1. This is a Rule under sec. 115 of the Code of Civil Procedure and it is directed against two orders made by the Presidency Small Cause Court Judge, dated the 15th June, 1950, and the 7th August, 1950.
2. It appears that Opposite Parties Nos. 1 and 2 started a proceeding for recovery of possession against Opposite Party No. 3 under sec. 41 of the Presidency Small Causes Court Act in respect of one room in the first floor of premises No. 3, Baisakh Street, Calcutta, and this proceeding was registered as Suit No. 12910 of 1949.
3. On the 15th June, 1950, when the suit was taken up for hearing, the Petitioner filed an application to the Court alleging that the Plaintiffs and the Defendant of the aforesaid suit were colluding with each other for the purpose of evicting the Petitioner who, according to his allegation, was a sub-tenant under Opposite Party No. 3. The Court rejected this application on the ground that it was premature, and the Court observed that the point raised by the Petitioner would arise and the Petitioner might apply for relief when the Plaintiffs want to take delivery of possession on the basis of the order for possession that might be passed by the Court. The application filed by the Petitioner was accordingly rejected and the Court proceeded to make an order for delivery of possession.
4. Later on, when the Plaintiffs went to take delivery of possession on the basis of the aforesaid order, the Petitioner offered resistance and the Plaintiffs thereupon applied to the Court for police help under the provisions of Or. 21, r. 97 of the Code of Civil Procedure and to this application the Petitioner filed an objection alleging that he was a statutory sub-tenant under the provisions of sec. 11 (3) of the West Bengal Premises Rent Control Act, 1948. The Court rejected the objection filed by the Petitioner by an order dated the 7th August, 195O, relying upon a Division Bench judgment of this Court in Civil Rule No. 226 of 1949. Against these two orders the Petitioner has obtained the present Rule.
5. The second order is really concluded by the judgment of the Division Bench referred to above and the remedy of the Petitioner is not by way of an application to the Presidency Small Causes Court Judge. But with regard to the first order, dated the 15th June, 1950, it has been argued by the learned Advocate appearing for the Petitioner that the Court was absolutely wrong in rejecting the application on the ground that it was premature.
6. In my opinion, there is considerable force in this argument. In his application which was filed on the 15th June, 1950, the Petitioner alleged that the Plaintiffs and the Defendant of that suit were colluding with each other for the purpose of ejecting the Petitioner. In that view of the matter and in view of the fact that the Defendant of that suit was not appearing in Court on the date when the suit was taken up for hearing, it was necessary for the Court to give the Petitioner an opportunity of filing a written statement by adding him as a party to the suit. It is to be noticed that the tenant Defendant did not also file any written statement to the suit. In my opinion, in the special facts of this case it was necessary for the Court to add the Petitioner as a party Defendant in the suit in order to effectually and completely adjudicate upon all the questions involved in the suit. Sec. 11 (3) of the West Bengal Premises Kent Control Act, 1948, gives the sub-tenant a legal right. Whether or not the Petitioner in the present case will be able to prove that he has a right under sec. 11 (3) of the West Bengal Premises Rent Control Act, 1948, win have to be decided upon the evidence which will be adduced by him after he is added as a party Declerant in the suit:
In my opinion, the Court exercised its jurisdiction with material irregularity in throwing out the Petitioner's application, dated the 15th June, 1950, on the ground that it was premature.
7. The Rule is accordingly made absolute; the order of the Court, dated the 15th June, 1950, is set aside and the suit is ordered to be re-tried after adding the Petitioner as a party to the suit and allowing him an opportunity to file a written statement.
8. There will be no order as to costs in this Court. Further costs will abide the result.