A sub-lessee is not a necessary party in a suit for recovery of possession of the suit premises filed by the landlord against the lessee unless the decree for possession is obtained by fraud or collusion or the sub-lessee has an independent right in respect of his tenancy.

( 1 ) THIS Rule is directed against order No. 7 dated 11-9-1975 passed by the learned Judge, 9th Bench, City Civil Court, Calcutta in a suit for recovery of possession of the suit premises. By the impugned order the petitioner's petition under Order 1, Rule 10 of C. P. Code was dismissed. The case in plaint is as follows :--

( 2 ) THE suit premises being flat No. 3 of 1st floor rear side of 184, Lenin Sarani, Calcutta hereinafter referred to as the said premises was taken on lease by Chattar Singh Dugar from Ajoy Krishna Daw on the basis of a registered lease-deed dated 22nd June, 1963 for a period of 22 years commencing from July 1, 1963 and expiring on June 30, 1965. Chattur Singh died leaving the opposite party No. 3 as his heir and legal representative. Ajoy Krishna also died leaving a will whereby the opposite parties Nos. 1 and 2 were appointed Executors and the probate of the said will was granted in their favour. It was stated that Chattur Singh and/or his heir defaulted in payment of rent and were in heavy arrears in the sum of Rs. 30,600/-as per account set out. It was further stated that under the lease aforesaid, lessee was not to assign, sub-let or part with possession of the premises or part thereof without the written consent of the lessor. In violation of the said terms, the opposite party No. 3 sub-let, assignee or transferred possession of the premises to various companies and firms named including the petitioner without the consent of the opposite parties Nos. 1 and 2 or their predecessor-in-interest. The notice was duly given upon the said opposite party forfeiting the lease and indicating the intention of the lessors to enter the said premises. The said opposite party failed to vacate the premises as required. The present suit was accordingly instituted by the opposite parties Nos. 1 and 2 against the opposite party No. 3 for recovery of possession of the suit premises.

( 3 ) IT appears that an application was filed in the said suit by the petitioner before us stating that under the terms of the lease Chattur Singh was entitled to use the suit premises for office purposes and also to accommodate therein company or firm in which he himself or his associates were interested without in any way affecting the terms of the said lease. It was further stated that the petitioner was accommodated on the basis of the right referred to above and Chattur Singh was interested in the petitioner firm as his relative was a partner therein. Further, after the death of Chattur Singh the petitioner paid all amount of rent on behalf of his heir and rent upto September 1970 was cleared. Thereafter though the rent was tendered within the prescribed time the said opposite parting refused to accept the same from the petitioner. It was further stated that the defendant opposite party No. 3 did not enter appearance in the suit and was acting in collusion with the plaintiffs to create trouble on account of family dispute. The suit was also fixed for ex parte hearing and in these circumstances the petitioner made an application for being added as party defeadent to the suit and to contest the same by filing a written statement.

( 4 ) THIS petition was rejected by the impugned order as according to the learned Judge the petitioner was not at all accessary party in a suit simpliciter for eviction and be could file a separate suit for appropriate relief. The rule is against this order.

( 5 ) MR. Sakti Nath Mukherjee, learned Advocate appearing for the petitioner sub-lessee contended that the petitioner was a necessary party in the suit and accordingly the trial Court failed to exercise jurisdiction in declining him to be added as a party in the suit. In support, he referred to the decision in South Asia Industries Pvt. Ltd. v. Sarup Singh,. In this case it appears that the respondent's predecessor leased the premises to Alien Berry and Co. (Calcutta) Ltd. , which company transferred the lease to the appellant. On the