THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 339 of 2009 Date: 17.02.2010 Between: Ram Prakash Agarwal. .. Appellant. And Indian Oil Corporation, rep. by its Divisional Manager, Hyderabad and others. .. Respondents. THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 339 of 2009 JUDGMENT: (per Hon’ble Sri Justice B. Chandra Kumar) This C.M.A. has been filed challenging the order and decree dated 12.03.2009 passed in I.A. No.4940 of 2008 in O.S. No.712 of 2008 by the III Additional Chief Judge, City Civil Court, Hyderabad. The brief facts of the case are as follows. Respondents 2 to 11 herein had let out the plaint schedule property in favour of the first respondent-Indian Oil Corporation, rep. by its Divisional Manager, Hyderabad (hereinafter referred to as “Corporation”), under a registered lease deed dated 10.07.1967. The first respondent- Corporation initially appointed the father of the appellant herein as its dealer and after the death of his father in 1974, the appellant has been carrying on business in petrol and diesel retail outlet. The lease was renewed from time to time. However, the lease deed dated 27.10.2004 expired by February 2007. Then the lease was not renewed and respondents 2 to 11 filed O.S. No.716 of 2007 against the first respondent-Corporation and the said suit was decreed on 01.08.2008 granting six months time to the first respondent-Corporation to vacate from the plaint schedule property. Thus, the first respondent- Corporation was entitled to continue its possession till the end of February 2009. Aggrieved by the said judgment and decree, the first respondent-Corporation filed CCCA No.276 of 2008 and this Court, by judgment dated 13.12.2008, dismissed the said appeal, however granted time till the end of March 2009 to the first respondent- Corporation to vacate the premises. Then the first respondent- Corporation carried the matter to the Supreme Court and filed SLP (Civil) No.7474 of 2009 challenging the judgment of this Court in CCCA No.276 of 2008, dated 13.12.2008, and the said SLP was dismissed on 31.03.2009. However, the first respondent-Corporation was granted time till 31st December 2009 to vacate the premises. It appears that the third parties claiming to be the legal heirs of one Abbasi Begum filed CCCA (SR) No.12276 of 2008 challenging the judgment and decree made in O.S. No.716 of 2007, but however, the said CCCA (SR) No.12276 of 2008 has been dismissed by this Court. The appellant herein filed O.S. No.712 of 2008 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, praying to declare the judgment and decree in O.S. No.716 of 2007 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, dated 01.08.2008, as null and void, inoperative and unexecutable on the ground that it was obtained by fraud and collusion and not binding on the appellant. Pending disposal of the said suit, the appellant herein filed I.A. No.4940 of 2008 in O.S. No.712 of 2008 praying to grant temporary injunction against respondents 2 to 11 herein restraining them from executing the decree obtained by them in O.S. No.716 of 2007, dated 01.08.2008. The learned III Additional Chief Judge, City Civil Court, Hyderabad, by impugned order dated 12.03.2009, dismissed the said petition mainly on two grounds. First being that notice on sub-lessee is not necessary and the second ground is that the appellant herein failed to show any prima facie fraud or collusion in obtaining the decree in O.S. No.716 of 2007. Challenging the same, the present C.M.A. has been filed. Sri D. Prakash Reddy, learned Senior Counsel for the appellant, submitted that when a decree has been obtained by playing fraud, such decree is void and not executable. It is further submitted that admittedly the appellant herein was not issued any notice and the decree was passed behind the back of the appellant. It is further submitted that the observation of the lower Court that unless and until fraud and collusion is established, a decree cannot be held to be null and void, and unless and until the decree is held to be as null and void the appellant has no right to seek for stay of operation of decree of eviction is not in consonance with the established and settled proposition of law. It is further argued that the appellant should wait till the suit filed by him is decreed cannot stand to reasoning because the very purpose of filing suit would be defeated if the decree under challenge is executed. It is also submitted that the appellant has been in continuous possession and ultimately the appellant is the sufferer and therefore the lower Court ought to have stayed the execution of the decree. Sri M.V.S. Suresh Kumar, learned counsel for respondents 2 to 11, submitted that admittedly the appellant is not the Lessee and that the first respondent-Corporation is the Lessee and the appellant had obtained license from the first respondent-Corporation and when a Lessor files a suit for eviction of a Lessee the sub-Lessee or a Licensee of a Lessee need not be made as a party. In support of his contention, he relied on the decision in Rupchand Gupta v. Raghuvanshi ((Pvt.) Limited[1]. It is further argued that on the date when the appellant had obtained license from the first respondent- Corporation, he knows that he is only a licensee and he cannot claim any right against respondents 2 to 11. It is also submitted that the law has been well settled and the principle laid down in the above said decision has been followed in many other decisions. It is also submitted that the first respondent-Corporation carried the matter in appeal, but was unsuccessful in this Court and subsequently filed SLP before the apex Court but in vain, and therefore, the appellant has no right to file the suit challenging the decree obtained by respondents 2 to 11 in O.S. No.716 of 2007 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. It is further submitted that even as per the original agreement entered into between the appellant and the first respondent-Corporation, the appellant shall not be deemed to be in exclusive possession of the premises. The only point that arises for consideration is whether the appellant can seek stay of execution of the decree in O.S. No.716 of 2007, dated 01.08.2008. The brief facts of the case are as follows. Respondents 2 to 11 had let out the plaint schedule property in favour of the first respondent-Corporation under a registered lease deed dated 10.07.1967. Basing on the said registered lease deed, the first respondent seems to have appointed the appellant as its dealer. Originally, the father of the appellant was appointed as dealer, but subsequently i.e., after the death of his father, the appellant was appointed as dealer and he has been carrying on business in petrol and diesel retail outlet in the suit schedule property. It appears that the lease between the first respondent-Corporation and respondents 2 to 11 was renewed from time to time and the last lease deed being dated 27.10.2004. Clause 2 of the memorandum of agreement dated 29.05.2004 entered between the appellant and the first respondent- Corporation is as follows. “The Corporation doth hereby grant to the dealer leave and licence and permission for the duration of this Agreement to enter on the said premises and to use the premises and outfit for the sole and exclusive purpose of storing, selling and handling the products purchased by the Dealer from the Corporation. Save as aforesaid, the Dealer shall have no right, title or interest in the said premises or outfit and shall not be entitled to claim the right of lessee, sub-lessee, tenant or any other interest in the premises or outfit, it being specifically agreed and declared in particular that the Dealer shall not be deemed to be in exclusive possession of the premises.” Thus, the above clause makes it clear that the appellant shall not have any right, title or interest in the suit premises or outfit and shall not be entitled to claim the rights of lessee, sub-lessee, tenant or any other interest in the said premises or outfit and that he shall not be deemed to be in exclusive possession of the premises. Thus, it appears that the appellant even cannot claim as a sub-lessee and he is only a license holder. As far as the rights of sub-lessee are concerned, the legal position appears to be well settled. In Rupchand Gupta’s case (1 supra), the Hon’ble Supreme Court held that the mere fact that the sub- lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sub-lessee that the lessor had even a plausible defence to the claim for ejectment. The facts of the above referred decision show that the landlord brought a suit against his lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The suit was dismissed on the ground that the plaintiff failed to establish collusion. In the above circumstances, the Hon’ble Supreme Court held as follows. “Where the landlord institutes a suit against the lessee for possession of the land 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 sub-lease. The law allows this and so the omission cannot be said to be an improper act. 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 a dishonest purpose is intended to be achieved that they can be said to have colluded.” Learned counsel for the appellant though vehemently argued on facts, but could not dispute the settled legal position. Moreover, a reading of the entire material gives an impression that there is no specific allegation referring any facts and circumstances which at least prima facie show that there is collusion between the first respondent- Corporation and respondents 2 to 11. Moreover, the facts reveal that the first respondent had contested the suit and taken all possible pleas and at one stage the first respondent-Corporation had even taken a plea that there are other co-owners of the property whose names were not disclosed at the time of lease deeds executed from time to time. This plea was rejected by this Court, by a common order dated 13.12.2008, passed in CCCA Nos.273 and 276 of 2008. It also appears that the first respondent-Corporation had carried the matter to the Supreme Court and filed SLP and the same was dismissed. Learned counsel for respondents 2 to 11 submits that at the instance of the appellant herein some of the third parties claiming to be the legal heirs of one Abbasi Begum filed CCCA (SR) No. 12276 of 2008 challenging the decree in O.S. No.716 of 2007, but the same was dismissed by this Court. Thus, it appears that the first respondent- Corporation had contested the matter till its logical end and prima facie there is nothing to say that there was collusion between the first respondent-Corporation and respondents 2 to 11. One of the ground taken in the grounds of appeal by the appellant is that the decree was obtained within seven months of filing of the suit for eviction. Merely because the sit has been disposed of within seven months, the same cannot be a ground to say that there was any collusion between the first respondent-Corporation and respondents 2 to 11. In the circumstances, we are of the considered view that the appellant has no case and we see no grounds to interfere with the impugned order. Accordingly, the C.M.A. is dismissed. However, in the circumstances, no costs. ________________ B. PRAKASH RAO, J. ___________________ B. CHANDRA KUMAR, J. Dt. 17.02.2010 Nsr [1] AIR 1964 Supreme Court 1889