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CASE NO.:

Appeal (civil) 2565 of 2001

PETITIONER:

Ruma Chakraborty

RESPONDENT:

Sudha Rani Banerjee & Anr.

DATE OF JUDGMENT: 04/10/2005

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

The appellant, who is an unsuccessful intervenor in both the courts below, is the

divorced wife of the recorded sole tenant (second respondent herein) who is also the

sole defendant in the suit filed by the first respondent herein \026 Sudha Rani Banerjee.

The instant appeal is against the judgment and order dated 26.09.2000 passed

by the High Court of Calcutta in C.O. No. 582 of 2000 rejecting the appellant’s

application for being added as a party defendant under Order 1 Rule 10 (2) of the

C.P.C. The High Court concurred with the judgment and order dated 02.02.2000

passed by the IIIrd Civil Judge, Alipore. The High Court rejected the plea of the

appellant that she is directly interested in the tenanted suit premises by way of her

entitlement towards maintenance which includes residence as per the Hindu Adoptions

and Maintenance Act, 1956.

The facts of the case, in brief, are as follows:-

As already stated the action arises out of a suit for ejectment filed on 28.03.1992

on the ground of default, subletting without the prior written consent of the contesting

first respondent herein (plaintiff landlady). Her case, very briefly, is that after dissolu

tion

of the marriage, the appellant is no longer a part of the proforma respondent’s family

having the status of a rank outsider/stranger and she was in illegal occupation of the

suit premises in contravention of the statutory provisions of the West Bengal Premises

Tenancy Act, 1956 (hereinafter referred to as ’the Act’). The proforma

respondent/husband has admittedly effaced himself from the suit premises long prior to

the institution of the suit retaining any control of suit premises. It is the case of the

contesting respondent that the appellant is in illegal occupation without the prior written

consent of the landlady and, therefore, has attracted the provisions of Section 13 (1)(a)

of the Act and has become liable for eviction.

The sole defence taken in the suit is that the son and daughter are entitled to the

tenancy right and virtually can step into the shoes of the recorded tenant who is still

alive and contesting the suit who is long back walked out of the suit premises parting

with exclusive legal possession to the appellant.

The appellant filed application under Order 1 Rule 10 (2) C.P.C. for being

impleaded as a party defendant before the Civil Judge, Alipore on 17.12.1999 almost 8

years after the institution of the suit. The Civil Judge dismissed the appellant’s

application on 02.02.2000. The appellant, thereafter, moved the High Court in civil

revisional jurisdiction and the High Court, by its judgment and order dated 26.09.2000,

rejected the appellant’s application concurring with the finding of the courts below and

finding no infirmity therein. Being aggrieved, the appellant has preferred the above

appeal in this Court.

We heard Ms. Kamini Jaiswal, learned counsel for the appellant and Mr. Rana

Mukherjee, learned counsel for the respondents.

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Learned counsel for the respective parties took us through the pleadings,

annexures and the orders passed by the courts below and other relevant records.

Ms. Kamini Jaiswal, learned counsel for the appellant, made the following

submissions:-

1) that the appellant being the divorced wife continues to enjoy the status

akin to that of licensee under her husband in respect of tenancy of her

husband pursuant to the provisions of Sections 3 and 18 of the Hindu

Adoptions and Maintenance Act, 1956;

2) that by precluding the appellant from