Calcutta High Court (Appellete Side)
M/S. Cooke And Kelvey Properties Pvt. ... vs M/S. Expo International & Anr on 23 December, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLAE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A. 968 of 2010
With
F.M.A 969 of 2010
M/s. Cooke and Kelvey Properties Pvt. Ltd.
Versus
M/s. Expo International & Anr.
For the Appellant : Mr. S.P. Roy Chowdhury, Adv.
: Mr. Sibasis Ghosh, Adv.
: Mr. Vinay Kumar Purohit , Adv.
For the Respondent : Mr. Bidyut Kumar Banerjee, Sr. Adv.
No.1 in FMA 968/10 : Mr. Ashok SharmaAdv.
: Ms. Shila Sarkar, Adv.
For the respondent : Mr. Swapan Kumar Mallick, Adv.
No.1 in FMA 969/10 : Mr. Lutfue Haque, Adv.
Heard on : 11.11.2016, 12.12.2016, 14.12.2016 &
15.12.2016
Judgement on : 23rd December, 2016
Jyotirmay Bhattacharya, J.: -
Two First Miscellaneous Appeals were filed by the appellant herein challenging the common judgment and order being No.67 dated 26th April, 2010, passed by the learned Judge 7th Bench, City Civil Court at Calcutta by which two miscellaneous cases being Misc. Case No. 3450 of 2006 and Misc. case No. 3117 of 2006, both arising out of Title Suit No. 1692 of 2003, were allowed by the learned Executing Court.
The appeal being FMA No.968 of 2010 arises out of the judgment and order passed by the learned Executing Court in Misc. case No.3450 of 2006. The other appeal being Misc. case No. 969 of 2010 is directed against the judgment and order being No.67 dated 26th April, 2010 passed by the learned Executing Court in the Misc. case No. 3117 of 2006. The appellant is common in both the appeals. The judgment debtor/respondent No.2 is also common in both the appeals. The third party objectors/respondents are not common. In one of such appeals the third party objector was M/s. Expo International and in the other appeals the third party objector was M/s. Calcutta Trade Syndicate being a proprietorship concern of Smt. Ushashree Modi.
Since common question of law and facts were involved in both the aforesaid miscellaneous cases, both the aforesaid Misc. cases were tried analogously and by a common judgment and/or order, both the aforesaid Misc. cases were disposed of.
Since common question of fact and law are involved in these two appeals, we have decided to dispose of both these appeals by a common order. Accordingly, we have heard the learned Counsel of both the appeals simultaneously one after another.
Let us now consider the merit of these appeals in the facts of the present case. The facts which are admitted by both the parties in the present appeals are as follows:-
(I). By a registered deed of lease dated 28th July, 1965 executed between M/s. Cooke and Kelvey Properties Pvt. Ltd., the appellant herein on the one part as the lessor and M/s. Hindustan Motor Finance Corporation Ltd.
described therein as the lessee, the whole of the 2nd Floor admeasuring two thousand eight hundred fifty square feet of premises No.20, Old Court House Street, Kolkata 700001 was let out for a period of 16 years, commencing from 21st July, 1965 and ending on 20th July, 1981 @ Re.1/- per Sq. Ft. i.e., at a monthly rental of Rs.2,850/- (Rupees two thousand eight hundred fifty) only. It was provided in Clause 11 of the said lease deed that the lessee before expiry of one year from the date of the commencement of the lease, is not entitled to sub-let wholly or any part of the demised premises.
(II). M/s. Expo International a proprietorship firm represented by Bhagabati Prasad Goenka took sub-lease of a portion of the 2nd Floor admeasuring more or less 1425 Sq. Ft. lying and situate at premises No.2, Old Court House Street, Kolkata - 70001 from the lessee namely, M/s. Hindustan Motor Finance Corporation Ltd.
(III). In April, 1980 M/S. Kolkata Trade Syndicate sole proprietorship concern was inducted as a sub-lessee in respect of a portion of the 2nd Floor admeasuring more or less 660 Sq. ft. of the said premises by the lessee, namely, Hindusthan Motor Finance Corporation Ltd. (IV). The lease deed which was executed between M/s. Cooke and Kelvey Properties Pvt. Ltd. and M/s. Hindustan Motor Finance Corporation Ltd. on 28th July, 1965 expired by efflux of time on 20th July, 1981. However, even after expiry of the lease, the respondent No.2 continued to occupy the 2nd Floor of the said premises by holding over and thus, the said respondent became a monthly tenant and its tenancy started to be governed by the West Bengal Premises Tenancy Act, 1956. (V). An agreement was entered into between M/s. Cooke and Kelvey Properties Pvt. Ltd. and M/s. Hindustan Motor Finance Corporation Ltd. on 27th March, 1981 whereby M/s. Cooke and Kelvey Properties Pvt. Ltd. agreed to grant a lease in favour of M/s. Hindustan Motor Finance Corporation Ltd. for a further period of 21 years. In Clause 11 of the said agreement it was agreed that the present arrangement of sub-letting by the lessee would be allowed to continue. However, no lease deed was subsequently executed between those parties in pursuance of the said agreement. As a result, the M/s. Hindustan Motor Finance Corporation Ltd. continued to enjoy the said demised premises as a monthly tenant thereof and its tenancy continued to be governed by the provisions of the West Bengal Premises Tenancy Act, 1956.
(VI). The rent which was payable by the M/s. Hindustan Motor Finance Corporation Ltd. to M/s. Cooke and Kelvey Properties Pvt. Ltd. as per the original lease deed was enhanced from time to time and in July, 2003, the rent payable by the M/s. Hindustan Motor Finance Corporation Ltd. to M/s. Cooke and Kelvey Properties Pvt. Ltd. was Rs. 16,690.74 and Rs.8,345.37 was payable on account of service charges per month. Thus, total sum of Rs.25,026.11 was payable by the said M/s. Hindustan Motor Finance Corporation Ltd. to M/s. Cooke and Kelvey Properties Pvt. Ltd. on account of rent and service charges in July 2003.
(VII). The West Bengal Premises Tenancy Act, 1956 was repealed by the West Bengal Premises Tenancy Act, 1997 which came into force w.e.f. 10th July, 2001. Section 3 (f) of the West Bengal Premises Tenancy Act, 1997 provides that nothing contained in the said Act shall apply to any premises let out for non-residential purpose, which carries more than- i. Ten thousand rupees as monthly rent in the areas included within the limits of the Calcutta Municipal Corporation or the Howrah Municipal Corporation, or ii. Five thousand rupees as monthly rent in other areas to which this act extends.
Since the demised premises which is situated within the limits of Calcutta Municipal Corporation was let out for non-residential purpose and the rent of such demised premises was Rs.25,026.11 per month, the provisions of the West Bengal Premises Tenancy Act, 1997 will not apply to the tenancy which was held over by the M/s.
Hindustan Motor Finance Corporation Ltd. under M/s. Cooke and Kelvey Properties Pvt. Ltd. Since 10th July, 2001 when the West Bengal Premises Tenancy Act, 1997 came into operation. Thus, with effect from 10th July, 2001 the tenancy of the said M/s. Hindustan Motor Finance Corporation Ltd. started to be governed by the provisions of the Transfer of Property Act, 1882.
(VIII) Section 111 of the Transfer of Property Act prescribes various modes for determination of such lease. One of such modes for determination of such lease, as prescribed under Section 111(h) of the said Act, provides that on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one part to the other, the lease of immovable property will stand determined. The mode of service of such notice to determine the lease by the lessor upon the lessee and the duration of such notice are prescribed under Section 106 of the Transfer of Property Act which runs as follows:-
Section 106 of the Transfer of Property Act:- In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice : expiring with the end of a year of the tenancy: and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by 15 days notice expiring with the end of a month of the tenancy.
Every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
The legal and factual position to the above extent are admitted by the parties.
Let us now indicate the dispute between the parties which gives rise to the initiation of such proceedings under Order 21 Rule 99, 100 & 101 of the Civil Procedure Code:-
1. M/s. Cooke and Kelvey Properties Pvt. Ltd. being the landlord served a notice to quit through its advocate's letter dated 14th July, 2003 upon M/s.
Hindustan Motor Finance Corporation Ltd. determining the relationship of landlord and tenant between the parties and by the said notice, the said tenant was called upon to quit, vacate and deliver up vacant and peaceful possession of the suit premises within 30 days from the date of receipt thereof. It was mentioned in the said notice that the said notice will be treated as a notice under Section 106 of the Transfer of Property Act. The said notice which was sent by Registered Post with Acknowledgement due was duly received by the said tenant on 23rd July, 2003 by acknowledging such service by putting his signature on the acknowledgement card. Since the said tenant failed and neglected to vacate the suit premises after expiry of the notice period, an eviction suit was filed against the said tenant in the City Civil Court at Calcutta. The said suit was registered as Title Suit No.1629 of 2003. A decree for recovery of khas possession of the suit premises after evicting the defendant therefrom was prayed for. Recovery of a sum of Rs.1,64,000/- on account of damages @ Rs.2,000/- per diem from 23rd August, 2003 to 14th November, 2003 was also prayed for. A decree for recovery of future mesne profit and/or damages @Rs.2,000/- per diem from 15th November, 2003 till recovery of khas possession of the suit premises, was also prayed for in the said suit.
In spite of receipt of summons of the said suit the defendant did not ultimately contest the said suit. As such, the learned Trial Judge decided the said suit ex parte against the M/s. Hindustan Motor Finance Corporation Ltd. The learned Trial Judge was pleased to pass an ex parte decree in favour of the plaintiff.
The defendant was directed to deliver the khas and vacant possession of the suit premises to the plaintiff within 90 days from the date of passing of the decree (3rd April, 2006), failing which the plaintiff was given liberty to execute the said decree in accordance with law. A decree for mesne profit was also passed in favour of the plaintiff with a rider that such mesne profit will be assessed in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure in accordance with law.
M/s. Hindustan Motor Finance Corporation Ltd. did not challenge the said decree in appeal. Thus, the said Corporation accepted the said decree. However, since the said Corporation did not vacate the suit premises and/or give up vacant and peaceful possession thereof to the plaintiff therein, the plaintiff levied an execution case for recovery of possession of the suit premises from the said Corporation/judgment debtor through the process of execution. The said execution case was registered as Title Execution Case No.57 of 2006.
The decree was executed on 20th September, 2006 when the judgment debtor, namely, M/s. Hindustan Motor Finance Corporation Ltd. vacated the suit premises peacefully by giving up its possession to the bailiff of the Court and thus, portion of the suit premises which was in the possession of M/s. Hindustan Motor Finance Corporation Ltd. was recovered through the process of such execution.
The sub-tenants, namely, M/s. Expo International and M/s. Kolkata Trade Syndicate resisted the execution of the said decree in respect of the portion in their occupation and as a result possession of the portions which were in their respective possession could not be recovered by the bailiff on the said date.
Subsequently, the aforesaid two miscellaneous cases were filed by the respective sub-tenants under the provision of Order 21 Rule 99 read with Order 21 Rule 100 and 101 and Section 151 of the Civil Procedure code.
Both of them claimed independent rights in the suit property. They claimed that the decree which was passed in favour of the plaintiff/decree- holder against M/s. Hindustan Motor Finance Corporation Ltd. is neither binding upon them nor the said decree is executable against them.
The M/s. Expo International which was a proprietorship firm of Bhagabati Prasad Goenka, filed a miscellaneous case under Order 21 Rule 98, 100 & 101 Civil Procedure Code and the Bhagabati Prasad Goenka having died during the pendency of the said proceeding, his sons, namely, Ashok Bardhan Goenka and Ranjan Goenka were substituted in the place of Bhagabati Prasad Goenka.
Both the said sub-tenants claimed independent right in respect of the suit premises.
M/s. Kolkata Syndicate alleged that the decree which was passed in the eviction suit in favour of M/s. Cooke and Kelvey Properties Pvt. Ltd. against M/s. Hindustan Motor Finance Corporation Ltd. was not binding upon the objector/opposite party No.1 as M/s. Cooke and Kelvey Properties Pvt. Ltd. obtained the said decree fraudulently. It was also alleged by the said objector that its sub-tenancy right remains unaffected notwithstanding the Lessee's right stood forfeited with the passing of the decree of eviction against it. This objector claimed that it had acquired an independent right to occupy the portion in its possession, as sub-tenant thereof as per the provision of Section 115 of the Transfer of Property Act.
The other objector, namely, M/s. Expo International also claimed its independent right in the suit property as a sub-tenant thereof. It is contended by it that the original lessee namely, M/s. Hindustan Motor Finance Corporation Ltd. sub-let a portion of the demised premises to the objector. It is alleged that since such sub-letting was made by the original lessee by virtue of its authorization of sub-letting granted by the head lessor in Clause 11 of the lease deed dated 28th April, 1965 executed between M/s. Cooke and Kelvey Properties Pvt. Ltd. and M/s. Hindustan Motor Finance Corporation Ltd. such sub-letting in favour of the objector was lawful.
It was further contended therein that after the expiry of the said parent lease by efflux of time, the original lessee held over the said tenancy and thus, original lessee became a monthly tenant under the head lessor and its tenancy started to be governed by provisions of the West Bengal Premises Tenancy Act, 1956.
It was further alleged by the objector that since the original lessee was allowed to hold over its tenancy with the knowledge of sub-letting and the sub- tenants were allowed to occupy portion of the demised premises as tenant under the original lessee, no further notice for notifying creation of sub-tenancy was required to be served upon the head lessor under Section 16 of the West Bengal Premises Tenancy Act, 1956.
It was further alleged that the objector being a known sub-tenant should be regarded as a notified sub-tenant, notwithstanding any notice under Section 16 of the said Act having not been served upon the head Lessor. It was further contended that the protection against eviction which the said objector acquired by virtue of its position under the West Bengal Premises Tenancy Act, 1956 remains unaffected even after the said Act was repealed by the subsequent legislation i.e., the west Bengal Premises Tenancy Act, 1997.
It was thus, alleged that the said objector being a notified sub-tenant was a necessary party in the eviction suit as per Section 13(2) of the 1956 Act and since the said suit was filed without joining the said objector as defendant therein, the decree which was passed in favour of the head lessor is not binding upon the sub-tenant, as the said sub-tenant acquired independent right in respect of the portion which was let to it by the original lessee.
Learned Executing Court was pleased to allow both the aforesaid proceedings in favour of the respective objectors by the impugned order being No.67 dated 26th April, 2010. The learned Executing Court held that the objectors were necessary parties in the suit and since the decree was passed by the learned Trial Court in favour of the head lessor in the said suit without joining the sub-tenants as parties therein, the decree is a collusive one and such decree is not binding upon the sub-tenant.
The learned Executing Court also held that in view of the provision contained in Section 115 of the Transfer of Property Act, the tenancy of the objector remains unaffected, despite an eviction decree was passed against the Original Lessee.
As a mater of fact, the learned Executing Court declared that the objectors are bona fide tenants in respect of the demised premises. The appellant, namely, the head lessor was directed to accept and acknowledge the objectors as direct tenants under it. The appellant was restrained from causing any obstruction or disruption of the rights and privileges relating to the enjoyment of the demised premises by the objectors.
The legality and/or propriety of the said order passed by the learned Executing Court is under challenge in this appeal at the instance of M/s. Cooke and Kelvey Properties Pvt. Ltd.
Let us now consider as to how far the learned Executing Court was justified in passing the impugned order in the facts of the instant case.
At the very outset we like to mention here that the finding of the learned Executing Court that decree which was obtained by M/s. Cooke and Kelvey Properties Pvt. Ltd. against its tenant namely M/s. Hindustan Motor Finance Corporation Ltd. in the eviction suit being Title Suit No.1629 of 2003 is a collusive decree, cannot be accepted by us even though we find that the original lessee, namely, sole defendant therein did not contest the said suit and allowed the said suit to be decided ex parte against it.
Such conclusion we arrive at by looking at the pleadings of the object or viz, Calcutta Trade Syndicate which was made out in its application under Order 21 Rule 99, 100 & 101 of the Civil Procedure Code wherein the objector stated that the objector was in good term with its landlord who supplied the agreement of lease dated 27th March, 1991 executed between the head lessor and its lessee viz. M/s. Hindustan Motor Finance Corporation Ltd., to the objector. No case has been made out by the said objector to the effect that such good relationship between the objector and its landlord was destroyed subsequently.
Let us now consider the acceptability of the other contention of Mr. Mallick, learned Advocate appearing for one of the objectors/respondents, namely M/s. Calcutta Trade Syndicate.
It was contended by Mr. Mallick that by virtue of the said decree which was passed in favour of the head lessor against its tenant, the tenancy of M/s. Hindustan Motor Finance Corporation Ltd. stood forfeited, and since such forfeiture of lease was caused due to fraud, the tenancy of the objector under the original lessee remains unaffected and the objector according to Mr. Mallick, became a direct tenant under the head lessor , namely, M/s. Cooke and Kelvey Properties Pvt. Ltd. in view of the provision contained in Section 115 of the Transfer of Property Act.
For the sake of convenience, we like to reproduce the provision contained in Section 115 of the said Act hereunder:
Section 115. Effect of surrender and forfeiture on under- leases.- The surrender, express or implied, lease of immovable property does not prejudice an underlease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease, but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessee, or relief against the forfeiture is granted under Section 114.
Mr. Mallick contended that Section 111 of the Transfer of Property Act prescribes various modes of determination of the lease. One of such modes of determination of the lease is forfeiture which is provided in Section 111(g).
Section 111(g) of the Transfer of Property Act Provides that a lease of immovable property determines by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may renter; or (2) incase the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
In our view, the contention of Mr. Mallick, learned advocate, that the tenancy of the original lessee, namely, M/s. Hindustan Motor Finance Corporation Ltd. was forfeited as per the provision of Section 111(g) of the Transfer of Property Act is not at all acceptable to us as admittedly after the expiration of the original lease by efflux of time, no further lease was executed between the head Lessor and its lessee though an agreement to enter into such lease was executed between them.
Since no further lease deed was executed between the head Lessor and its lessee, such lessee became a monthly tenant by holding over as per Section 116 of the Transfer of Property Act and its tenancy will be governed by the West Bengal Premises Tenancy Act, 1956 from the date of expiry of the lease by efflux of time.
Having regard to the admitted fact that no further lease was executed between the head lessor and its lessee, no question can ever arise either for commission of any breach of any of the express condition of the lease deed or for forfeiting the lease by service of notice upon the lessee by the lessor.
As such we are of the view that this is not a case of forfeiture of the lease of the original lessee under Section 111(g) of the Transfer of Property Act. Here is the case where we find that the tenancy which was held over by the original lessee was determined by service of notice under Section 106 of the Transfer of Property Act by following mode of determination of lease as prescribed under Section 111(h) of the said Act. As such, Section 111(g) of the said Act has no application in the facts of the present case.
No case of surrender of lease by the original lessee in favour of the head lessor either expressly or impliedly has been made out by the objector in the instant case. If that be so, then Section 115 of the transfer of property Act cannot come into play. As such, we cannot agree with Mr. Mallick, learned advocate, that the tenancy of the sub-tenant under the original lessee remained unaffected despite an eviction decree was passed against the original lessee, in view of the provision of Section 115 of the Transfer of Property Act. The Miscellaneous Appeal No.969 of 2010 filed by the head lessor challenging the impugned order passed on Miscellaneous Case No.3117 of 2006 filed by Mr. Mallick's client is, thus, allowed. The impugned order passed in Miscellaneous Case No. 3117 of 2006 is, thus, set aside.
Let us now consider the merit of the other miscellaneous appeal which is directed against the impugned order passed on the miscellaneous case filed by Mr. Banerjee's client.
Mr. Banerjee contended that since the original lessee was allowed to hold over the said tenancy after expiration of the period of the registered lease by efflux of time and thereby the terms of such tenancy started to be governed by the West Bengal Premises Tenancy Act, 1956, the right which his client acquired under the said Act of 1956 cannot be affected even though the said Act of 1956 was subsequently repealed by the Act of 1997 in view of the provision of Section 8(c) of the Bengal General Clauses Act. According to him, in view of Section 13(2) of the Act of 1956, his client being known sub-tenant was a necessary party in the eviction suit and his client having not been added as a party in the said suit the decree passed in the said suit is not binding upon his client and his client cannot be evicted in execution of the said decree. He thus, supported the impugned order.
We do not find any substance in such contention of Mr. Banerjee, as we find that when 1956 Act was repealed by 1997 Act, the remedies which were available to the notified sub-tenant under 1956 Act, were not given to the sub- tenants in the 1997 Act which expresses a different intention behind such legislation by incorporating therein an exemption Clause under Section 3 of the said Act which provides that tenancy of present nature will be governed by the Transfer of Property Act which does not contain any provision for impleading the sub-tenant as party in the eviction proceeding filed by the head lessor against its lessee.
We hold that the protection which was given to the notified sub-tenant under Section 13(2) of 1956 Act was not retained in 1997 Act which provides for a different scheme altogether under Section 26 of the 1997 Act for elevating the sub-tenants to the position of direct tenant under the head lessor with a rider that the tenancy of the original lessee to the extent of the sub-tenancy held by such elevated tenant under 1997 Act, will stand extinguished.
Thus, we are unable to accept the contention of Mr. Banerjee that the right which his client acquired under Section 13(2) of 1956 Act was saved even after it was repealed by 1997 Act, in view of the provision of Section 8(3) of the Bengal General Clauses Act.
It is rightly pointed out by Mr. Roy Chowdhury, learned Senior Counsel appearing for the appellant that law is now well-settled to the effect that despite general authorization of sub-letting is granted to the lessee by the lessor in writing still then in order to sub-let legally, the tenant is required to obtain permission from the landlord separately before inducting a sub-tenant in his tenancy. No such consent was obtained from the head lessor before inducting Mr. Banerjee's client, in the instant case.
Mr. Roy Chowdhury, further contended that even no notice under Section 16 of the West Bengal Premises Tenancy Act, 1956 was served upon the head lessor either by the original lessee or by the sub-tenant for notifying creation of such sub-tenancy in favour of the Banerjee's client. Mr. Roy Chowdhury thus, contended that since no such notice was served intimating the head lessor about creation of sub-tenancy in favour of the Banerjee's client, under Section 16 of the said Act, such non-notified sub-tenant need not be joined as a party in an eviction suit filed by the head lessor against its lessee as the right of the sub- tenant to be added as a party under Section 13(2) of the said Act was given only to the notified sub-tenants that is to say, such right can be claimed by these sub-tenants who notified the creation of their sub-tenancies as per Section 16 of the said Act. To support such contention, he has relied upon the following decision of the Hon'ble Supreme Court:-
In the case of Shantilal Rampuria & Ors. -Vs- Vega Trading Corporation & Ors. reported in AIR 1989 SC 1819.
He thus, contended that since no notice under Section 16 of the said Act was admittedly served upon the head lessor either by lessee or by the sub-tenant, the sub-tenant could not acquire any right to be heard and/or added as a party in a suit for eviction filed by the head lessor against its lessee.
Since no such right was acquired by Banerjee's client being a non notified sub-tenant, Mr. Roy Chowdhury contended that preservation of such right even after the Act of 1956 stood repealed by 1997 Act, under Section 8 of the Bengal General Causes Act as contended by Mr. Banerjee cannot be accepted. We fully agree with such contention of Mr. Roy Chowdhury firstly for the reason that we find on perusal case record that creation of such sub-tenancy was not done by the original lessee after obtaining permission from the head lessor in the line of the decision of the Hon'ble Supreme Court in the case of Shantilal Rampuria & Ors. -Vs- Vega Trading Corporation & Ors. (supra) and secondly for the reason that creation of such sub-tenancy was not notified either by the tenant or by the sub-tenant as per the provision of Section 16 of the West Bengal Premises Tenancy Act 1956. Even creation of such sub-tenancy was not notified by any of such objectors and/or by their landlord under Section 26 of the West Bengal Premises Tenancy Act, 2001. As such sub-tenants namely the objectors in no circumstance can be regarded as direct tenant under the head lessor.
Even under the Transfer of Property Act which governs the tenancy of the original lessee as per Section 3 of the Act of 1997, does not provide for any additional protection to the sub-tenant as it was done under the Tenancy Act of 1956 for the notified sub-tenant. Thus, we hold by following the principle laid down by the Hon'ble Supreme Court in the case of Balavant N. Viswamitra & Ors. -vs- Yadav Sadashiv mule reported in AIR 2004 SC 4377, hold that the decree passed against the original lessee is binding upon the sub-tenant and non-joinder of such sub-tenant in the eviction suit filed by head lessor against its lessee will not make the eviction decree inexecutable qua sub-tenant. In our view the objector thus, have not acquired any independent right in respect of the suit premises.
In this regard, we like to refer to the decision of the Hon'ble Supreme court in the case of Rupchand Gupta Vs. Raghubanshi (Pvt.) Ltd. and another reported in AIR 1964 SC 1889 wherein the Hon'ble Supreme Court considered the binding effect of the decree passed against the lessee in a suit filed by the head lessor, upon the said tenant, even though the sub-tenants are not parties to the said suit. It was held therein that where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. It was further held therein that the decree in such a suit would bind the sub-lessee. It was also held that even passing of such a decree in a suit in the absence of the sub-lessee may act harshly on the sub-lessee but this is a position well-understood by him when he took the sub- lessee. It was also observed by the Hon'ble Supreme Court that the mere fact that the sub lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive one particularly when it was not suggested by the sub-lessee that its lessor had even a plausible defence to the claim for ejectment. According to the Hon'ble Supreme Court, collusion in judicial proceeding is a secret arrangement between two persons that the one who institutes a suit against the other in order to obtain a decision of a judicial tribunal for some sinister purpose.
Such evidence is missing from the side of the objector in the instant case. As such, we hold that the ex parte decree of eviction which was passed by the learned Trial Judge in favour of the head lessor cannot be regarded as a collusive decree. The said decree, in our view, is good, valid and operative and such decree is not only binding upon the judgment-debtor in the said suit but also is binding upon the sub lessees, namely, the objectors herein in view of the decisions of the Hon'ble Supreme Court as referred to above.
We further like to mention here that we do not find application of the principle as laid down by the Hon'ble Supreme Court in the case of Kai Khushroo Bezonjee Capadia Vs. Bai Jerbai Hirjibhoy Warden & Anr. reported in AIR (36) 1949 Federal Court 124. Cited by Mr. Banerjee in the facts of the present case as on perusal of the said judgment of the Hon'ble Federal Court we find that it was a case where head lessor accepted rent from the sub-tenant directly and in such circumstances the Hon'ble Federal Court held that the tenancy of the original tenants was surrendered and the sub-tenants became direct tenants under the head lessor. This is not the case between the parties in the instant proceeding. As such principle which was laid down by the Hon'ble Federal court in the said decision, in our considered view, has no application in the facts of the present case.
We also do not find any substance in the aforesaid contention of Mr. Banerjee, Senior learned Counsel appearing for the objector, namely, Expo International Properties Pvt. Ltd., as we find that since 10th July, 2001 when the West Bengal Premises Tenancy Act, 1997 came into operation, the tenancy of the M/s. Hindustan Motor Finance Corporation Ltd. started to be governed by the Transfer of Property Act in view of Section 3 of the West Bengal Premises Tenancy Act, 1997 which provides that the provisions contained in the said tenancy Act will not apply to a tenancy which is situated either in Calcutta or in Howrah Municipal jurisdiction where the tenancy is let out for commercial purpose and the rate of rent is more than ten thousand rupees per month.
Admittedly, the M/s. Hindustan Motor Finance Corporation Ltd. took the said tenancy for commercial purpose and the rent which was payable by it in July, 2001 was more than Rs.10,000/-. As such in our view the tenancy of M/s. Hindustan Motor Finance Corporation Ltd. will be governed by the Transfer of Property Act and since such tenancy was determined by service of notice by the head lessor under Section 106 of the Transfer of Property Act, the tenancy of the said M/s. Hindustan Motor Finance Corporation Ltd. in our view, stood determined in the mode as prescribed under Section 111(h) of the Transfer of Property Act. Since the tenancy of M/s. Hindustan Motor Finance Corporation Ltd. stood determined under Section 111(h) of the Transfer of Property Act , Section 115 of the said Act cannot have any application in the facts of the instant case.
We, thus, hold that the impugned order passed in Misc. case No.3459 of 2006 cannot be retained on record. The impugned order thus, stand set aside.
We, thus, allow the appeals by holding that the objectors in the respective Misc. Cases have not acquired any independent right in respect of the suit premises and the decree of eviction which was passed by the learned Trial Court in favour of the decree-holder against the judgment-debtor in Title Suit No.1629 of 2003 is binding upon the objectors being the sub-tenants under the original lessee, namely, M/s. Hindustan Motor Finance Corporation Ltd. viz the judgment-debtor in the said suit.
Both the appeals are thus, allowed. Impugned order passed in both the aforesaid miscellaneous cases are set aside.
We thus, direct the learned Executing Court to proceed with the Execution case in accordance with the law.
Both the appeals are thus, disposed of.
Let the lower Court records be sent down to the Court below immediately by special messenger at the cost of the appellant to be put in by the appellant in course of this day.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Ishan Chandra Das , J.)