TMI Blog1964 (4) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... td. 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 1O years. In September 1960, Raghuvanshi Private Limited in its turn leased 10 1/2 cottahs out of the 52 cottahs to a public limited company, Land and Bricks Ltd. This lease by Raghuvanshi Private Ltd., (hereinafter referred to as Raghuvanshi ) in favour of Land Bricks Ltd., (hereinafter referred to as Land Bricks ) created a monthly tenancy commencing from the 1st October 1950. Land and Bricks in its turn sub-let the entire 10 1/2 cottahs to the present appellant, Rupchand Gupta in his business name of Hind Airways. The lease was on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted a suit No. 3283 of 1955 in the High Court of Calcutta against Land and Bricks for possession of the land. The appellant was not impleaded in the suit and Land and Bricks did not contest it. An ex parte decree was made by the Court in favour of Raghuvanshi on the 11th May 1956. The necessary legal consequences of that decree is that the plaintiff as the sub-lessee of Land and Bricks has no right to stay on the land and has become a trespasser. It is to avoid the consequence of that decree, that the present suit was brought by Rupchand Gupta. His case is that the decree had been obtained by fraud and collusion between the defendants in order to injure the plaintiff and to evict the plaintiff from the said premises without any de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had been obtained as a result of collusion between Raghuvanshi and Land and Bricks. The main circumstances on which the plaintiff relied to prove collusion and which according to the learned Judge established his case were these: Raghuvanshi and Land and Bricks though distinct entities had the same persons as directors. The construction of building in terms of indenture of lease with Official Trustee was necessarily in the interests of shareholders of Raghuvanshi and so this was in the interest of Land and Bricks also as the main shareholders were the same. The Calcutta Thika Tenancy Act, 1949 was a serious impediment in the way of the plaintiff s eviction in any suit by Land and Bricks. So, Land and Bricks attempted to get possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( [1956] S.C.R. 451). 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 It dishonest purpose is intended to be achieved that they can be said to have colluded. 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 Bricks agreeing with Raghuvanshi that it would not contest the suit, the actual refr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Raghuvanshi s claim for ejectment. 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 plaintiff s eviction of Land and Bricks. It is unnecessary for us t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Raghuvanshi s attempt to get possession of the land dishonest or sinister. It is not as if Raghuvanshi did not actually want to get possession of the land but wanted to help Land and Bricks to get possession. It has also to be remembered that the identity of the directors and the identity of the main shareholders do 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 person with two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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