A subtenant who does not come within sub-section (2) of section 13 of the West Bengal Premises Tenancy Act cannot be added in a suit for eviction of a tenant.

BHASKAR BHATTACHARYA, J.

C.O. No. 1381 of 1988

1. This revisional application under section 115 of the Code of Civil Procedure is at the instance of a plaintiff in a suit for eviction of a tenant and is directed against Order No. 13 dated April 27, 1988 passed by the learned trial Judge, allowing an application under Order 1 Rule 10 of the Code of Civil Procedure filed by the opposite party no.2 for being added as party defendant.

2. The petitioner herein filed a suit being Title Suit No. 329 of 1987 in the 2nd Court of Munsif, Alipore for eviction of the opposite party no.1 on the ground of violation of clauses (m), (o) (p) of section 108 of the Transfer of Property Act and also on the ground that the opposite party no.1 has illegally sublet the property in favour of one M/s. Calcutta Salaine.

3. In such a suit, the opposite party no.2 came forward with an application under Order 1 Rule 10 of the Code thereby alleging that he was a tenant of the property and was in possession thereof.

4. The petitioner opposed such prayer thereby contending that the possession of the opposite party no.2 was that of a trespasser and that he had no right whatsoever.

5. The learned trial Judge by the order impugned herein has allowed the prayer of addition. The only reason assigned by the learned trial Judge is that in the fact of the case the opposite party no.2 should be given opportunity to contest the case.

6. Being dissatisfied, the plaintiff has filed the instant application.

7. At the time of hearing of this application none appeared for the petitioner but Mr. Banerjee, the learned counsel appearing for the opposite party no.2 has supported the order impugned and has placed strong reliance upon the decision of a Division Bench of this court in the case of Beni Madhab Mahrotra vs. Howrah Flour Mills Limited & another, 89 CWN 76. He has also relied upon the decision of a learned Single Judge in the case of A.K. Roy vs. J.C. Roychowdhury & another, 86 CWN 151.

8. In the case of A.K. Roy vs. J.C. Roychowdhury & another (supra), a daughter-in-law of a tenant/defendant came up with an application for being added as defendant on the plea that her father-in-law was not the real tenant but her husband was the real one; due to pendency of a matrimonial suit between her husband and herself, neither the father-in-law nor the husband was taking any step. Thus, to safeguard her interest and that of her two minor children she prayed for addition in the suit. The learned trial Judge allowed such prayer. Guha, J did not interfere with the order passed by the learned trial Judge as His Lordship was of the view that for avoiding multiplicity of litigation and for setting at rest all the controversy, the addition was justified. With respect, I am unable to subscribe to the view expressed by His Lordship for the simple reason that even if the husband of the applicant was the real tenant. So long he was alive, the applicant did not acquire any interest in the tenancy and if the husband or the father-in-law decided not to contest or even to surrender the tenancy to the landlord she could not resist dispossession consequent to such surrender. Such being the position, no question of adding such a person or deciding the alleged right arose apart from the fact that the plea taken was foreign to the issues involved in the suit.

9. In the case of Beni Madhab Mahrotra vs. Howrah Flour Mills Limited & another (supra) in a suit for eviction of a tenant on the grounds of default and illegal subletting, the alleged subtenant came up with an application for being added as defendant on the ground that by virtue of a tripartite agreement he became a lawful subtenant and the landlord was in collusion with the tenant in order to evict him at a point when he had already filed a suit for declaration of his title as such and injunction. In such a fact the Division Bench presided over by Anil K. Sen, J (as His Lordship them was) held that effective and complete adjudication of the