Amarendra Kumar Dutta vs Sefali Roy Choudhury

Purushottam Chatterjee, J.—This petition u/s 115 of the CPC arises out of a suit which was filed as early as March 21, 1956, for ejectment of the, Defendant from the suit, premises. At that time West Bengal Rent Control Act of 1950 was in force. Subsequently while the suit was pending in the trial Court, the West Bengal Premises Tenancy Act, 1956, came into force. The latter Act gave a right to a sub-tenant who was introduced by the tenant without the consent of the landlord to make an application u/s 16(3) to be upgraded as a tenant. The Plaintiff who filed the suit was not the owner and the superior landlord. The Plaintiff was and still claims to be a tenant of the first degree. The Defendant was the sub-tenant but does not admit to be a sub-tenant now.

A proceeding was later started u/s 16(3) by the Defendant to up-grade himself into a tenant. That application finally was allowed on. February 23, 1957, and the Rent Controller decided that the Defendant would become a direct tenant of the superior landlord under the provisions of the West Bengal Premises Tenancy Act of 1956. Thereafter the Plaintiff who was the tenant and-still claims to be the tenant notwithstanding the order u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, applied for striking out the defence u/s 14(4) of the Rent Control Act, 1950. By an order of this Court in Civil Revision Gases Nos. 2741 of 1962 and 3142 of 1962, P.B. Mukharji, J. by consent of the parties directed as follows:

the order of the Rent Controller and the orders of the appellate officer dated June 14, 1962 and July 14, 1962, passed in Rent Control Appeal No. 44 of 1957 of the 8th Court of the Subordinate Judge, Alipore, will be considered as evidence in Title suit No. 188 of 1956 of the 6th Court of the Munsiff at Alipore and the learned Munsiff will consider the effect of those decisions in the trial of the issues in the suit and the suit will be decided accordingly. The Court will decide which of the two proceedings or both namely the suit for ejectment and the Section 16(3) proceeding will be binding upon the parties, (b) The tenant Dilip Narayan Roy Choudhury will continue depositing rents with the Rent Controller at the rate fixed by the Appellate officer till the decision of the suit. Let the hearing of the suit be expedited. The trial Court is directed to hear the suit within March 1, 1965.

But the trial Court could not hear the suit either within March 1, 1965, or up till now. The matter came to this Court again on March 15, 1966, and I directed in Civil Revision Case No. 3863 of 1965 as follows:

The learned Advocates for both sides have agreed that the issue as to whether there is a relationship of landlord, and tenant between the parties should be taken up along with the hearing of the petition u/s 14(4) of the West Bengal Rent Control Act, 1950. I, therefore, direct the Court to frame an issue as to whether there is a relationship of landlord and tenant between the parties, if not already framed, to determine that issue on such evidence as may be given by the parties and also to determine the petition u/s 14(4) of the Act on its own merits.

I express no opinion over the merits of the matter or of the issue.

After this order the trial Court took up the two matters, namely the petition u/s 14(4) of the West Bengal Rent Control Act of 1950 as well as the issue as to whether there was a relationship of landlord and tenant between the Plaintiff and the Defendant. The trial Court having considered the entire matter came to the conclusion that with effect from the date of the decision of the matter u/s 16(3) on February 23, 1957, the relationship of landlord and tenant ceased between the parties and in that view of the matter it dismissed the petition u/s 14(4) of Rent Control Act, 1950, and determined the issue No. 9 accordingly. Against that decision the landlord Plaintiff has moved this Court and obtained this Rule on April 7, 1967.

According to Mr. Chakraborty who appears on behalf of the Plaintiff landlord the decision of the Court below was entirely wrong. According to Mr. Chakraborty the application u/s 16(3) was filed under the Act of 1956 and the suit for ejectment was filed under the Act of 1950. u/s 40(2)(a) of the 1956 Act, even if the Act of 1950 ceased to remain in force and even if that Act had been repealed the parties in all pending proceedings will be governed by the rights under the old Act; it is urged that in considering that matter the Courts below should not have taken into consideration any order made in any proceedings under the provision of the 1956 Act and the case should be decided only on the basis of the 1950 Act and the Court should overlook so far as the proceeding for ejectment is concerned, anything that happened under the 1956 Act or, in other words, according to Mr. Chakraborty, the proceedings u/s 16(3) and the order therein must be treated as non est. In accepting this form I find two difficulties. The first one is that by an order of this Court in Civil Rule Nos. 2741/62 and 3142/62 this Court directed that the order of the Rent Controller u/s 16(3) and the order of the Appellate authority would be taken into evidence, and further this Court directed as follows: The learned Munsiff will consider the effect of those decisions u/s 16(3) in the trial of the issues in the suit.... The Court will decide which of the two proceedings or both namely the suit for ejectment and the Section 16(3) proceeding will be binding upon the parties.

Therefore, by virtue of the aforesaid order, the proceeding u/s 16(3) could not be treated in this Court and the Courts below as non est. Mr. Bijan Behari Das Gupta on behalf of the opposite parties has referred to me to another order passed by Banerjee, J. in Dilip Narayan Roy Chowdhury Vs. Amarendra Kumar Dutta, u/s 16(3) of the Act of 1956 and his Lordship expressed his opinion that the order of the Rent Controller would be binding between the parties.

The first question would, in terms of the judgment of P.B. Mukharji, J., be whether the order u/s 16(3) of the Act of 1956 would be binding between the parties. This suit is no proceeding for declaring that the order passed by the authorities in the proceedings u/s 16(3) of the Act of 1956 was void. The present proceeding is a suit for ejectment. Section 16 of the West Bengal Premises Tenancy Act, 1956, creates certain rights and liabilities which were not recognised, otherwise than by the provisions of that statute. Hence, the remedy given by that statute would be the only remedy. I would refer to the third principle laid down in Wolverhampton New Waterworks Co. v. Hawksford 6 C.B. (N.S.) 356 which has also been considered and followed by the Judicial Committee in the subsequent case Secretary of State v. Mask and Co. 67 I.A. 222. Therefore, ordinarily Civil Courts have no power to go behind that order and ordinarily there is no right of any of the parties to have the order declared null and void. The exceptions to such principles of law are laid down in Secretary of State v. Mask and Co. They are--(i) where there were violations of the fundamental principles of judicial procedure or (2) where the provisions of the state have not been complied with. There is absolutely no allegation in the present proceedings with regard to them. Secondly, this matter arises in this proceeding only collaterally and it is not a suit for a declaration that the order is void. I am, therefore, of opinion that the validity or the binding nature of the order u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, cannot be challenged nor can it be found in this suit to be inoperative.

Finally, on the merits of the matter I would agree that the order was a valid one. The petition was made by a person, namely, the Defendant on whom a notice to quit was served and who would not ordinarily be a tenant but still then the Defendant in the present proceeding who filed the petition u/s 16(3) of the Act of 1956 would be considered to be a tenant under the definition of the word ''tenant'' in that Act of 1956. The definition of the word ''tenant'' in that statute includes a person who was a tenant but against whom no decree for ejectment had till then been passed; the Defendant was not at the date of the proceeding u/s 16(3) a tenant by contract between the parties, that tenancy being determined u/s 111 of the Transfer of Property Act; but he would still be the person in possession of the tenancy against whom no decree for ejectment had till then been passed. Hence, the Defendant was a person who was competent to file the petition u/s 16(3). The validity of that order of the Rent Controller was challenged in revision case in this Court but that order has stood the test; that the order passed u/s 16(3) would be binding between the parties or would not be void or inoperative.

The next question is: Does Section 40 of the West Bengal Premises Tenancy Act, 1956, make any provision for overlooking the proceedings that were validly taken under the provisions of the West Bengal Premises Tenancy Act, 1956? It would be too much to say that Section 40(2)(a) of the West Bengal Premises Tenancy Act of 1956 debars the Court from taking into consideration the effect of the order passed in a matter u/s 16(3). I have already said that P.B. Mukharji, J. was pleased to direct that the said matter should be considered by the trial Court. Apart from that the non-obstante Clause in Section 40(2)(a) of the said Act, notwithstanding the repeal of the said Act, (a) any proceeding pending on March 31, 1956, may be continued as if the said Act had been in force and had not been repealed or had not expired.

The Act of 1950 was a temporary Act and it was repealed only one day before it would normally expire. There was doubt whether Section 8 of the Bengal General Clauses Act would apply. Hence, this section was introduced, and later on amended to over-rule any doubt about the application of Section 8 of the Bengal General Clauses Act to pending suits. In Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, the Supreme Court observed:

The non-obstante Clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new amendment.

This non-obstante Clause does not mean that the Court will not take into consideration any other law which may be relevant for the purpose. Section 40 of the West Bengal Premises Tenancy Act of 1956 provides that the suit will proceed as if the West Bengal Rent Control Act of 1950 was in force. But that does not mean all other laws including the Act of 1956 are to be neglected. Hence, I cannot say that rights arising out of a valid proceeding u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, must necessarily be overlooked in this suit and I do not agree with Mr. Chakraborty when he says that all these proceedings are to be overlooked because of the non-obstante Clause in Section 40 of the West Bengal Premises Tenancy Act of 1956. I, therefore, hold that the orders under the Section 16(3) proceeding are to be taken into account and the effect of the same has to be considered. That has also been the decision of P.B. Mukharji, J. It goes without saying that the proceeding u/s 16(3) was started during the pendency of the suit. The question then would be: whether the doctrine of lis pendens should apply to affect the rights of the parties in suit?

Mr. Chakraborty says that the doctrine of this lis pendens should apply though not in terms of Section 52 of the Transfer of Property Act. The provisions of the Transfer of Property Act apply to transfer inter-vivos and it does not apply to involuntary transfers. Mr. Chakraborty says that the principle of lis pendens would very much apply to such circumstances. Mr. Chakraborty refers to a decision of this Court in V.R. Verma Vs. Mohan Kumar Mukherjee and Another, . Mr. Chakraborty refers to the decision of P.N. Mookerjee, J. where his Lordship held that the order u/s 16(3) of the Act of 1956 would not affect a pending suit validly instituted u/s 13. It was observed that the order u/s 16(3) would not be available to the sub-tenant to defeat the pending suit. Mr. Chakraborty submits that if an order u/s 16(3) does not affect the rights of the parties in a pending suit u/s 13 of the very same Act of 1956, it would much less affect the right of the parties in a pending suit which was instituted at a time when Section 16(3) was not known. Mr. Chakraborty suggests that the rights of the parties would be determined as on the date of the suit, and nothing by act of parties thereafter would affect the rights of the parties in the suit and no other pending proceeding would affect the rights unless it is specially provided that such rights would be so affected. The observation of P.N. Mookerjee, J. in that case supports the contention of Mr. Chakraborty.

Mr. Chakraborty then refers to a decision of myself in Khusi Mohan Saha v. Subhas Saha 70 C.W.N. 1027. There also the doctrine of lis pendens was applied and it was held that right to restitution u/s 144 of the Code would not be affected by a pendente lite order u/s 16(3) of the Act and the decision of the Special Bench in V.R. Verma Vs. Mohan Kumar Mukherjee and Another, was followed.

Mr. Das Gupta on behalf of the tenant opposite party urges that the decisions made by the Rent Control authorities and the High Court with regard to the matter u/s 16(3) are final. Mr. Das Gupta refers to the observation of Banerjee, J. in a matter between the same parties arising out of proceedings u/s 16(3) of the West Bengal Premises Tenancy Act of 1964 in the case between the same parties (1). According to Mr. Das Gupta the order made u/s 16(3) is an order which is binding upon the parties. Therefore, from the date of the order, it is urged, it must be considered that there was no relationship of landlord and tenant between the parties and, as such, the order of the trial Court on the issue regarding the relationship of landlord and tenant is correct. Mr. Das Gupta also refers to the order of P.B. Mukharji, J. in Civil Revision Cases Nos. 2741 of 1962 and 3142 of 1962 whereby the tenant Dilip Narayan Roy Choudhury was directed to continue depositing rent with the Rent Controller at the rate fixed by the Appellate officer in the proceeding u/s 16(3) of the Act, 1956, till the decision of the suit. This order also, it is urged, supports the contention that after the proceeding u/s 16(3) it is that proceeding alone which would govern the relationship of the parties. Referring to the decision in V.R. Varma v. Mohan Kumar Supra Mr. Das Gupta says, it was not necessary for their Lordships in that case to consider anything more than the maintainability of the proceeding and all that was decided was that the proceeding was maintainable. Mr. Das Gupta also draws a distinction that the question there referred to the Special Bench was whether any notice u/s 106 of the Transfer of Property Act and any notice u/s 13(6) of the West Bengal Premises Tenancy Act need have been served upon the sub-tenant who had become a direct tenant pending the suit for ejectment and the answer was that such notices need not have been served. In considering that matter their Lordships discussed various aspects of the matter which were really not necessary for the purpose of the decision. In the facts of that case the suit was instituted by the superior landlord Mohan Kumar Mukherjee against Labh Singh, the tenant of the first degree and the sub-tenant V.R. Varma. Pending the suit an order was made u/s 16(3) and the sub-tenant became a direct tenant. As it was a suit under the West Bengal Premises Tenancy Act of 1956 the sub-tenant was made a party and the question was whether the sub-tenant, who was upgraded into a direct tenant pendente lite, should have been served with notices u/s 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956. Mr. Das Gupta says that the circumstances of the case before us are different. It is not the superior landlord who filed the suit against the tenant of the first degree. It is a case where the tenant of the first degree has filed a suit for ejectment against the sub-tenant. Therefore, the facts being completely different the principles stated on the facts of that case cannot be applied to the facts of the case before us. Mr. Das Gupta has next referred to a judgment of the Supreme Court in A.C. Estates Vs. Serajuddin and Co. and Another, . In the circumstances of the aforesaid case the superior landlord named, A.C. Estates instituted a suit for ejectment against his truant who was Poe. Poe sub-let to M/s. Sirajuddin & Co. In July 1954, the superior landlord instituted the suit for ejectment against his tenant Poe terminating the tenancy with the expiry of August 1954. This suit was also under the West Bengal Premises Rent Control Act of 1950. While the suit was pending West Bengal Premises Tenancy Act of 1956 came into force and sub-tenant M/s. Sirajuddin & Co. filed an application u/s 16(3) for being up-graded as a tenant. The application u/s 16(3) was allowed. It may be stated that the tenancy of the tenant of the first degree stood determined by an ejectment decree on August 22, 1956. After the decree for ejectment the Rent Controller u/s 151 set aside the order u/s 16(3). The High Court held that the Rent Controller had no power so to do. The High Court held that the original order of the Rent Controller allowing the Petitioner u/s 16(3) was good and valid and the Supreme Court affirmed that order. Mr. Das Gupta urges that the decision of the Supreme Court is that the order u/s 16(3) was good and binding between the parties and the pendency of the ejectment suit or the decree did not in the least matter. The Supreme Court according to Mr. Das Gupta did not refer to the doctrine of lis pendens and did not say that the order u/s 16(3) was subject to the order in the ejectment suit.

I agree with Mr. Das Gupta that it was so. The Supreme Court did not say that doctrine of lis pendens would affect the question and the Supreme Court held that the order u/s 16(3) would be binding. But the question of lis pendens was not considered in that case as it required no consideration. The suit was by the superior landlord against the tenant of the first degree. The relief claimed was that the tenant of the first degree be ejected. The proceeding u/s 16(3) was by the sub-tenant against the tenant of the first degree and the superior landlord and the result of the proceeding was that the tenant of the first degree was squeezed out and the subtenant became a direct tenant. Therefore, the ultimate decision in the suit would not in any way affect the decision in the proceeding u/s 16(3) nor the decision in the proceeding u/s 16(3) would affect the suit, because the result of both the proceedings would be that the tenant of the first degree would go out. It goes without saying that the doctrine of lis pendens does not apply unless the two rights affect each other prejudicially. In the circumstances of that an order u/s 16(3) would not affect the decree for ejectment prejudicially and vice versa. Therefore, it was not necessary for the Supreme Court to consider the doctrine of lis pendens or to consider the effect of the ejectment decree on the order u/s 16(3). In that case, further, the decree for ejectment was passed while the matter u/s 16(3) was pending. After the decree for ejectment there would be no question of lis pendens.

Coming to the facts of V.R. Varma v. Mohan Kumar Supra that was also a suit for ejectment by the superior landlord against the tenant of the first degree and the application was by the sub-tanent against the tenant of the first degree as well as the superior landlord. In the circumstances of that case as well the result of ejectment suit would be that the tenant of the first degree would be ejected. The result of the proceeding u/s 16(3) would also be that the tenant of the first degree would be squeezed out. Mr. Das Gupta may, therefore, be right in saying that the doctrine of lis pendens need not have been considered in the circumstances of that case, because the decision in one would not in any way affect the decision in the other. If the ejectment suit would be decreed, the tenant would be squeezed out, the same will be the result because of the order u/s 16(3). Therefore, Mr. Das Gupta may be right when he says the doctrine of lis pendens need not have been considered.

Mr. Das Gupta further says that the decision in Khusi Mohan v. Subhas Saha Supra does not also show that the question of lis pendens had to be decided in that matter. Mr. Das Gupta refers to the decision of Mr. Justice Banerjee in Dilip Narayan v. Amarendra K. Dutta Supra and said that the aforesaid decision would show the binding nature of the proceeding u/s 16(3). I entirely agree that the proceeding u/s 16(3) is binding between the parties and the Civil Court could not treat it as non est. The authority concerned was competent to decide the matter and, therefore, that decision would be considered to be binding between the parties.

But the question is whether the parties are to be considered as landlord and tenant inspite of the decision u/s 16(3) of the Act of 1956. If the doctrine of lis pendens applies, the decision on Section 16(3) would not affect, for the purpose of the present suit, the relationship of landlord and tenant and the sub-tenant may be ejected and the order u/s 16(3) would be infructuous. But if the suit is ultimately dismissed the doctrine of lis pendens would not thereafter operate and the sub-tenant would still be a direct tenant of the superior landlord.

It is indeed true that Section 52 of the Transfer of Property Act refers to transfer inter vivos but the principle underlying the doctrine is based on public policy, namely, during the pendency of a suit no party should be allowed to change his position. That doctrine has been applied to cases where the property in question is sold in invitum. Refer to Matilal v. Kerrabuddin 24 I.A. 170 (175). In Mahadeo Saran v. Thakur Prasad 14 C.W.N. 677 it has been observed that sale for arrears of Government revenue cannot be regarded as an alienation made by the proprietor so as to make the doctrine of lis pendens applicable. It has also been observed in Kadir Mohindra v. Muthu Krishna 26 Mad. 230 that the doctrine of lis pendens does not apply to the vesting of an insolvent''s property in an Official Assignee or other assignee in invitum. The question, therefore, is whether the doctrine of lis pendens would apply so far as the proceeding u/s 16(3) is concerned. In Mahadeo v. Thakur Prasad 14 C.W.N. 677 it was held that the doctrine of lis pendens is applied to sales in invitum, but it was also held that

where a property was attached in execution of a money decree and in the course of execution the property is sold for arrears of revenue, such attachments not being an incumbrance will not affect the sale for revenue.

The policy of the revenue law has been that the Government would be entitled to revenue and would be entitled to sell the property for revenue at a revenue sale and nothing not protected by that Act will be protected. Hence, the revenue sale pendente lite will affect earlier proceeding.

In Kadir Mohindra v. Muthu Krishna 26 Mad. 230 it was held that a pendente lite revenue sale would affect the rights, because the revenue sale would be in enforcement of the right of the Crown which is paramount to other rights.

In Puninthavelu v. Bhasaya ILR 24 Mad. 40 it was held that the rights of the Official Assignee would affect the pending litigation, because the Official Assignee could have been made a party to the original proceeding. Such cases may be distinguished on the ground that the relevant statutes in effect provide that the said doctrine would not apply. The policy of law in the doctrine of lis pendens is to protect individual right pending litigation whereas the policy of law in revenue sale or in insolvency proceeding is to protect the public interest or the interest of a body of persons and make it paramount to interests of individuals. A revenue sale cannot be treated as a sale by the judgment debtor as the Crown did not derive its interest from the judgment debtor. An Official Assignee similarly cannot in any, sense be considered to have derived his interest from the debtor.

Section 16(3) of the Act of 1956 determines the relationship among the three and protects the sub-tenant. Hence, the policy of law that individual rights shall not be altered pending the hearing of a suit applies and makes proceedings u/s 16(3) to be subject to that doctrine. That again is the opinion of the Special Bench of this Court in V.R. Varma v. Mohan Kumar Supra. I have accepted the same view as correct in Khusi Mohan v. Subhas Supra. Giving the entire matter second anxious consideration I hold that the doctrine of lis pendens should apply to such a case. Hence, I hold that the issue regarding the relationship of landlord and tenant should be answered in the following manner:

For the purposes of the present suit there is a relationship of landlord and tenant between the parties and the decision made in the proceeding u/s 16(3) would not control the decision in the ejectment suit.

Even though I decide that there is a relationship of landlord and tenant for the purpose of the present suit for ejectment I am not inclined to make an order u/s 14(4) of the West Bengal Premises Tenancy Act. The reason is that there has been an order by P.B. Mukharji, J. between the parties in a matter relating to Section 14(4) of the West Bengal Premises Tenancy Act as well as to a matter u/s 16(3) of the West Bengal Premises Tenancy Act. The orders were in Civil Revision Rules Nos. 2471 of 1962 and 3142 of 1962 and the

sub-tenant Dilip Narayan Roy Choudhury was directed to continue depositing rent with the Rent Controller at the rate fixed by the Appellate officer in the proceeding u/s 16(3) of the Act, 1956.

till the decision of the suit. In view of the aforesaid order for deposit of rent with the Rent Controller at the rate determined by him it would not be proper to pass any order u/s 14(4). Hence, the petition u/s 14(4) is rejected and the order of the Court below is affirmed to that extent. But the issue No. 9 regarding the relationship of the landlord and tenant is decided in the following manner:

For the purposes of the present suit for ejectment there is a relationship of landlord and the tenant.

It may be, I have no powers u/s 115 of the Code as the decision on issue No. 9 was made with the jurisdiction and it may be that the landlord might have been left to challenge the order in an appeal from the decree in the Appellate Court. But the suit was filed in 1956 and as there was an error of law apparent on the face of the record which goes to the root of the matter, I think it fit to exercise the powers of this Court under Article 227 of the Constitution and thus modify the answer to issue No. 9.

The Rule is disposed as above. The petition u/s 14(4) is rejected, but the answer to issue No. 9 is modified as aforesaid.

No order for costs.