Babar Ali Pramanik and others Vs. Mosar Ali Pramanik and others, 45 DLR (AD) (1993) 120

Case No: Civil Appeal No. 52 of 1992

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Akram Hossain Amin,,

Citation: 45 DLR (AD) (1993) 120

Case Year: 1993

Appellant: Babar Ali Pramanik and others

Respondent: Mosar Ali Pramanik and others

Subject: Procedural Law,

Delivery Date: 1993-2-7

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MH Rahman J
ATM Afzal J
Latifur Rahman J.
 
Babar Ali Pramanik and others
……………………Petitioners-Appellants
Vs.
Mosar Ali Pramanik and others
…………...............Plaintiff-Respondents
 
Judgment
February 7th, 1993.
 
Code of Civil Procedure (V of 1908)
Order I Rule 10
Only lessees in possession are necessary parties in a suit against the lessor.
 
Cases Referred to-
Waliullah Munshi Vs. Lodu Mia 38 DLR (AD) (1986) 308; Nur Mohammad Vs. Ashraf Ali 39 DLR 325 and Parimal Majumdar Vs. A Sobhan, same volume 352; AIR 1953 (SC) 73 (M/S I & M Ltd. Vs. Pheroze Fram roze).
 
Lawyers Involved:
N H Khandkar, Advocate-on-Record- For the Appellants.
Akram Hossain Amin, Advocate-on -Record- For the Respondent No. 1.
Not Represented -Respondent Nos. 2-5.
 
Civil Appeal No. 52 of 1992.
(From the Judgment and Order dated 17 November, 1991 passed by the High Court Division, Dhaka in Civil Order No. 7174 of 1991).
 
JUDGMENT
 
ATM Afzal J:
 
This appeal by leave is from an order, Civil Order No. 7174 of 199 1, dated November, 1991 passed by a Division Bench of the High Court Division, Dhaka summarily rejecting the appellants' application under section 115 of the Code of Civil Procedure filed against the order dated 9.10.90 passed by the Subordinate Judge, Natore refusing to add the appellants as defendants in OC Suit No. 19 of 1987.
 
2. Material facts of the case are, that respondent No. 1 as plaintiff instituted the aforesaidsuit against the Government of Bangladesh (represented by the Deputy Commissioner, Natore) and other officers, respondent Nos. 2-5, for declaration of his fide to the suit land alleging inter alia, that he had obtained pattan of the suit land from its original owner, Shree Manindra Maitra, on 24.9.1350 BS at a yearly rent of Tk. 25.00 and was in possession since then by paying rents, etc., that while the plaintiff was in peaceful possession of the "Kha" schedule land he was served with notice dated 20.5.78 from the office of the Sub‑Divisional Officer, Natore to show cause why the suit land should not be declared as vested and non-resident property in DP case No. 33 of 1978, that the plaintiff filed OC Suit No. 630 of 1979 challenging the said proceeding in the court of the Assistant Judge, Natore, proceeded with the said suit till 2.2.1983, then withdrew the same with liberty to sue afresh and thereafter filed the present suit.
 
3. On 15.9.90 the appellants filed an application under Order 1 rule 10 CPC for adding them as defendants in the said suit stating, inter alia, that the landlords of the suit land, Bhuban Mohan Maitra and others, having left for India in 1965 the suit land vested in the Government, that the appellants and local people had been possessing the suit land comprising mostly of tank, Abadi Bhita, Idgah, etc, for more that 12 years, that they had taken lease of the suit land from the Government after the aforesaid vesting in VP Case No. 33 of 1978 and are in possession and that as such they arc necessary parties.
 
4. The learned Subordinate Judge by order dated 9.10.90 rejected their application holding that the appellants were lessees for 1389 BS only and there was no paper to show that they were present lessees also.         
 
5. The appellants did not take any step against the said order until 19.6.91 when an application, said to be one for correction of the aforesaid order, was filed in the same Court. Besides, reiterating that the appellants are lessees in possession under the aforesaid VP Case, it was stated further in that application that in the earlier suit brought by the plaintiff, OC suit No. 630 of 1979, for the self same land, the appellants got themselves added as defendants and contested the suit, that the plaintiffs' prayer for injunction was refused in that suit both by the trial Court and in appeal, that the present suit was filed without making them defendants and their application for addition of party was rejected on 9.10.90, that the Government lawyer was not taking proper steps in the suit, that the plaintiff was trying to obtain a decree by adopting various devices and that the appellants were not being able to defend their interest without being added in the suit causing serious prejudice to them.
 
6. The said application was ultimately withdrawn and the High Court Division was moved in revision against order dated 9.10.90 after more than one year in which the impugned order was passed. In rejecting the revisional application summarily, the High Court Division observed that the lease of the appellants had admittedly expired when the present suit was instituted in 1987 and as such the decisions relied upon by the appellants had no manner of application.
 
7. Leave was granted to consider the submission that the statements made in the application dated 19.6.91 (Annexure C to the revision petition) were not considered by the High Court Division which are very material to show that the appellants are necessary parties in the suit and that the decisions cited were not properly appreciated.
 
8. Mr. NH Khandkar, learned Advocate‑on-­Record, for the appellants, drew our attention to the statements made in the application dated 19.6.91(briefly reproduced above) and submitted that since the appellants were made parties in the earlier suit, OC Suit No. 630 of 1979, on the assertion that they were lessees in possession under VP Case No. 33 of 1978, they are necessary parties in the present suit so. That leesees in possession are necessary parties in a suit against the lessor, Mr. Khandkar referred to and relied upon the case of Wallullah Munshi Vs. Lodu Mia 38 DLR (AD) 308, Nur Mohammad Vs. Ashraf Ali 39 DLR 325 and Parimal Majumdar Vs. A Sobhan, same volume 352. He also cited AIR 1953(SC) 73 (M/S 1 & M Ltd. Vs. Pheroze Fram roze).
 
9. Neither in the petition referred to above nor in any other petition the appellants have asserted that they are continuing as lessees upon renewal of lease by the Government and payment of rent even after institution of the present suit in 1987. The learned Subordinate Judge found that the appellants were lessees for only one year, 1389 BS and there was no paper in support of their claim of present lease. None has admittedly been produced and Mr. Khandkar has offered an explanation that due to the pendency of the suit the vested property authority have kept the renewal of the lease pending and so the rents are not being realized from the appellants although they are continuing in possession. It is difficult to accept the unfounded submission of the learned Advocate because there was no restraint upon the Government in giving usual settlement and realizing rent from the lessees. Mr. Akram, Hossain Amin, learned Advocate‑on­-Record for the pliantiff‑respondent, has submitted that whereas in the earlier suit the Government admitted that the appellants were lessees in respect of the suit land at that time there is no such statement in the written statement filed by the Government in the present suit. The claim of the appellants that they are in possession as lessees has, therefore, no basis.
 
10. The decisions relied upon by Mr. Khandker do not apply in the facts of the present case. In the cases reported in 38 DLR and 39 DLR as above, the decisions proceeded on the basis that the party was lessee in possession. Further in the Appellate Division case and in the case of Nur Mohammad, (supra) the plaintiff himself made the lessees defendants in the suit but subsequently got their names struck off by filing application. In the present case there being nothing on record to show that the appellants continued as lessees under the Government those decisions will be of no avail to them. The Indian Supreme Court case has no relevance in the facts of the present case where it has been held that a sub-tenant, though not a necessary party in the suit between the landlord and tenant, is a proper party and his joinder in the suit cannot alter the nature of the Suit.
 
11. The allegation that the Government is not taking interest in the suit does not seem to be correct because it is found that not only the claim of the plaintiff has been repudiated by the Government in its written statement, but the P.W.s. examined so far have been cross‑examined on behalf of the defendants.
 
12. In the circumstances of the case we do not think that any illegality has been committed by the High Court Division in rejecting the revisional application of the appellants.
 
The appeal is, accordingly, dismissed without any order as to cost.
 
Ed.