LexRUP CHAND GUPTA versus RAGHUVANSHI PRIVATE LIMITED & ANR.
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1964 April 15 71)0 SUPREME COURT REPORTS [19.64) RUP CHAND GUPTA v. RAGHUVANSHI PRIVATE LIMITED & ANR. (P.9b. GAJENDRAGADKAR, C. J. AND K. C. DAS GUPTA, J.) Decree-Collusion-Ingredients of collusimt-A . party who need not be impleaded was not impleaded-Does not constitute collusi<>'l-Two limited companies-All directors common- Suit by one-Other does not defend-Does not make the suit collusive. 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 pr£sent res- pondent 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 tlefendants 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 obtain~d 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 coJ.lusion. 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 collud- ed. Scott v. Scott. 1913 Law Reports (Probate Division) 52 and Nagubai Ammaz & Ors. v. B. Shamma Rao, [1956) S.C.R 451, 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 ins- tituted 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 evictim1 by res- pondent 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. , 7 S.C.R. SUPREME COURT REPORTS 761 Shamsuddin Ahmad v. Dinanath l\fa!iick, Appeal from 1964 original decree No. 123 of 1957, decided on 13-8-59. Bup Chand Guplal . (v) The respondents Nos. 1 and 2 are two distinct legal Baghvra:.hi Pri .. ie entitles and therefore simply because both had the same d:rec- Ltd. "' Anolhu tors it cannot be said that the purpose of the suit was dishonest · or sinlster. (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. CIVIL APPELLATE JURISDICTION: Civil 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. S. T. Desai, B. Sen and B. P. Maheslnvari, for the appel- lant. H. N. Sanyal, Solicitor-General, Ajit Kumar Sen and S. N. Mukherjee, for the ;espondent No. I. April 15, 1964. The judgment of the Court was delivered by DAS GUPTA, J.-The subject-matter of this litigation. is Do.! 1Jv¥o, J. 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 10 years. In September 1960, Raghuvan
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