Appeal No 172 of 1964
Appeal from the judgment and decree dated July 6 1962 of the Calcutta High Court in Appeal from Original Decree No 213 of 1959
section T Desai B Sen and BP Maheshwari for the appllant
H N Sanyal Solicitor General Ajit Kumar Sen and SN Mukherjee for the respondent No 1
April 15 1964
The judgment of the Court was delivered by DAs GUPTA J
The subject matter of this litigation is a piece of land in the heart of the business centre of the city of Calcutta
This was part of a block of 52 cottahs of land taken on lease on January 21 1950 from the Official Trustee West Bengal by a private limited company Raghuvanshi Private Ltd The lease was a building lease for a period of 75 years commencing from January 21 1950
The lessee was required to complete the construction of a three or four storeyed building on the land within 1O years
In September 1960 Raghuvanshi Private Limited in its turn leased 10 12 cottahs out of the 52 cottahs to a public limited company Land and Bricks Ltd This lease by Raghuvanshi Private Ltd hereinafter referred to as Raghuvanshi in favour of Land  Bricks Ltd hereinafter referred to as Land  Bricks created a monthly tenancy commencing from the 1st October 1950
Land and Bricks in its turn sub let the entire 10 12 cottahs to the present appellant Rupchand Gupta in his business name of Hind Airways
The lease was on the terms as settled by two letters dated August 19 1950 and September 5 1950 between Hind Airways and Land and Bricks
By the terms of the sub lease the sub lessee undertook not to sub let the land to anybody to vacate the land as soon as it was required by Land and Bricks for any purpose and not to construct anything on the land but only to use the open land for garage purpose for motor vehicles
Inspite of this undertaking however the appellant constructed a pacca structure on the land
Land and Bricks protested un successfully and then started proceedings under the Calcutta 762 Municipality Act for demolition of the structures
Those proceedings were also unsuccessful
Land and Bricks it appears also served on the appellant in February 1953 a notice to quit
This was not followed up by any suit in court
But a suit for arrears of rent was instituted by Land and Bricks against the appellant in September 1955 and another in 1957
Consent decrees were passed in both of these suits
It appears that in about May or June 1954 Raghuvanshi was desirous of getting possession of the land it has leased to Land and Bricks
The difficulty was that Land and Bricks having sublet to the appellant was not in a position to deliver possession to its lessor Raghuvanshi until and unless possession was obtained from the appellant
It was in these circumstances that Raghuvanshi determined its lease in favour of Land and Bricks by a notice to quit dated the 11th April 1955
Raghuvanshi then instituted a suit No 3283 of 1955 in the High Court of Calcutta against Land and Bricks for possession of the land
The appellant was not impleaded in the suit and Land and Bricks did not contest it
An ex parte decree was made by the Court in favour of Raghuvanshi on the 11th May 1956
The necessary legal consequences of that decree is that the plaintiff as the sub lessee of Land and Bricks has no right to stay on the land and has become a trespasser
It is to avoid the consequence of that decree that the present suit was brought by Rupchand Gupta
His case is that the decree had been obtained by fraud and collusion between the de fendants in order to injure the plaintiff and to evict the plaintiff from the said premises without any decree being passed against the plaintiffs Both Land and Bricks and Raghuvanshi have been impleaded in the suit Land and Bricks as the first defendant and Raghuvanshi as the second defendant
Both of them denied the allegations of fraud and collusion
The case that the decree was obtained by fraud was given up at the hearing and only the allegation that it was a collusive suit was pressed
The Trial Judge held that there was collusion between defendant No 1 and defendant No 2 in the matter of obtain ing an ex parte decree in suit No 3283 of 1955 and that the plaintiff was not bound by that decree
He gave a declaration that the plaintiff was still a tenant under defendant No 1 and was not liable to be ejected under the ex parte decree
He also ordered the issue of an injunction restraining the defendants from taking any steps in execution of the ex parte decree
On appeal by the defendant No 2 Raghuvanshi the decree made by the Trial Judge was set aside
The learned Judges who heard the appeal came to the conclusion that 763 the plaintiff had failed to prove that the decree in suit No 3283 of 1955 had been procured collusively
So they held that the plaintiff was bound by the decree in that suit
It is against this decree of the appellate Bench of the High Court that the present appeal has been filed by the plaintiff Rupchand Gupta
The only question for decision in the appeal is whether the plaintiff had established his allegation that the ex parte decree had been obtained as a result of collusion between Raghuvanshi and Land and Bricks
The main circumstances on which the plaintiff relied to prove collusion and which according to the learned Judge established his case were these Raghuvanshi and Land and Bricks though distinct entities had the same persons as directors
The construction of building in terms of indenture of lease with Official Trustee was necessarily in the interests of shareholders of Raghuvanshi and so this was in the interest of Land and Bricks also as the main shareholders were the same
The Calcutta Thika Tenancy Act 1949 was a serious impediment in the way of the plaintiff s eviction in any suit by Land and Bricks
So Land and Bricks attempted to get possession of the land by obtaining an order of demolition of structures by proceedings under the Calcutta Municipality Act
When these failed and it was apprehended that a suit for ejectment by Land and Bricks might not succeed against the plaintiff that this device of having a suit by Raghuvanshi against Land and Bricks was decided upon by agreement between Raghuvanshi and Land and Bricks
By arrangement between the two Land and Bricks did not contest the suit and to avoid any risk of any defence being raised by the plaintiff he was not impleaded in the suit at all
All the circumstances taken together justify it was urged by the appellant the conclusion that the defendant No 2 colluded with defendant No 1 to procure the exports decree for the purpose of executing that decree against the plaintiff
One of the simplest definitions of collusion was given by Mr Justice Bucknill in Scott vs Scott1
Collusion may be defined said the learned Judge as an improper act done or an improper refraining from doing an act for a dishonest purpose
Substantially the same idea is expressed in the definition given by Whatron s Law Lexicon 14th Edition p 212
viz Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision 1 1913 Law Rerports Probate Division 52
764 of a judicial tribunal for some sinister purpose
This definition of collusion was approved by the Court in Nagubai Ammal  ors vs B Shamma Rao and ors1
Thus the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it would not necessarily prove collusion
It is only if this agreement is done improperly in the sense that It dishonest purpose is intended to be achieved that they can be said to have colluded
There is little doubt that in the present case Land and Bricks agreed with Raghuvanshi that the suit for ejectment would not be contested
When the suit was instituted Land and Bricks did not contest and the ex parte decree was passed
Raghuvanshi did not implead this appellant in that suit
Can any of these acts viz Land and Bricks agreeing with Raghuvanshi that it would not contest the suit the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be an improper act or improper refraining from an act We do not see how any of these things can be said to be improper
Taking the last action first viz Raghuvanshi s omission to implead the appellant it is quite clear that the law does not require that the sub lessee need be made a party
It has been rightly pointed out by the High Court that in all cases possession of the laid on the basis of a valid notice to quit served on the lessee and does not implead the sub lessee as a party to the suit the object of the landlord is to eject the sub lessee from the land in execution of the decree and such an object is quite legitimate
The decree in such a suit would bind the sub lessee
This may act harshly on the sub lessee but this is a position well understood by him when he took the subleases The law allows this and so the omission cannot be said to be an improper act
Nor is it possible in our opinion to say that the omission of Land and Bricks to contest the ejectment suit was an improper act
It has not been suggested that Land and Bricks had a good defence against the claim for ejectment but did not take it for the mere purpose of helping Raghu vanshi to get possession of the land
Even if it had a good defence we do not think it was bound to take it
It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub lessee was actuated by a dishonest pur pose and consequently was improper
It is not necessary for 1  765 us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub lessee that Land and Bricks had even a plausible defence against Raghuvanshi s claim for ejectment
We have already mentioned the fact that one of the circumstances which the plaintiff claimed showed collusion was that the Calcutta Thika Tenancy Act stood in the way of the plaintiff s eviction of Land and Bricks
It is unneces sary for us to decide whether or not the appellant was a Thika tenant within the meaning of the Calcutta Thika Tenancy Act 1949
If he was that Act would undoubtedly have protected him against eviction by Land and Bricks
That Act could however have no operation in a suit brought by Raghuvanshi against Land and Bricks
It has been held by the High Court of Calcutta that the Thika Tenancy Act was designed to protect the Thika tenant from eviction by his landlord only and not against eviction from any source
Shamsuddin Ahmed vs Dinanath Mullick  ors
 Appeal from Original Decree No 123 of 1957 decided on August 13 1959
The correctness of this view has not been challenged before us
Nor is it the appellant s case that Land and Bricks was a Thika tenant of Raghuvanshi
Obviously this could not be suggested because Land and Bricks never erected any structure at all
See the definition of a Thika tenant in section 2 cl 5 of the Calcutta Thika Tenancy Act 1949
On the materials on the record we are satisfied that there was no defence that Land and Bricks could have raised for resisting Raghuvanshi s claim for ejectment
The crux of the matter is Was this attempt by Raghuvanshi to get possession of the land a dishonest or sinister purpose We are asked by Mr Desai to spell dishonesty out of the fact that the directors of Raghuvanshi and Land and Bricks were common and so the persons who were interested in Land
and Bricks were also interested in seeing that Raghu vanshi had not to suffer for forfeiture of his lease for failure to comply with the covenant to construct a building by 1960
All this may be taken to be true
But we are unable to see how this would make Raghuvanshi s attempt to get possession of the land dishonest or sinister
It is not as if Raghuvanshi did not actually want to get possession of the land but wanted to help Land and Bricks to get possession
It has also to be remembered that the identity of the directors and the identity of the main shareholders do not in any way affect the position that in law and in fact Raghuvanshi and Land and Bricks were distinct and separate entities
It is not even remotely suggested that Raghuvanshi and Land and Bricks were really one and the same person with two names
766 If that had been so there might have been good reason for thinking that it was in an attempt to surmount the obstacle represented by the Calcutta Thika Tenancy Act 1949 that this mode of Raghuvanshi suing Land and Bricks for ejectment was resorted to
Indeed if Raghuvanshi and Land and Bricks were one and the same person possession of Land and Bricks would be possession of Raghuvanshi and a suit by Raghuvanshi to eject Land and Bricks would be meaningless
But that is not the appellant s case
It appears from the High Court s judgment that the plaintiff s counsel made it plain before the court that it was not his client s case that the plain tiff s real lessor was Raghuvanshi Private Ltd and not Land and Bricks Ltd In the present appeal before us also Mr Desai argued on the basis that Land and Bricks and Raghuvanshi were distinct entities and that the lease of Land and Bricks under Raghuvanshi was a real subsisting lease at the time of Suit No 3283 of 1955
In our judgment the appellate Bench of the High Court has rightly come to the conclusion that the plaintiff has failed to establish that the decree in Suit No 3283 of 1955 was procured collusively
The suit was therefore rightly dis missed
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
Respondent No 2 is the lessee of Respondent No 1 and the appellant is the sub lessee
Both the respondents Nos 1 and 2 had the same directors
Respondent No 1 brought a suit against respondent No 2 for eviction in which the appellant was not impleaded as a party
By agreement between the present respondent Nos 1 and 2 that suit was not defended and ex parte decree was obtained in favour of respondent No 1
By virtue of this decree the appellant as a sub lessee of respondent No 2 became a tresspasser and had no right to remain on the land
To avoid this situation the appellant filed a suit to set aside the decree on the ground that it was obtained by collusion
The Trial Judge accepted his contention and gave a direction that the appellant still remained a tenant and directing the defendants in that suit from taking any steps in execution of the ex parte decree
On appeal the trial Court s decree was set aside on the ground that the present appellant had failed to prove that the ex parte decree was obtained collusively
Before this Court the same contentions as in the courts below were raised
Held i The mere fact that the defendant agreed with the plaintiff that if a suit is brought he would not defend it would not necessarily prove collusion
It is only if this agreement is done improperly in the sense that a dishonest purpose was intended to be achieved that they can be said to have colluded
Scott vs Scott
1913 Law Reports Probate Division 52 and Nagubai Ammal  Ors
vs B Shamma Rao   referred to
ii The law allows a landlord to institute a suit against a lessee for the possession of the land on the basis of a valid notification without impleading the sub lessee and the decree in such suit would bind the sub lessee and hence the suit instituted by respondent No 1 in the present case cannot be said to have constituted an improper act
iii The omission of the respondent No 2 to defend the earlier suit was not also an improper act because even if it had a good defence it was not bound to take it
iv Even if the appellant was a Thika tenant within the meaning of the Calcutta Thika Tenants Act 1949 it would have protected him against eviction by respondent No 2 but It would not have given protection against the eviction by respondent No 1 because the Act was designed to protect the Thika Tenant from eviction by the landlord only and not against eviction from any other source
761 Shamsuddin Ahmad vs Dinanath Mullick Appeal from original decree No 123 of 1957 decided on 13 8 59
v The respondents Nos 1 and 2 are two distinct legal entitles and therefore simply because both had the same directors it cannot be said that the purpose of the suit was dishonest or sinister
vi The appellate Bench of the High Court has correctly decided that the present appellant has failed to establish that the impugned decree was procured collusively