Calcutta High Court (Appellete Side)
Mansurezzaman & Ors vs Must. Maimunne Khatoon & Ors on 21 February, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 21.2.2014
ac FMA 861 of 1982 Mansurezzaman & Ors.
-versus-
Must. Maimunne Khatoon & Ors.
Mr. Jiban Ratan Chatterjee, Mr. S. S. Arefin.
Ms. Farida Khatun.
... For the Appellants.
This miscellaneous appeal is directed against the judgment and/or order being no. 67 dated 20th March, 1982 passed by the Learned Judge 5th Bench, City Civil Court at Calcutta in Misc. Case No. 662 of 1980 arising out of a proceeding under Order 21 Rule 97 of the Civil Procedure Code at the instance of the landlord/decree holder.
The application for grant of police help filed by the landlord/decree holder was rejected by the Learned Executing Court by holding, interalia, that Khurshed Hossain who resisted the execution of the said decree was a notified sub-tenant and since he was not impleaded as defendant in the eviction suit, the decree passed against the tenant in the said suit is not binding upon the sub-tenant, even though the decree of eviction passed by the Learned Trial Judge was affirmed in appeal by this court.
Let us now test the legality of the said order in the facts of the instant case.
Here is the case where the landlord filed an eviction suit against the admitted tenant for recovery of possession of the suit premises from the tenant on the ground of reasonable requirement. The suit was contested by the tenant by filing written statement denying the allegations made by the plaintiffs in the plaint. The tenant did not disclose in the written statement that he sublet the suit premises to the aforesaid subtenant, namely, Khurshed Hussain. Ultimately the suit was 2 decreed on contest by the Learned Trial Judge on the ground of plaintiff's reasonable requirement of the suit premises. Being aggrieved by and dissatisfied with the said judgment and/or decree passed in the said suit, the tenant preferred an appeal before this Court, but ultimately he failed to succeed in the said appeal.
Thereafter, when the landlord/decree holder put the decree into execution for recovery of possession of the suit premises from the judgment debtor/tenant, the bailiff was resisted by a third party viz., the said sub-tenant. For removal of such resistance, the decree holder filed the said application under Order 21 Rule 97 of the Code of Civil Procedure for recovery of possession of the suit premises with police help.
The judgment debtor appeared in the said proceeding and contended that he never resisted the decree. As such, police help cannot be granted for recovery of possession from him.
The opposite party no. 3, namely, Khurshed Hossain, who resisted the execution of the said decree appeared in the said proceeding and filed objection contending therein that the premises was sublet to him by the original tenant before commencement of the West Bengal Premises Tenancy Act, 1956. He, further, contended that the landlord was intimated about the creation of such sub-tenancy by him as per the provision contained in Section 16(2) of the said Act. He, thus, claimed that in view of Section 13(2) of the West Bengal Premises Tenancy Act, the decree which was passed against the tenant is not binding upon him as he was not made a party in the eviction suit filed by the landlord/decree holder against his tenant.
The Learned Executing Court upheld such contention of the subtenant and rejected the decree holder's 3 application for grant of police help by holding, interalia, that the decree which was passed in the said eviction suit was not binding upon the subtenant and as such the said decree cannot be executed against him.
Mr. Chatterjee, Learned Senior Advocate, appearing for the decree holder/appellant contends that the said subtenant cannot be regarded as a notified subtenant as the tenant did not put the landlord with notice about creation of such sub-tenancy by her. He, thus, submits that the said Khurshed Hussain being not a notified subtenant, the landlord/decree holder was not required to implead him as a defendant in the said suit and the decree which was passed against the tenant was binding upon such non-notified subtenant. According to him, the protection under Section 13(2) of the said Act can be availed of by only these subtenants, where creation of such sub-tenancy was notified to the Landlord both by the tenant and the subtenant as per the provision of Section 16(2) of the said Act.
Let us now consider as to how far such contention of Mr. Chatterjee can be accepted in view of the provision contained in Section 13(2); read with the provision of Section 16(2) of the West Bengal Premises Tenancy Act, 1956.
For the sake of convenience of understanding, the provisions contained in Section 13(2) and Section 16(2) of the said Act are set out hereunder:
Section 13(2) - "The subtenant, if any, referred to in Section 16 who have given notice of their sub-tenancies to the landlord under the provision of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord:
Provided that except in case covered by clause (f) or clause (g) of sub-section (1), no decree or order or judgment shall be passed against any such 4 subtenant unless any of the grounds mentioned in clauses (b) to (e) and (h) apply to him".
Section 16(2) - "Where before commence-ment of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or any part, the tenant and every subtenant 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".
On reading of the aforesaid provisions, it is clear that creation of sub-tenancy is required to be notified by both, the tenant and the subtenant, under sub-section 2 of Section 16 of the said Act. Section 13(2) of the said Act makes it abundantly clear that if creation of sub-tenancy is notified by the subtenant alone, he can get the protection against eviction under subsection 2 of Section 13 of the said Act.
Section 13(2) of the said Act, does not, provide that the protection which is given to the subtenant will not be made available to him in case the tenant does not notify the creation of such sub-tenancy to the landlord.
As such, on con-joint reading of Section 13(2) and Section 16(2) of the said Act we have no hesitation to hold that though creation of such sub-tenancy is required to be notified by both the tenant and subtenant under Section 16(2) of the said Act, but, even if, the landlord is not notified about the creation of such tenancy by the tenant, still then, the protection which is available to the subtenant under Section 13(2) of the said Act cannot be denied to him in case, creation of such sub- tenancy is notified to the landlord by the subtenant under Section 16(2) of the said Act.5
As such, we do not find any reason to interfere with the impugned order, particularly when, the creation of sub- tenancy was notified to the landlord by the sub-tenant and the Learned Executing Court also found that all necessary particulars which were required to be furnished by such subtenant regarding creation of such sub-tenancy were duly intimated to the landlord/decree holder.
Thus, we do not find any merit in this appeal. The appeal fails and is thus dismissed. The order of the Learned Executing Court is affirmed.
(Jyotirmay Bhattacharya, J.) (Arindam Sinha, J.)