ORDER
Lahiri, J.
1. This is a Rule under Section 115, Civil P. C. and it is ‘directed against two orders made by the Presidency Small Cause Court Judge, dated 15-6-1950 and 7-8-1950.
2. It seems that opposite parties 1 and 2 started a proceeding for recovery of possession against opposite party 3 under Section 41, Presidency Small Cause Courts Act in respect of one room in the first floor of premises No. 3, Baisakh Street, Calcutta, and this proceeding was registered as Suit No. 12910 of 1949. On 15-8-1950, when the suit was taken up for hearing, the petitioner filed an application to the Court alleging that the plaintiffs and the defendant of the aforesaid suit were colluding with each for the purpose of evicting the petitioner who, according to his allegation, was a sub-tenant under opposite party 3. The Court rejected this application on the ground that it was premature, and the Court observed that the point raised by the petitioner would arise and the petitioner might apply for relief when the plaintiffs went to take delivery of possession on the basis of the order for possession that might be passed by the Court. The application filed by the petitioner was therefore rejected and the Court proceeded to make an order for delivery of possession.
3. Later on when the plaintiffs went to take delivery of possession on the basis of the aforesaid order, the petitioner offered resistance and the plaintiffs thereupon applied to the Court for police help under the provisions of Order 21, Rule 97, Civil P. C. and to this application the petitioner filed an objection alleging that he was a statutory subtenant under the provisions of Section 11 (3), West Bengal Premises Rent Control Act, 1948. The Court rejected the objection filed by the petitioner by an order dated 7-8-1950 relying upon a Division Bench judgment of this Court in Civil Rule No. 226 of 1949. Against these two orders the petitioner has obtained the present Rule.
4. The second order is really concluded by the judgment of the Division Bench referred to above and the remedy of the petitioner is not by way of an application to the Presidency Small Cause Court Judge. But with regard to the first order dated 15-6-1950, it has been urged by the learned Advocate appearing for the petitioner that the Court was absolutely
wrong in rejecting the application on the ground that it was premature.
5. In my opinion, there is considerable force in the argument. In this application which was filed on 15-6-1950, the petitioner alleged that the plaintiffs and the defendant of that suit were colluding with each other for the purpose of ejecting the petitioner. In that view of the matter and in view of the fact that the defendant of that suit was not appearing in Court on the date when the suit was taken up for hearing, it was necessary for the Court to give the petitioner an opportunity of filing a written statement by adding him as a party to the suit. It is to be noticed that the tenant defendant did not also file any written statement to the suit. In my opinion, in the special facts of this case it was necessary for the Court to add the petitioner as a party defendant in the suit in order to effectually and completely adjudicate upon all the questions involved in the suit. Section 11 (3), West Bengal Premises Rent Control Act, 1948, gives the sub-tenant a legal right. Whether or not the petitioner in the present case will be able to prove that he has a right under Section 11 (3), West Bengal Premises Rent Control Act, 1948, will have to be decided upon the evidence which will be adduced by him after he is added as a party defendant in the suit.
6. In my opinion, the Court exercised the jurisdiction with material irregularity in throwing out the petitioner’s application dated 15-6-1950, on the ground that it was premature.
7. The Rule is accordingly made absolute, the order of the Court dated 15-6-1950, is set aside and the suit is ordered to be re-tried after adding the petitioner as a party to the suit and allowing him an opportunity to file a written statement.
8. There will be no order as to costs in this Court. Further costs will abide the result.