Subhro Kamal Mukherjee, J.@mdashThis is an application under Article 227 of the Constitution of India against Order No. 51 dated February 15, 2006 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Miscellaneous Appeal No. 28 of 1999.
2. By the order impugned the learned Judge in the Lower Appellate Court rejected an application filed by the appellant/petitioner dated February 1,2006 for addition of Star Paper Mills Limited as respondent in the said appeal holding, inter alia, that the presence of the said Star Paper Mills Limited was not at all necessary for adjudication of the appeal.
3. The estate officer started a proceeding u/s 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The said proceeding was registered as Case No. 279 of 1999 before the estate officer.
4. By the order dated July 9, 1999, the estate officer passed an order of eviction against the petitioner.
5. Alleging that the petitioner was not granted proper opportunity to contest the case before the estate officer, the petitioner has preferred an appeal in the City Civil Court at Calcutta against the said order of eviction dated July 6, 1999. The appeal has been registered as Miscellaneous Appeal No. 28 of 1999.
6. Eventually, the appeal has been transferred to the Court of the learned Judge, Second Bench, City Civil Court at Calcutta.
7. On a date fixed for peremptory hearing of the appeal, the appellant/petitioner filed an application for addition of party seeking to add Star Paper Mills Limited as a proforma respondent in the appeal. In the said application, it was contended that the said proceeding under the Act of 1971 was initiated by the estate officer against the petitioner suppressing the fact that Star Paper Mills Limited has been the original tenant and a suit filed by the opposite party against the said original tenant being No. 308 of 1976 was dismissed. It was, further, alleged that so long the tenancy of Star Paper Mills Limited has been in existence, the estate officer had no authority to initiate a proceeding for eviction against the petitioner, who has been a lawful sub-tenant under the said Star Paper Mills Limited in respect of the said premises. It was stated that such application could not be filed earlier due to inadvertence, but this appeal could not be disposed of in the absence of the original tenant inasmuch as the result of the decision in the appeal might prejudice the interest of the said Star Paper Mills Limited adversely.
8. The learned Judge in the Lower Appellate Court by the order impugned, as I have already indicated hereinabove, rejected the application filed by the appellant/petitioner holding, inter alia, that the presence of the Star Paper Mills Limited was not at all necessary in the said appeal inasmuch as the said Star Paper Mills Limited was not a necessary party in the said appeal.
9. Being aggrieved by, and dissatisfied with, the order of the learned Judge, the petitioner filed this application under Article 227 of the Constitution of India.
10. Mr. Jaharlal De, learned advocate appearing in support of the application, argues that this proceeding was initiated against the petitioner without impleading the original tenant under whom the petitioner is a sub-tenant; such original tenant ought to have been made a party in the proceeding so that no adverse order is passed against such original tenant, particularly when a suit filed against it was dismissed. Mr. De submits that Star Paper Mills Limited is a proper party in the appeal.
11. Mr. Jahar Chakraborty, learned advocate appearing for the opposite party, however, submits that in an appeal filed u/s 9 of the Act of 1971 in the year 1999, this application for addition of party was filed on a date fixed for peremptory hearing of the appeal only with the intention to delay the hearing of the appeal inasmuch as Star Paper Mills Limited is neither a necessary nor a proper party in the appeal.
12. In an appeal u/s 9 of the said Act of 1971, the points for considerations, inter alia, are:
(a) Whether the estate officer served a proper notice of show-cause to the alleged unauthorised occupant of public premises in the manner prescribed u/s 4 of the said Act?
(b) After the cause is shown by the alleged unauthorised occupant, whether the estate officer gave reasonable opportunity, in conformity with the principles of natural, justice, to such alleged unauthorised occupant to place his case?
(c) Whether the estate officer was satisfied that the public premises was in unauthorised occupation?
(d) Whether the estate officer has passed a reasoned order in support of his findings that the public premises was under unauthorised occupation?
(e) Whether the estate officer gave direction upon such unauthorised occupant to vacate such public premises on such date as may be specified in the order?
(f) Whether a copy of such order of eviction has been affixed on the outer or some other conspicuous part of the public premises?
13. It was urged on behalf of the petitioner that in the absence of Star Paper Mills Limited, the proceeding could not continue. This appeal has been filed sometime in the year 1999. The appeal is pending for about seven years. On a date fixed for peremptory hearing of such appeal, this application for addition of party was filed seeking to add Star Paper Mills Limited as a proforma respondent in the appeal. The appellant was never diligent. They could have cited an authorised representative of the said Star Paper Mills Limited as a witness before the estate officer, but they have chosen not to do so.
14. Moreover, having regard to the nature and the scope of the appeal, I am of the opinion, Star Paper Mills Limited is neither a necessary nor a proper party in the said appeal. In order to enable the lower Appellate Court to effectively and completely adjudicate upon, and settle all the points for consideration in the appeal, the presence of Star Paper Mills Limited is not at all required.
15. Therefore, the order impugned in this application is affirmed.
16. This application under Article 227 of the Constitution of India is rejected. 17. I make no order as to costs.
18. Urgent xerox certified copy of this order, if applied for, same be supplied to the learned advocate for the parties as expeditious as possible.
