JUDGMENT
Raj Kishore Prasad, J.
1. This Letters Patent Appeal is from the judgment of Khaleel Ahmad J. in a miscellaneous second appeal, arising put of a proceeding under Section 47, Civil P. C.
2. The sole question for determination, on this appeal, is, whether Section 47, Civil P.C. applies to the present case.
3. The respondent, as landlord of holding No. 143A, lying within the Madhubani Municipality, applied for eviction of his tenant under Section 11 (1) (a), Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947). To this application, the admitted tenant Parmanand Jha, and, also the appellant, who was alleged to be a sub-lessee from the tenant, were made parties, and, eviction was sought against both. The tenant was opposite party 1, and, the appellant was opposite party 2 to this application for eviction. The House Controller on 18-7-1955, passed the following order:
“O.P. 1 (tenant) has not shown cause against eviction as prayed for by the petitioner (landlord). O.P. No. 1 is, therefore, ordered to put the house in question in petitioner’s possession by 18-9-55.
The petitioner denies any relationship of landlord and tenant with O. P. No. 2. The petitioner, therefore, cannot seek any action against the O.P. No. 2 under the House Control Act.”
4. The respondent, thereafter executed the order of eviction, which had the force of a Civil court decree, by virtue of Section 17 of the Act, before the 1st Munsif of Madhubani. On 5-1-1956, the appellant filed an objection under Section 47, Civil P.C. which was numbered as Misc. Case No. 2 of! 1956. The main objection taken by the appellant was that he was a party to the decree, and, no order of eviction was passed against him, and, as such, the execution for evicting him was barred by res judicata.
5. A writ for delivery of possession was, in due course, issued on 10-10-1955, fixing 14-10-1955 for return of the writ. The Nazir reported on 14-10-1955, that as soon as he reached the spot, and proclaimed by beat of drum, the persons named in his report, who were all members of the staff of the Cinema House of the appellant, came out and obstructed him in giving delivery of possession. Thereafter, on 14-10-1955, an application under Order 21, Rule 97, Civil P. C. was filed by the decree-holder-respondent, which was numbered as Miscellaneous Judicial Case No. 134 of 1955. The appellant filed several petitions from time to time before the executing Court, and, one such petition was filed on 11-2-1956, in which in para 3, he mentioned that he has been occupying the house in question since 31-1-1954 on the basis of the agreement of lease executed by the applicant (that is, the landlord-decree-holder) and this objector (that is, the appellant) dated 17-1-54 which was the case of this objector before the House Controller also.”
6. All these matters were heard together, and a composite order was passed by the executing Court on 24-2-1956, dismissing the objection of the appellant, and allowing the application of the decree-holder-respondent and directing that the decree-holder be put in possession of the house in question under Order 21, Rule 98, Civil P.C. In this proceeding, the show cause petition, filed by the appellant before the House Controller on 8-12-1954, was also filed by him and exhibited as Ext. B, to show that there also his case was that he was a tenant under the landlord, and not a sub-lessee under the tenant.
7. On appeal to the first Court of appeal, the order of the executing Court was affirmed, and, the appeal of the appellant was dismissed. An appeal from this order to this Court was also unsuccessful, and decided against the appellant by Mr. Justice Ahmad, from whose judgment the present Letters Patent Appeal has been presented.
8. In order to determine the question of law, which has been raised by Mr. Lal Narain Sinha, on behalf of the appellant, the first question, which calls for a decision, is: What is the meaning of the decree under execution ?
9. The construction sought to be put by the learned Government Advocate, on the order of the Controller with regard to the appellant, is that the House Controller in substance dismissed the application for eviction of the landlord against the appellant, and, disallowed the prayer for eviction of the landlord against him. On this view, so runs his argument, the Explanation to Section 47, Civil P.C. will come to his aid and, as such, Section 47 will apply to the present case.
10. Mr. U.N. Sinha, however, contended, for the landlord-respondent, that there was a distinction between ‘a party dismissed from a suit’ and, ‘a suit dismissed against a party’, and as such, the true interpretation of the order in question is that the House Controller, in view of the denial of the relationship of landlord and tenant between the landlord and the appellant, considered the appellant an unnecessary party, and, therefore, the appellant was simply dismissed from the proceeding as an unnecessary party, and not that the application for eviction of the landlord was dismissed on merit against the appellant, and, as such S 47 of the Code even read with its Explanation will not apply here.
11. In order to determine the correctness of the respective contentions at the Bar, it is necessary at first to read Section 47, with its Explanation. It is in these terms:
“47. (1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
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Explanation — For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.”
12. The first question, therefore, which arises, on the arguments presented, by the learned Counsel for the parties, is: Whether a sublessee from a tenant is a necessary party to an application of eviction under Section 11 (1) of the Act?
13. It is only when any question arises between the parties to the suit in which the decree was passed, or their representatives, that such question will come within the purview of Section 47 of the Code, if such a question relates to the execution, discharge or satisfaction of the decree. The contention of the learned Government Advocate is that a sub-lessee is a ‘tenant’ within the meaning of Section 2 (h) of the Act. On the other hand, Mr. U.N. Sinha has contended that a sub-lessee is not a ‘tenant’, but a trespasser, and, as such he cannot be considered to be a necessary party to an application under Section 11 (1) (a) of the Act, and, therefore, if such a sub-lessee is made a party to such an application, he cannot be considered in the eye of law to be a party to it.
14. Reading Sub-section (1) and Sub-section (2) of Section 11 of the Act, it is clear that a landlord, who seeks to evict his tenant, who is in possession of any building belonging to such a landlord, he has to make an application under Section 11 (1) of the Act for his eviction on any of the grounds mentioned in the section. On the plain language of Section 11, therefore, to an application for eviction made by a landlord, only his ‘tenant’, who is in possession of the building from which eviction is sought is to be made party to it.
15. The question then is: Is a sub-lessee a ‘tenant’ within the meaning of Section 11 read with Section 2 (h) of the Act ?
16. The expression “tenant” has been defined in Section 2(h) of the Act in the following terms.
2. In this Act, unless there is anything repugnant in the subject or context,-
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(h) ‘tenant’ means any person by whom, or on whose account, rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour.”
17. In my judgment, on a true construction of Section 2(h), the meaning of the expression “tenant”, as used in the Act, is to include any person, by whom, or on whose account, rent is payable for a building and as such, it includes a sub-lessee or sub-tenant from a tenant also.
18. It is significant to note that Section 2(h) does not say that the rent, which is payable for a building, should be paid to the landlord, in which case, of course, it would have meant the landlord and his tenant, to whom he let out his, building. It speaks in general terms of any person, by whom, or, on whose account, rent is payable for a building. It does not speak of the person to whom such rent is, or should be, payable.
19. Rent for a building may be payable by the original tenant, or on his account, it may be payable by his under-tenant, or sub-lessee either direct to the landlord, or through the tenant, according to the mutual arrangement between the parties. Section 2 (h) only requires that the rent of the building should be payable by some person, or on his account.
20. Section 11(1) (a) lays down the grounds on which an eviction of a tenant can be sought. One such ground is the sub-letting of the building by the tenant without his landlord’s consent. This also lends support to the view that if a building is sublet by the tenant with the consent of his landlord, then the sublessee is also to be treated as a tenant, and, in which case the original tenant is not liable to toe evicted,
21. Further, the omission of the Legislature to mention in Section 2 (h) that the rent for the building should be payable to the landlord also leads to the conclusion that the Legislature intended to give a wider meaning to the definition of “tenant”. This intention is further clear from the fact that the definition of “tenant” also includes a person, who continues in possession of the building, after the termination of the tenancy, such a person, who holds over without the consent of the landlord, would obviously become a trespasser in the eye of law; but, under this Act, by virtue of the definition of “tenant” given in Section 2(h), such a trespasser, continuing in possession after the termination of his tenancy without the consent of his landlord, becomes a statutory tenant. .
22. It is, therefore, not unnatural, or unreasonable, to suppose that the Legislature intended even a sub-lessee from a tenant to be included within the meaning of the expression “tenant”. The purpose of such an extended meaning would be clear from the object of the Legislature with which Section 11 was enacted. Section 11 gave protection to the landlord to evict his tenant on one of the grounds mentioned therein. If, therefore, a sub-lessee was not to be included within the definition of “tenant”, then the landlord would never be able to evict his tenant under Section 11(1) of the Act on any ground whatsoever, because the person, who would be in possession of the building let out, would be the lessee of the tenant, and not the tenant himself. In order, therefore, to checkmate any attempt on the part of the tenant in possession of the building to defeat the right of his landlord to evict him from the building in his possession on one of the grounds mentioned in Section 11(1), the Legislature deliberately gave extended meaning to the expression “tenant” in Section 2(h) so as to include a sub-lessee from the tenant also.
23. In my judgment, therefore, on a true construction of Section 2(h) of the Act, the expression ”tenant” defined in Section 2 (h) includes also a sub-lessee from him, and, as such a sub-lessee is a “tenant” within the meaning of Section 2(h) of the Act, and, therefore, he is a necessary party to an application for eviction by the landlord under Section 11(1) of the Act.
24. The next question, therefore, which arises, is: What is the meaning of the concluding portion quoted earlier of the order of the House Controller, which is under execution?
25. It is well established that for the purposes of interpreting a decree, no other document is so directly in point as the judgment, or, in the nature of things, have comparable force. It is equally well settled that a party, who is dismissed from a suit on the ground that he has no concern with it, is no longer a party to the suit, and is not bound by the decree. Manakchand v. Manoharlal, AIR 1944 PC 46: 71 Ind App. 65 (A).
26. Where, therefore, parties have been wrongly joined, and, the suit against them is given up by the plaintiff, or upon that ground he exonerates them, or, there is a finding come to that they have been wrongly joined, then the correct procedure is to strike out their names as having been improperly impleaded. On the exoneration, or the striking out of the names of such person on the ground of misjoinder, they cease to be parties to the suit; and such defendants must be treated as persons who had been dismissed from the suit, and not as persons against whom the suit had been dismissed. Therefore, where a suit is dismissed against a person on the ground that he was improperly impleaded, as party having no concern with the suit, such a person does not remain a party to the suit for the purposes of Section 47, notwithstanding whether his name has, or has not been removed from the record.
In such cases, it is the duty of the court to strike out the name of the party improperly impleaded; it is quite wrong procedure to dismiss the suit as against him. It is, however, quite otherwise in the case where the plaintiff abandons his claim against the defendant, and the suit is dismissed as against him. Even where a Court, instead of directing that a certain party should be struck out as having been improperly impleaded, erroneously made an order dismissing the suit as against them, those persons could not properly be said to have been parties to the suit within the meaning of the Explanation to Section 47. These principles are fully supported by the Full Bench decision of the Madras High Court in Abdul Sac v. Sundara Mudaliar, AIR 1930 Mad 817 : ILR 54 Mad. 81 (B), which was followed by the same High Court subsequently in Jujisthi Panda v. Lakshmana Dola, AIR 1933 Mad. 435 (C), and, by this Court in Mt. Kusmi v. Sadasi Mahto, AIR 1942 Pat. 432:(D).
27. The Full Bench decision of the Lahore High Court, in Serindar Nath v. Ram Sarup, AIR 1944 Lah. 294: ILR 1944 Lah. 479 (E) relied upon by the appellant, has no application here. In this case, Mahajan J. as he then was delivered the judgment of the Court. His Lordship construed Section 47, Civil P.C., as read with the Explanation to that section, and held, in the circumstances of that particular case that Section 47 would not bar a subsequent suit by a person who was one of the defendants to the suit, and against whom the suit was dismissed, although he took no objection to wrongful sale of his properties in execution of such a decree. In this case, the dispute arose not between a decree-holder and a judgment-debtor, but between a party and his own representatives, who were not opposed to one another in the suit, but were on the same side, and as such, it was held by the Full Bench that a dispute between the party and his own representatives, or between the parties not opposed to one another in the suit, is outside the ambit of Section 47, and hence a suit by an exonerated defendant to recover possession of his share of the property wrongfully sold in execution of the decree against a stranger auction-purchaser is not barred by the provisions of Section 47 even as read with the Explanation to that section. This case, therefore, can be of no assistance to the appellant.
28. Bearing the above principles in mind, let us now ascertain the precise meaning and the true effect, of the order of eviction, which the Court below were asked to enforce. To determine whether the appellant was dismissed from the proceeding, or whether as against him the proceeding had been dismissed, and, in order to determine further whether the appellant should” be considered to be a party to the order of eviction under execution, within the meaning of Section 47 of the Code as read with the Explanation appended to it, it is necessary to read the order of eviction itself.
29. The concluding portion of the order under execution which is in controversy is to the following effect:
“The petitioner denies any relationship of landlord and tenant with O. P. No. 2. The petitioner, therefore, cannot seek any action against the 6. P. No. 2 under the House Control Act.”
30. The above order of the House Controller, which was being executed under Section 17 of the Act, shows that the landlord denied the relationship of landlord and tenant between him and the appellant, and, therefore, the House controller observed that in view of this admission of the landlord he could not maintain any action against the appellant under the Act. In my opinion the true interpretation of the decree under execution is that the appellant was dismissed from the eviction proceeding because the landlord on his own case could not maintain application for eviction against the appellant also. As appears from his show cause petition (Ext. B) filed before the Controller, the defence eferewrge appellant was that he was not a sublessee from the tenant, but a tenant under an agreement from the landlord himself. The defence, however, was not considered on its merits by the House Controller; but in view of the admission of the landlord that there was no relationship of landlord and tenant between him and the appellant, the House Controller considered, rightly or wrongly, with which we are not concerned here. That the landlord could not, therefore, seek any action against the appellant under the Act. If the intention of the House Controller would have been to determine the defence in order to find out whether his defence was correct or not he could have determined it on its merits, and then dismissed the application for eviction of the landlord against him’ or rejected the defence of the appellant. He did neither. He simply observed that in view of the denial of the relationship of landlord and tenant between the landlord and the appellant, the landlord was not entitled under the Act to seek any action against him. If the House Controller had intended to dismiss the application for eviction against the appellant, then he could have said that the landlord’s application for eviction is, therefore, dismissed, against the appellant. He does not use the word ‘dismissed’ but he simply says the landlord cannot seek any ‘action’ against the appellant. In my opinion, therefore the true meaning and correct interpretation of the decree under execution is that the application for eviction against the appellant was given up by the respondent and he exonerated him, because he had been wrongly joined. No doubt, in such a case the correct procedure was to strike out his name as having been, improperly impleaded on the exoneration. But even if this procedure has been adopted, simply because his name still appears in the decree under (execution, it is not possible to hold as a matter of legal construction, of the meaning of the order under execution that the appellants should be considered as a party to it within the meaning of the Explanation to Section 47. Even if the House Controller, after having found that the appellant had been improperly impleaded, or that the application for eviction by the landlord against him was not maintainable had erroneously made an order dismissing the application for eviction as against the appellant, even then, the appellant could not properly have been considered to be a party to the order within the meaning of the Explanation to Section 47.
31. In this view of the meaning of the
decree under execution it is manifest that Section 47,
Civil P.C., did not apply to the present case, and
therefore, the objection of the appellant made
under Section 47 was not maintainable. The question
of res judicata raised by the appellant in his
objection under Section 47 of the Code was not legally
one of res judicata; but of the meaning of the
decree which the Courts were asked to enforce.
In similar circumstances, this was the view of
the Privy Council also in Manakchand v. Manohar Lal (A) (Supra). :
32. The above view that the appellant cannot in the eye of law be considered to be a party to the order under execution is further supported by another Bench decision of the Madras High Court in Thangachami Naicker v. Veerappa Chettiar AIR 1937 Mad 268 (F) in which it was held that a defendant who was not necessary party would not be a party to the suit within the meaning of Section 47 of the Code if he is exonerated without his claim being adjudicated upon.
33. For these considerations, I hold that Mr. Justice Ahmad was right in holding that the appellant must be deemed not to be a party to the proceeding before the House Controller within the meaning of the Explanation to Section 47 of the Code, and, as such, the appellant’s objection to the validity of the execution was not maintainable under Section 47 of the Code. I would, therefore, answer the main question posed by me in the negative and confirm the decision of Ahmad J. and dismiss this appeal from his judgment.
34. As stated before, the appellant’s objection, made on 11-2-1956, and his other objections made to the application of the decree-holder under Order 21 Rule 97 of the Code were considered by the first two Courts below and negatived, and it was found that the resistance offered by the appellant and his men to the delivery of possession under the decree under execution wag illegal, and, therefore the decree-holder should be put in possession of the building in question under Order 21, Rule 98, Civil P. C. The order of the executing Court, further shows that the appellant was found to be a sub-lessee of the tenant, Parmanand Jha, and not a tenant under an agreement from the landlord himself as alleged by him. It was conceded by the learned Government Advocate that if the appellant was a sub-lessee from the tenant against whom the order for eviction had been passed then he was also liable to be evicted.
35. For these reasons, there is no merit in the appeal, and as such, it must be dismissed with costs.
Ramaswami, C.J.
36. I agree.