Case: Rup Chand Gupta Vs. Raghuvanshi Private Limited &amp; Anr

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 said to 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.12. Taking the last action first, viz., Raghuvanshis 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 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 impleaded 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 allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and 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 Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think 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 purpose and consequently was improper. It is not necessary for 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 Raghuvanshis claim for ejectment.14. 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 plaintiffs eviction of Land and Bricks. It is unnecessray 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 froman source. (Shamsuddin Ahmed v. Dinanath Mullick, A.F.O.D. No. 123 of 1957 D/- 13-8-1959 (Cal). The correctness of this view has not been challenged before us. Nor is it the appellants case the 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 S. 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 Raghuvanshis claim for ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest 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 Raghuvanshi 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 Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does 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 persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land 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 appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. 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 Brick 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 said to 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.12. Taking the last action first, viz., Raghuvanshis 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 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 impleaded 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 allow this and so the omission cannot be said to be an improper act.13. Nor is it possible, in our opinion, to say that the omission of Land and Bricks to contest the ejetment suit was and 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 Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think 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 purpose and consequently was improper. It is not necessary for 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 Raghuvanshis claim for ejectment.ejectment.15. The crux of the matter is : Was this attempt by Raghuvanshi to get possession of the land a dishomest 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 Raghuvanshi 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 Raghuvanshis attempt to get possession of the land dishomest or sinister. It is not as if Raghuvanshi did not actually want go get possession of the land but wanted to help Land and Bricks to get possession. It has also be remembered that the identify of the directors and the identify of the main shareholders does 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 persons with two names. If that had been so, there might have been good reason for thinking that it was in an attempt to surmount the obstacle presented by the Calcutta Thika Tenancy Act, 1949, that this mode of Raghuvanshi suing Land and bricks for ejectment was recorded to. Indeed, if Raghuvanshi an Land 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 appellants case. It appears from the High Courts judgment that the plaintiffs counsel made it plain before the court that it was not his clients case that the plaintiffs real lessor was Raghuvanshi Private Ltd., and not Land and Brickis Ltd.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 a dishonest purpose is intended to be achieved that they can be said to have colluded.