon'ble High Court at
Calcutta.
31. Needless to mention the 19 applicants had admitted that they paid rents
to the immediate landlord directly or to the joint receiver appointed by the
Hon'ble Court. The said applicants have also annexed the payment receipts
issued by the defendant no. 11 and also payment receipts issued by the
Joint Receiver. They have also addressed letters to Mr. C.R. Panda,
Advocate, no. 2 Bar Association, Kolkata High Court, the Joint Receiver
appointed by the Hon'ble High Court at Calcutta intimating him that they
deposited rents of the particular months in the account of defendant no. 11.
It is very much clear from the above documents that the applicants were
well aware of the pending proceeding, otherwise, they did not intimate the
joint receiver about their action and not only that, they also knew the Bar
Association Room where Mr. Panda used to sit. When a person pays rent or
gives information to a Joint Receiver appointed by the Court, in all
probability he must have the knowledge of reasons for appointment of such
receiver at the instance of the Court. Therefore, it is difficult to believe for
any reasonable and prudent man that though the applicants were
depositing rents/occupational charges to the Joint Receiver and also giving
information of such payment to the accounts of their immediate landlord to
the Joint Receiver, appointed by the Court, they do not have any idea as to
why such joint receiver has been appointed by the Court.
32. The supplementary affidavit in GA 3/2022 of the plaintiff shows that the
original landlord made newspaper publication on 29th April, 2013 and also
on 03.05.2013 in two newspapers intimating the pendency of the
proceedings being no. C.S 29 of 2004 along with GA No. 723 of 2013 asking
the tenants to appear before the Hon'ble Court.
33. In view of that publication, the original landlord has given notice not
only to the tenants but also in respect of other persons who could have
appeared in the said proceedings if their interests are prejudiced or affected.
Therefore, it appears sufficient notice has been given to all concerned.
34. A point has been raised that there was no specific name of the 19
applicants or other occupiers of the suit premises in the said notice
published in the newspapers. In this regard I should say that no notice as
required under Section 16 of the West Bengal Premises Tenancy Act, 1956
was given to the superior landlord either by the immediate landlord of the
said applicants or by the 19 applicants and other occupants at the time of
creation of sub lease. For the sake of convenience, section 16 of the Act,
1956 was reproduced hereinbelow:-
"Section - 16. Creation and termination of sub-tenancies to
be notified.
(1) Where after the commencement of this Act any
premises are sub-let either in whole or in part by the
tenant with the previous consent in writing of the landlord,
the tenant and every sub-tenancy to whom the premises
are sub-let shall give notice to the landlord in the
prescribed manner or the creation of the sub-tenancy
within one month from the date of such sub-letting and
shall in the prescribed manner notify the termination of
such sub-tenancy within one month of such termination.
(2) Where before the commencement of this Act, the
tenant, with or without the consent of the landlord, has
sub-let any premises either in whole or in part, the tenant
and every sub-tenant to whom the premises have been
sub-let shall give notice to the landlord of such sub-letting
in the prescribed manner [within six months] of the
commencement of the Act and shall in the prescribed
manner notify the termination of such sub-tenancy within
one month of such termination.
(3) Where in any case mentioned in sub-section (2) there
is no consent in writing of the landlord and the landlord
denies that he gave oral consent, the Controller shall, on
an application made to him in this behalf either by the
landlord or the sub-tenant within two months of the date
of the receipt, of the notice of sub-letting by the landlord or
the issue of the notice by the sub-tenant, as the case may
be, by order declare that the tenant's interest in so much
of the premises as has been sub-let shall cease and that
the sub-tenant shall become a tenant directly under the
landlord from the date of the order. The Controller shall
also fix the rents payable by the tenant and such sub-
tenant to the landlord from the date of the order. Rents so
fixed shall be deemed to be fair rent for purposes of this
Act."
35. If the said applicants or his immediate landlord, being defendant no. 11
did not comply with the requirement of Section 16 of the Act of 1956, the
landlord had no obligation to issue notice of the termination to the 19
applicants or other occupiers.
36. The present applicants have also argued that the defendant No. 11 in
connivance with the landlord did not take the plea before the trial judge that
the suit is barred under the provision of West Bengal Premises Tenancy Act.
If we peruse the written statement submitted by M/s B.K. House and Land
Company, being the defendant no. 11 of the CS No. 229 of 2004 of the High
Court at Calcutta Ordinary Original Civil jurisdiction we shall find that such
submission on behalf of the applicants is not correct. In this regard if the
paragraphs 10, 11, 16 are taken into consideration, it shall be found that
the defendant no. 11 has taken the plea that the tenancy of the said
defendant has not been terminated under the provision of West Bengal
Premises Tenancy Act and further he has also taken the plea that the suit is
liable to be dismissed for misjoinder and non-joinder of parties. From the
paragraph 11 of the said written statement it is found that defendant no. 11
has categorically stated that the landlord has sought to obtain an eviction
decree in respect of the suit premises behind the back of the defendant no.
11 by wrongfully impleading the defendant nos. 1 to 10 as parties to the suit
although the said defendants are nobody qua the suit premises nor have
any interest in respect of thereof. Furthermore, in Para 5 (v) of the said
written statement the defendant no. 11 has made specific averment that
there are other occupants/tenants/sub-tenants under him. From the said
contention of the defendant no. 11, I do not find that defendant no. 11 had
made any collusive defence to facilitate the landlord to obtain an eviction
order against him. Had the defendant no. 11 any intention to collude with
the landlord he would not have made such bold statements disclosing the
factum of sub-tenancies under him. However, it appears that the defendant
no. 11, in spite of such disclosure, did not take the plea of overvaluation or
the issue that the Hon'ble Court had no pecuniary jurisdiction. It is settled
law that the plea of lack of pecuniary jurisdiction is required to be taken
before framing of issues. But that being not done, such a plea cannot be
taken during hearing of an application under Section 47 of the Code of Civil
Procedure.
37. Section 21 of Code of Civil Procedure is quoted herein below:-
"Section 21. Objections to jurisdiction.
[(1)] No objection as to the place of suing shall be allowed
by any Appellate or Revisional Court unless such objection
was taken in the Court of first instance at the earliest
possible opportunity and in all cases where issues are
settled at or before such settlement, and unless there has
been a consequent failure of justice.
[(2) No objection as to the competence of a Court with
reference to the pecuniary limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the
earliest possible opportunity, and, in all cases where
issues are settled, at or before such settlement, and
unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing
Court with reference to the local limits of its jurisdiction
shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the executing Court at
the earliest possible opportunity, and unless there has
been a consequent failure of justice.]"
38. Moreover, Section 99 of the Code is also reproduced herein below:-
"Section 99. No decree to be reversed or modified for
error or irregularity not affecting merits or jurisdiction. -
No decree shall be reversed or substantially varied, nor
shall any case be remanded, in appeal on account of any
misjoinder [or non-joinder] of parties or causes of action or
any error, defect or irregularity in any proceedings in the
suit, not affecting the merits of the case or the jurisdiction
of the Court .
[Provided that nothing in this section shall apply to non-
joinder of a necessary party.]"
39. The case law reported in Kiran Singh & Ors. (supra) cited by the
learned advocates of the applicants shows that the Hon'ble Supreme Court
has dealt with the relevant provisions of law in paragraph 7 which is quoted
herein below:-
"7. Section 11 enacts that notwithstanding anything in
Section 578 of the Code of Civil Procedure an objection
that a court which had no jurisdiction over a suit or appeal
had exercised it by reason of overvaluation or
undervaluation, should not be entertained by an appellate
court, except as provided in the section. Then follow
provisions as to when the objections could be entertained,
and how they are to be dealt with. The drafting of the
section has come in--and deservedly--for considerable
criticism; but amidst much that is obscure and confused,
there is one principle which stands out clear and
conspicuous. It is that a decree passed by a court, which
would have had no jurisdiction to hear a suit or appeal but
for overvaluation or undervaluation, is not to be treated
as, what it would be but for the section, null and void, and
that an objection to jurisdiction based on overvaluation or
undervaluation, should be dealt with under that section
and not otherwise. The reference to Section 578, now
Section 99 CPC, in the opening words of the section is
significant. That section, while providing that no decree
shall be reversed or varied in appeal on account of the
defects mentioned therein when they do not affect the
merits of the case, excepts from its operation defects of
jurisdiction. Section 99 therefore gives no protection to
decrees passed on merits, when the courts which passed
them lacked jurisdiction as a result of overvaluation or
undervaluation. It is with a view to avoid this result that
Section 11 was enacted. It provides that objections to the
jurisdiction of a court based on overvaluation or
undervaluation shall not be entertained by an appellate
court except in the manner and to the extent mentioned in
the section. It is a self-contained provision complete in
itself, and no objection to jurisdiction based on
overvaluation or undervaluation can be raised otherwise
than in accordance with it. With reference to objections
relating to territorial jurisdiction, Section 21 of the Civil
Procedure Code enacts that no objection as to the place of
suing should be allowed by an appellate or revisional
court, unless there was a consequent failure of justice. It is
the same principle that has been adopted in Section 11 of
the Suits Valuation Act with reference to pecuniary
jurisdiction. The policy underlying Sections 21 and 99 CPC
and Section 11 of the Suits Valuation Act is the same,
namely, that when a case had been tried by a court on the
merits and judgment rendered, it should not be liable to be
reversed purely on technical grounds, unless it had
resulted in failure of justice, and the policy of the
legislature has been to treat objections to jurisdiction both
territorial and pecuniary as technical and not open to
consideration by an appellate court, unless there has been
a prejudice on the merits. The contention of the appellants,
therefore, that the decree and judgment of the District
Court, Monghyr, should be treated as a nullity cannot be
sustained under Section 11 of the Suits Valuation Act."
40. The factual matrix of case law of S.P. Chengalvaraya Naidu (dead) by
Lrs. (supra) did not tally with the present case in hand. In the said case law
the fact of the case was that the respondent was working as a clerk with one
C, who had obtained a decree against the appellants. In execution of the
decree the respondent purchased at court sale the properties belonging to
the appellants on behalf of C. Later, by a registered deed the respondent
relinquished all his rights in the property in favour of C. Meanwhile the
appellants judgment-debtors paid the total decretal amount to C. All the
same the respondent without disclosing his execution of the release deed in
favour of C, filed a suit for partition of the property and obtained a
preliminary decree. Thereafter he filed an application for a final decree. It
was only at the hearing of this application that the appellants came to know
about the release deed and want of locus standi of the respondent. They
therefore, challenged the application on the ground that non-disclosure of
the vital document by the respondent vitiated the proceedings and as such
the preliminary decree was obtained by playing fraud on court and was a
nullity. The trial court accepted the contention and dismissed the
application for final decree.
41. It appears that in the case in hand the allegations that the landlord has
overvalued the suit for bringing the matter within the pecuniary jurisdiction
of the High Court cannot be equated with the term 'fraud'. Particularly,
when the record shows that the applicants had the opportunity to discover
the pendency of the eviction suit since they were aware of the appointment
of receiver for collection of rent. However, it is very aptly observed by the
Hon'ble Supreme Court in Ittyavira Matthai (supra) that "it is well settled
that a court having jurisdiction over the subject matter of the suit and over the
parties thereto, though bound to decide right may decide wrong and that even
though it decided wrong it would not be doing something which it had no
jurisdiction. It had the jurisdiction over the subject matter and it had
jurisdiction over the party and therefore merely because it made an error in
deciding a vital issue in the suit, it cannot be said that it has acted beyond its
jurisdiction."
42. In the case in hand, the Hon'ble Court had the subject matter
jurisdiction and the plea of lack of jurisdiction was not taken at the
appropriate time and therefore it is difficult for the present executing court
to hold that fraud has been committed upon the Hon'ble Court.
43. However, the present application under Section 47 CPC has prayed for a
declaration to the effect that the decree dated March 20, 2015 is a non-
executable one and hence the said suit was not maintainable. The record
shows that a compromise decree was passed in the appeal which was
preferred against the eviction decree dated March 20, 2015 and therefore
the said trial court's decree has been merged with the decree of the appellate
court. The applicant's prayer for declaring the decree dated 20.03.2015 as
inexecutable has become infructuous since the decree dated 20.03.2015 has
no separate existence in view of the appellate court's compromise decree.
44. The issue that the landlord has overvalued the suit only for bringing the
matter within the jurisdiction of the Hon'ble Court has been elaborately
argued on behalf of the applicants. After considering the cited relevant
judicial decisions in this regard it appears that the Hon'ble High Court had
the subject matter jurisdiction. However, pecuniary jurisdiction to entertain
the suit for possession/eviction only if the suit valuation is ten lakhs or
more. In this regard the applicants have submitted that as the rent for the
premises is Rs. 4000/- per month, the suit valuation would come to Rs.
48,000/- per annum.
45. In this regard, the relevant provisions of West Bengal Premises Tenancy
Act, 1997 has been brought to the notice of the court. The relevant plaint of
the landlord shows that it has claimed arrear rent from 1984 onwards at the
rate of Rs. 4000 per month along with interest and mesne profits and as a
result of which the suit valuation comes to more than Rs. 15,00,000/-
(Fifteen lakhs). However, as I have already discussed that though the over
valuation may be an irregularity, the same cannot be termed as fraudulent
activity particularly when the Hon'ble Court had the subject matter
jurisdiction and particularly when the applicants did not appear and contest
the suit in spite of having notice of the fact that the joint receiver was
appointed by the Hon'ble Court to collect rent in connection with the suit
premises. In view of the judicial decisions in Rupchand Gupta's case
(supra), Balvant N. Viswamitra's case (supra), Tarun Kumar Ghosh
(supra) the law is well settled on the point that sub-lessees are not
necessary parties. The factual matrix of the instant case also points out that
notice under Section 16 of the West Bengal Premises Tenancy Act, 1956 was
not served upon the superior landlord by the 19 applicants and others and
as a result in view of Sudhir Ranjan Paul (supra) we can say that the
landlord is not bound to serve notice upon such sub-tenants. In view of the
above case laws i.e. Rupchand Gupta's case (supra), Balvant N.
Viswamitra's case (supra), Tarun Kumar Ghosh (supra), I find that the
case law of Mehta Suraya and Etc. (supra) is not binding upon this court.
The judgment of EIH Limited (supra) deals with whether the municipal tax
and commercial surcharge can constitute rent for the purpose of Section 3
of West Bengal Premises Tenancy Act, 1997. In this case in hand the said
question was not raised. The alleged over valuation was done on the amount
of arrear rent claimed from 1984 along with interest and mesne profit.
However, the judicial decision reported in Ittyavira Mathai (supra) has
clearly laid down that even if a court having subject matter jurisdiction
decides a case, which is allegedly barred by limitation, such plea of
limitation can be ignored in the subsequent execution proceedings.
46. In view of the above discussion as aforesaid I find that the present
application being GA 8 of 2024 is liable to be dismissed. Accordingly, the
same is dismissed but without any costs.
47. Copies of this Judgment, if applied for, be supplied to the parties on
compliance of all necessary formalities.
(APURBA SINHA RAY, J.)
Later
1. After passing of the above judgment and order, learned counsel for the
applicant has prayed for stay of operation of the judgment and order dated
21.11.2025 for some time. Learned counsel for the decree holder opposes
the prayer.
2. After considering the relevant materials and submissions, the prayer
for stay of operation of the judgment and order dated 21.11.2025 is refused.
(APURBA SINHA RAY, J.)
