A sub-lessee is not a necessary or proper party in a suit for eviction against a lessee where the lease has been terminated by notice and efflux of time, and collusion between the lessor and lessee cannot be inferred from the lessee's failure to incorporate the issue of acquisition of their right under the Thika Tenancy Act in the original written statement and their failure to pray for referring the dispute before the arbitrator despite an arbitration clause.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved and dissatisfied with the order dated February, 24, 2021 passed in Title Suit No. 152 of 2000 by the learned Civil Judge (Senior Division) 2nd court at Howrah, present application under Article 227 of the constitution of India has been preferred. By the impugned order learned court below has been pleased to reject the petitioners application under order 1 rule 10(2) of the Code of Civil Procedure.

2. Petitioner’s case in brief is that the plaintiff/opposite party no. 1 to 8 herein filed aforesaid suit against the defendants /opposite party no. 9 to 13 herein for recovery of khas possession of the suit premises, mean profit and for other reliefs. Defendants/opposite party no. 9 to 13 herein appeared in the said suit and filed written statement coupled with counter claim. In the said suit the petitioner herein filed an application under order 1 rule 10(2) of the code on July, 14th, 2003 praying for addition of the petitioner in the category of defendants in the said suit. Plaintiffs/opposite party no. 1 to 8 filed written objection against the said application. Learned Court below by the impugned order has been pleased to reject the said application.

3. Being aggrieved by the said order petitioner submits that the Trial Judge erred in rejecting his said application while he failed to appreciate that the petitioner was inducted as ‘Ghar Bharatia’ in respect of four godowns made with brick wall and tile or tin shade at the suit property, at a monthly rent of Rs. 1320/-and he has paid rent up to the month of May 2003 to M/s. Empress of India Jute Press, whose name has been recorded as Thika tenant with regard to the suit property. He further submits that the court below failed to appreciate that the property in question being Thika property, the suit is not maintainable before the said forum and suit is barred under section 21 of the West Bengal Thika Tenancy (Acquisition and Requisition) Act 2001.

4. Learned Counsel appearing on behalf of the petitioner strenuously argued that the defendants /opposite party no. 9 to 13 are acting in collusion with the plaintiff/opposite party no. 1 to 8 in order to evict the petitioner herein which is reflected from the fact that collusive written statement has been filed supporting the case of plaintiff and in view of such fact it is necessary that the present petitioner be added as a party/defendant in the suit in order to enable the court to adjudicate the dispute in appropriate manner.

5. He further submits that the court below failed to appreciate that the petitioner’s presence in the suit is required for determining the real question in controversy, in as much as, the suit cannot be decided in the absence of the petitioner herein and his interest will be seriously prejudiced if he is not added as a party/defendant in the said suit. His further case is that it is not in dispute that the petitioner is in possession of the suit property and if a decree of eviction is passed in the said suit, which according to the petitioner is a collusive suit, it will affect the petitioner herein without having any opportunity to oppose such eviction before a court of law. He further submits that the observation of Trial Judge that the issue as to whether the defendant/opposite parties are recorded Thika tenants or not and the existence of arbitration clause in the lease deed are questions relating to the interest of plaintiffs/opposite parties and defendant/opposite parties and defendant/opposite parties are the best person to address those question before the court of law, is perverse since the defendant/opposite parties have colluded with the plaintiff/opposite parties and for which the petitioner is required to be added as a party in order to adjudicate the real controversy between the parties. His further case is since the defendants/opposite party No. 9 to 13 herein have colluded with plaintiffs/opposite party no. 1 to 8 herein, the petitioner would be se