Calcutta High Court
J.C. Chakraborty And Co. And Ors. vs Shantilal Rampuria And Ors. on 10 January, 1997
Equivalent citations: (1997)1CALLT360(HC)
Author: Tarun Chatterjee
Bench: Tarun Chatterjee
JUDGMENT Sidheswar Narayan, J.
1. The appellants being the plaintiffs in Title Suit No. 235 of 1991 of the City Civil Court, 7th Bench, Calcutta are aggrieved of the order dated 19.4.1991 of the said court, whereby their prayer for injunction under Order 39 Rule 1 & 2 read with Section 151 of the CPC of restraining the superior-landlords from executing the decree for ejectment in execution case No. 103 of 1990 arising out of Ejectment Suit No. 650 of 1972 was refused.
2. Whereas the demised premises situate in the second floor of the holding No. 8/B, Lal Bazar Street, P.S. Hare Street, Calcutta has already undergone litigation for twice between the superior landlords and the tenant and a decision has been ultimately made by the Supreme Court in favour of the landlords upholding their right to evict the tenant therefrom, a fresh suit, suit No. 235 of 1991, has been initiated now by the sub-tenants claiming independent right of tenancy so as to avoid enforcement of the earlier decree for ejectment. Since the sub-tenants were not parties to the earlier suit, they have pleaded inter alia that the decree passed in the earlier suit was not enforceable against them.
3. The relevant facts are that the defendant--respondents No. 1 to 14 (hereinafter called as the superior landlords) being the real owners of the demised premises inducted the defendant--respondent No. 15 (hereinafter called as the tenant corporation) as a tenant therein under the terms and conditions mentioned in a Registered deed of lease dated 23.4.1948. The tenant-corporation by virtue of the terms and conditions embodied in the deed of lease inducted the plaintiffs-appellants as sub-tenants in different portions of the demised premises and, accordingly, the said appellants came in occupation of their respective tenanted portions while paying rent to the tenant-corporation. In the year 1960, the superior landlords filed an Ejectment Suit No. 978 of 1960 in the City Civil Court at Calcutta for ejectment of the tenant-corporation alleging default in payment of rent and also induction of sub-tenants. The suit was, however, dismissed with costs by the Judgment dated 30.10.1962. Subsequently, the superior landlords filed another Ejectment suit being Ejectment Suit No. 650 of 1972 in the City Civil Court at Calcutta alleging again default in payment of rent and sub letting. This suit was decreed in favour of the superior landlords for ejectment of the tenant-corporation, vide judgment dated 7.3.1974. The tenant corporation there upon preferred an appeal before this court, which was numbered as appeal No. 407 of 1974. The appeal was allowed by the order dated 3.9.1976 of this court, and, accordingly, the judgment and decree passed by the trial court was set aside. Thereupon, the superior landlords filed special leave appeal before the Supreme Court, where Civil Appeal No. 331 of 1978 was registered and the same was allowed while setting aside the decision of this court and restoring the decree of eviction passed by the City Civil Court against the tenant-corporation in Ejectment Suit No. 650 of 1972. The decree is in the process of execution in Execution Case No. 103 of 1990 of the City Civil Court at Calcutta.
4. It was during the course of the above execution proceeding that the plaintiffs/appellants, being the sub-tenants have come up with a fresh suit mainly on the ground that since they were not parties to the earlier suit between the superior landlords and the tenant corporation, the decree passed therein was not enforceable against them and also that, by the operation of law, they have acquired independent right of tenancy directly under the superior landlords, and, accordingly, they were not liable to be evicted from the demised premises.
5. Before we look into the contentions raised by the plaintiffs/appellants be it recorded at the outset that the incident of sub-tenancy has been taken care of by the Rent Control Act of this State (i.e. West Bengal) and there were statutory provisions already made with regard thereto in the West Bengal Premises Tenancy Act. What was most relevant in the instant case is that in the year 1956, there were certain additional advantages given to the status of the sub-tenants by enacting the West Bengal Premises Tenancy Act (12 of 1956), which replaced the earlier Act of 1950 i.e. the West Bengal Tenancy Act, 1950. Section 16 of the new West Bengal Premises Tenancy Act, 1956 (to be referred as the Act of 1956) made provisions of affording an opportunity of upgrading their rights as that of the tenants of first degree directly under the superior landlord subject to certain condition. The provision runs as follows:--
"(1) Where after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sublet shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such sub-letting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination.
(2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give notice to the landlord of such subletting in the prescribed manner (within six months of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination.
(3)......................................................................................................."
6. In the instant case, the appellants have claimed an independent right of tenancy directly under the superior landlord by the operation of law possibly as hereabove provided under Section 16 of the Act of 1956 and, accordingly, they have raised contention to avoid the decree of ejectment passed against the tenant-corporation otherwise in so far as the non-inclusion of the sub-tenants as parties to the earlier suit was concerned, a clear answer is available in Section 13(2) of the Act of 1956 (discussed subsequently). In this context, Mr. Roy Chowdhury, counsel for the appellants has put much emphasis on the observation made by the Supreme Court with reference to the sub-tenants in the Civil Appeal No. 331 of 1978, arising out of the earlier suit of 1972 between the superior landlords and the tenant-corporation and the controversy between the parties centers around the said observation at least for the purpose of grant of injunction. The observation as contained in para 11 of the Judgment (supra) may be extracts as follows :--
"None of the sub-tenants has been impleaded in the present suit, but as it is not the case of the tenant-corporation that any of them had sent any notice to the plaintiffs, the suit, so far the present respondent is concerned can not fail on the ground of their non-impleedlng. However, the sub-tenants can not be bound by the finding in this suit that they have failed to serve a notice as prescribed by the Act on the plaintiffs and will be entitled to be heard if and when the plaintiffs seek their eviction. So far the sub-tenants who had been inducted in the premises earlier and were parties to the 1960 suit may have still a better claim on the strength of the decree in their favour and may insist that they would be entitled to continue in possession as tenants directly under the plaintiffs."
7. A plain reading of the observation above would at the best make out a case in favour of the sub-tenants that (i) the ultimate finding in the earlier suit (Ejectment Suit No. 650 of 1972) regarding failure to serve notice of sub-tenancy upon superior landlord (as required under Section 16 of the Act of 1956) will not be binding against the sub-tenants and if the sub-tenants raised any such point with regard to the notice before any competent court of law, they would be entitled to hearing and that (ii) such sub-tenants, who had been inducted in the premises earlier then the enforcement of the Act of 1956 and were also parties to the suit of 1960 (Ejectment Suit No. 978 of 1960) may have still a better claim on the strength of the decree in their favour (in favour of their landlord i.e. the tenant of first decree) and may insist that they would be entitled to continue in possession as tenants directly under the superior landlords.
8. So far as the first aspect of the observation mentioned in (i) was concerned, it was most significant to note that the present plaintiffs/ appellants have no-where either in their plaint or in their memo of appeal have asserted to have served any such notice to the superior landlords as required under Section 16 of the Act of 1956. In absence of any such contention raised on behalf of the sub-tenants (i.e. the appellants) no question of investigating any such issue arises so as to give a chance for hearing in a subsequent suit or legal proceeding as incidentally observed by the Supreme Court in para 11 of the judgment, referred to above. It may be further added here that the observation of the Supreme Court was possibly not with reference to any issue then raised in the appeal to determine the status of the sub-tenants, rather it appears that it was observed like that only by way of considering the eventuality of any sub-tenant claiming service of notice, who was not a party to the earlier suit in any view of the matter, since there was no assertion made on behalf of the appellants to have served a notice under Section 16 of the Act of 1956, we would, most certainly, agree with the submissions made by Shri Dasgupta, counsel for the answering landlords-respondents that there are arises absolutely no question for affording an opportunity of hearing to the plaintiffs/appellants.
9. In so far as the sub-tenants who had been inducted in the demised premises prior to the enforcement of the Act of 1956 mentioned in (ii) above, the Supreme Court has made it clear that if such sub-tenants were also parties to the suit of 1960, they may have a better claim on the strength of the decree passed in the said suit. It may be mentioned here that the suit of the year 1960 being Ejectment Suit No. 978 of 1960 had been dismissed in favour of the tenant-corporation i.e. the tenant of the first decree. In this view of the matter it goes without saying that had any of such sub-tenants been a party to the said suit, the order of the dismissal of the suit in between the superior landlord and subtenants would have been binding upon the superior landlord unless otherwise explained. Therefore, in our considered opinion, the above observation of the Supreme Court does not mean to say that the subtenants, who had been inducted before the enforcement of the Act of 1956 would have any additional advantage beyond what has been provided under Section 16 of the said Act, even without being a party to the suit of 1960. The better claim as observed by the Supreme Court was there only on the strength of the decree passed in the suit of 1960 and not because of the operation of law as it existed prior to the enforcement of the new act of 1956 i.e. to say under any provision of W.B.P.T. act, 1950. Hence even in this view of the matter it has to be borne in mind that the plaintiffs/appellants were not to gain anything on the strength of the observation as made in para 11 of the Judgment (supra) of the Supreme Court.
10. In context with the above observation of the Supreme Court, it may further be added that out of the present plaintiffs/appellants, it were only appellant Nos. 9, 11, 12, 15 and 17 (as submitted in course of argument) who were there from before the enforcement of the Act of 1956, whereas the remaining plaintiffs/appellants were inducted some time after the enforcement of the said Act. Mr. Roy Chowdhury, counsel for the appellants has been able to draw our attention towards the details of those five sub-tenants given in the body of the plaint of the suit of 1960 but the reference of those sub-tenants had been made in the plaint towards particulars given by the superior landlord alleging sub-tenancy by the tenant-corporation and definitely not by way of impleading those subtenants as parties to the suit. Be that as it may, in view of the analysis in the preceeding paragraph even those sub-tenants (i.e. appellant Nos. 9, 11, 12, 15 and 17) can not be put to any better footing as compared to the remaining appellants.
11. The learned counsel for the appellants has further urged that even though the notice under Section 16, after the enforcement of the Act of 1956, was not served upon the superior landlords by the sub-tenants and such a step was neglected, by them, their tenancy would not cease unless the Controller of rent passes an order to cease the sub-tenancy as provided under Clause 3 of Section 16 of the said Act. In this view of the matter, it was further urged that the rights and obligation of the sub-tenants would thus be governed under the provisions of Section 12(1)(c) ad 13(2) of the Act of 1950. In this context, a decision of the Division Bench of this court in the case of Ramkiran Das v. Smt Radharani Dasi and Ors. as reported in 1980 (1) CLJ, 197 was referred to in support of the above contention. As against this, it would be however apposite to straight way refer to a subsequent decision of a Division Bench of this court in Smt. Hiranmoyee Devi and Ors. v. Maharaj Kumar Suman Chandra Nandi and Ors., reported in 1982 (1) CLJ, 229 as relied upon on behalf of the respondents landlords. The earlier decision of the Division Bench has been distinguished in this authority and, we are most certainly inclined to place reliance on the subsequent decision in the case of Smt. Hiranmoyee Devi. The legislative intention as formulated in Section 16 of the new Act appears to be quite explicit that it was incumbent upon the sub-tenants to give notice of their sub-tenancy in order to entitle to claim protection thereunder. The object behind it was obviously to provide a scheme and machinery to render it certain as to who are the sub-tenants that would be entitled to relief under the other provisions of the Act i.e. to say under Section 13(2) of the said Act. It was true that the provisions of Section 16 of the Act mean to upgrade the status of sub-tenants to that of a tenant of first decree but that was not an absolute right given to them rather it was subject to some mandatory obligations on their part and that was to serve notice upon the superior landlord and to establish direct communication with him so that the interests of the tenant of first decree may submerge under the fresh lease in the matter.
12. Moreover, there was no scope left for the appellants to escape the obligation under Section 16 of the new Act even in view of the saving clause under Section 40 of the said Act. This was for the simple reason that no suit or proceeding was pending in the instant case on the day when the said Act came into force. Section 40 of the new Act simply protected only those right of the pre-Act sub-tenants, which had already accrued to them during the period when the Act of 1950 was in force and, accordingly, it made provision under Section 40 that any pending proceeding or remedy in respect of any right and liability under the old Act will not be adversely affected by the new Act. The additional advantage of up-grading the status of the sub-tenants, granted under the new Act was, however, not denied to the sub-tenants of the pre-Act period (i.e. of the period before enforcement of the new Act). The rider clause as provided in Section 16 of the new Act for serving notice was of course mandatory and it was a condition precedent to avail of the benefit of upgrading the status and to claim independent right by the sub-tenants. This view, we adopt, also finds direct support from the interpretation made and principle laid down in the authoritative decision of the Supreme Court in the case of Smt. Safali Roy Chowdhury and Ors. v. A.K. Dutta, reported in AIR 1976 SC 1819 and of this court in the case of Lakshmi Rani Das and Ors. v. Hari Sankar Das, reported in 1982(1) CLJ 350. The legislation intention and the mandatory nature of the provision of Section 16 of the new Act with regard to the notice by the sub-tenant have been emphasised in these two decision. Banking upon this legal proposition we find no case, much less a prima facie case, made out in favour of the appellants.
13. The earlier decision of this court in 1982(1) CLJ 352 has set as rest that when a tenant who has been inducted before the commencement of the 1956 Act did not give any notice and also did not apply under Section 16 of the 1956 Act, he would be bound under Section 13(3) of the said Act by a decree or order for possession of any premises passed or made against the tenant of the first degree under Section 13(1) of the said Act. only those sub-tenants who had given notices under Section 16 of the 1956 Act of their sub-tenancies, shall be made parties in terms of Section 16(2) and such notified sub-tenants under the proviso to Sub-section (2) of Section 13 of the 1956 Act unless any of the grounds mentioned in Clause (b) to (e) and (h), applied to him. In the instant case as well it is manifest that the appellants did not take recourse to serve notice under Section 16 of the new Act of 1956 and, accordingly, they would be bound by the decree or the order of possession of the demised premises passed in the earlier suit against the tenant of the first decree.
For the reasons aforesaid, we find no merit in the appeal. This appeal is thus dismissed. There shall be, however, no order as to costs.
Certified copies of the Order be given to the parties within two weeks from the date of it, if applied for.
Tarun Chatterjee, J.
14. I agree.