A sub-lessee is not bound by a decree passed against the lessee if the sub-lessee can show that the judgment was vitiated by fraud or that the lessee collusively suffered the decree to be passed against him.

Chatterjee, J.

This appeal can be disposed of on a very short point. The appellant admittedly was inducted as a tenant by the opposite party No.2 Smt. Archana Poddar in respect of one room on the ground floor measuring more or less 580 sq. ft. at premises No.42A, Shakespeare Sarani, P. S. Park Street, Calcutta-700 017 (hereinafter referred to as the "said premises") at a rental of Rs. 7,000/- per month. The respondent No.1, however, is the landlord-owner of the suit premises and the respondent No.2 who is very near relation was inducted as a tenant in the said premises under him. The suit was filed for eviction of the respondent No.2 by the respondent No.1. The suit has been decreed. No appeal has been preferred by the tanant/respondent No.2. When the decree was going to be executed, the appellant filed an application under Order 21 Rules 99, 100 and 101 read with Section 151 of the Code of Civil Procedure, 1908 for a declaration that the appellant was a lawful sub-tenant in the suit premises and for other incidental reliefs. The application was based mainly on the ground of collusion and fraud. Parties adduced evidence on the question of collusion. The trial Court however, rejected the application filed by the appellant only on the ground that in view of the admitted fact that no notice of sub-tenancy was ever served under Section 16 of the West Bengal Premises Tenancy Act, (hereinafter referred to as "the Act"), question of considering the case of collusion becomes academical and, therefore, the application on the aforesaid ground as alleged must be dismissed. In the said judgment, the learned Judge observed as follows ;-

"I have already stated that the fate of this case hinges upon the sole question as to whether the sub-tenancy was created by the tenant in favour of the petitioner with the previous consent in writing by the landlord and that question having been admitted in the negative form by an the parties that is to say that the sub-tenancy was created without any previous consent in writing of the landlord, discussions of other points as to whether the ejectment suit was collusive one or not care redundant all questions relating to fraud, collusion could have been considered had the petitioner complied with the provisions of Section 16 of the West Bengal Premises Tenancy Act and the petitioner having not complied with the same it cannot claim any lawful right of raising those points in this Misc. Case." (Emphasis supplied)

2. From the aforesaid observation of the trial Court, it is, therefore, an admitted position that the trial Court had not gone into the question of fraud and collusion between the landlord and tenant viz., the decree holder/respondent No.1 and the tenant/respondent No.2, and the appellant has made out a case of fraud and collusion denied by the decree holder/respondent No.1. Both the parties adduced evidence in support of their respective cases relating to the case of fraud and collusion. Let us, therefore, consider whether only on the ground of non-service of notice by the sub-tenant under Section 16 of the West Bengal Premises Tenancy Act, the application filed by the appellant under Order 21 Rules 99 and 101 of the Code of Civil Procedure could be rejected by the trial Court without any finding on the question of fraud and collusion. In our view, the trial Court was not justified in rejecting the application of the appellant without going into the question of fraud and collusion. In the case of (1) Sailendra Nath Bhattacharyya v. Bijon Lal Choudhury, 49 CWN 133, Mukherjee, J. (as His Lordship then was) sitting in the Division Bench laid down that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, whether the sub-lease was created before or after the suit, if the eviction is based on a ground which determines the sublease also, unless the decree is obtained by fraud or collusively suffered. At page 141 of the aforesaid Division Bench decision of