Important point
If a sub-tenancy is created without requisite consent in writing, landlord can file petition for eviction of tenant and he is not required to implead sub-tenant unless sub-tenant has given the notice of creation of tenancy as required under west Bengal Premises Tenancy Act, 1956. Such sub-tenant cannot resists execution on the ground that he was not made a party & that decree is obtained by collusion & fraud.
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Judgment

Santosh Hegde, J.

Leave granted.

2 . The appellant herein who is the owner of one room in ground floor of premises No.42-A, Shakespeare Sarani, P.S. Park Street, Calcutta, had let out the said premises to Smt. Archana Poddar, respondent No.1 herein, for carrying on the business under the name and style of M/s. A.K. Enterprises. It is stated that the said tenant had inducted M/s. Paspur Travels Pvt. Ltd., the second respondent herein, as a sub-tenant in contravention of the provisions of the West Bengal Premises Tenancy Act, 1956 (for short the Act ). On this basis, the appellant instituted Ejectment Suit No. 144/93 against the first respondent which came to be decreed on 22.4.1997 by the Vth Bench of the City Civil Court, Calcutta. The allegation in the said suit was that the sub-letting of the premises to third party like the second respondent without the knowledge and consent of the appellant being contrary to the provisions of the Act, the appellant is entitled to eviction of the first respondent from the suit premises. At this stage, it is necessary to note that the second respondent herein was not made a party to the said suit for ejectment.

3. Pursuant to the decree obtained by him, the appellant filed Ejectment Execution Case No.6 5/97 before the City Civil Court, Calcutta in which the second respondent filed an application numbered as Misc. Case No.2433/98 purporting to be under Order XXI, Rules 99, 100 and 101 read with Section 151 of the Code of Civil Procedure, praying for setting aside the decree passed in the abovesaid ejectment suit, and also for injunction restraining the appellant from interfering with its possession of the suit property. In that application it was contended that the tenancy in its favour was with the consent of the appellant and the eviction decree was obtained by fraud and collusion behind the back of the second respondent. The trial court after perusing the evidence adduced and considering the arguments of the parties held that the appellant had not consented to creation of a sub-tenancy as also the second respondent herein had not intimated the landlord of it being inducted as a sub-tenant within the time stipulated in the Act or thereafter, therefore, the second respondent did not have the right to be impleaded as a party in the original eviction suit. On this basis, though it did not go into the question of collusion and fraud in detail, it still came to the conclusion that all questions relating to fraud and collusion could have been considered had the second respondent complied with the provisions of Section 16 of the Act, and the second respondent having not complied with the same, it cannot claim any lawful right which it claimed in the Miscellaneous Case. It also incidentally held that it cannot be said that there was a collusion between the appellant and the first respondent herein.

4. Being aggrieved by the said order of the executing court, the second respondent

herein preferred an appeal before a Division Bench of the High Court at Calcutta in FMA No. 1369 of 2000. The High Court without going into the statutory requirement of acquiring a tenancy right by a sub-tenant came to the conclusion that since the second respondent had raised the question of fraud and collusion specifically in its objections and the appellant had denied the same, the executing court was duty bound to have decided this question in accordance with law and it could not have rejected the application of the second respondent on the ground that the said question had become academic since the second respondent had not complied with the statutory requirement of the provisions of the Act. On this basis, it allowed the appeal and remanded the matter to the executing court to decide the question whether there was any collusion and fraud in the matter of decreeing the suit for eviction filed by the appellant against respondent No.1. It is against this judgment and order of the High Court that the a