Bisakh Dassi vs Radharani Biswas

P.N. Mookerjee, J.—This appeal is by the Plaintiffs and it arises out of a suit for a declaration that the Plaintiffs who were subtenants were entitled to remain in occupation of the disputed premises as direct tenants under Respondent No. 1 on the same terms and conditions existing between them and the tenant, Respondent No. 2. Respondent No. 1 is the superior landlord. Respondent No. 2 was the tenant under her and the Plaintiffs-Appellants claimed to be sub-tenants under Respondent No. 2.

In the suit, there was also a prayer for a permanent injunction, restraining Respondent No. 1 from taking possession or in any way disturbing the Appellants'' possession by executing the decree for ejectment, obtained by Respondent No. 1 against Respondent No. 2, which decree, according to them, was not binding upon them as they were not parties to the same.

The suit has been dismissed by the learned trial Judge. Hence this appeal by the Plaintiffs.

There is no dispute that the Appellants (Plaintiffs) were subtenants in respect of the disputed premises Under Respondent No. 2 who was the tenant under Respondent No, 1 (landlord). There is also no dispute that the Appellants did not serve any notice of their sub-tenancy u/s 16(2) of the West Bengal Premises Tenancy Act, 1956, on Respondent No. 1 (landlord), Because of the absence of this notice, the learned trial Judge has held that Respondent No. 1 was not bound to implead, in her suit for ejectment against Respondent No. 2, the present Plaintiffs-Appellants and that the decree, obtained by the landlord (Respondent No. 1) against the tenant (Respondent No. 2), was executable also against the sub-tenants (Plaintiffs-Appellants).

Before us the above view of the learned trial Judge has been assailed by Mr. Das who appears in support of this appeal. His contention is that as the impugned decree in the instant case was obtained in a suit for ejectment on the ground of the landlord''s reasonable requirement of the disputed premises under Clause (f) of Sub-section (1) of Section 13 of the above Act, the present Plaintiffs-Appellants, who were sub-tenants, were entitled to be impleaded in the said suit notwithstanding the fact that they had given no notice to the landlord (Respondent No. 1) u/s 16(2) of the above Act. In other words, Mr. Das''s contention is that once it is held that the Plaintiffs-Appellants here were sub-tenants, the landlord (Respondent No. 1) was bound to implead them in her suit for ejectment against the tenant (Respondent No. 2) on the ground of reasonable requirement of the disputed premises u/s 13(1)(f) notwithstanding non-service of any notice u/s 16(2) by the Plaintiffs-Appellants. For this proposition Mr. Das relies on Section 13 Sub-sections (2), (3) and (4) and in particular, upon the latter two sub-sections. In substance, Mr. Das''s contention is that the first part of Sub-section (2) which provides for the impleading of only those sub-tenants, who have given notice u/s 16(2), has no reference to and no connection with Sub-section (4) which stands independently and under which, all sub-tenants whether they have given the above notice or not, will have to be impleaded if the landlord Wants a decree under Clause (f) of Sub-section (1) of Section 13 as mentioned in the said Sub-section (4). Mr. Das seeks to reinforce this submission by reference to the language of Sub-section (3), which provides that, save as provided in Sub-section (2) and Sub-section (4), a decree or order for the delivery of possession of any premises shall be binding on every sub-tenant. On this provision, he contends that, in a case falling under Sub-section (4), the decree or order for delivery of possession of any premises would not be binding on any sub-tenant except as provided therein and in cases falling under Sub-section (2), the decree or order will not be binding on a sub-tenant except as under the said sub-section. The substance of his submission is that the provision for impleading sub-tenants as provided in the first part of Sub-section (2) has reference to cases other than cases coming under Sub-section (4) or, in other words, to cases other than cases of ejectment under Clause (f) of Sub-section (1).

We are unable to accept this contention. Oh a reasonable construction, the first part of Sub-section (2) should be held to be the only provision which entitles a subtenant to be impleaded in a suit for ejectment by the landlord on any of the clauses including Clause (f) of Section 13, Sub-section (1). Sub-section (4) obviously refers to the case of a subtenant who has been impleaded in the suit, or, in other words, whom it is necessary to implead in the suit for ejectment, as the sub-section clearly contemplates agreement by the particular sub-tenant, which would be impossible unless the said sub-tenant is a party to the suit. On a reference to the language of Sub-section (2) first part, it is obvious that the said language is general and applies to all suits for ejectment under any of the clauses of Section 13(1). This is confirmed by the proviso to Sub-section (2) where there is reference to Clause (f) also which indicates that the earlier part of that sub-section has also reference to that clause. The proviso grants certain protection to the sub-tenant except in cases of Clause (f) or (g) of Sub-section (1) and Sub-section (4) only supplements it by providing for protection to the sub-tenant in a, case under Clause (f) also. In other words, the proviso to Sub-section (2) and Sub-section (4) must be read as complementary Or as supplementary to each other in the matter of protection to sub-tenants and it is this aspect of the matter, which is referred to in Sub-section (3), where reference is made therein to Sub-section (2) and Sub-section (4). Neither the proviso to Sub-section (2) nor Sub-section (4) has any bearing on the question as to which, if any, of the sub-tenants are to be impleaded.

It is to be remembered in this connection that under the general law, no sub-tenant is to be impleaded in a suit for ejectment by the landlord against the tenant and the only exception to this general law is to be found in the first part of Sub-section (2), which provides that sub-tenants, who have given notice u/s 16(2) of the Act, are to be impleaded in suits for ejectment by the landlord against the tenant. As we have already said, Sub-section (4) refers only to the case of a sub-tenant who has to be impleaded in a suit for ejectment and such a sub-tenant, in the view which we have expressed above, must be a sub-tenant coming under the first part of Sub-section (2), which is the only provision under which sub-tenants are entitled to be impleaded in suits for ejectment by the landlords against the tenants. We, accordingly, hold that Sub-section (4) cannot be read independently of the first part of Sub-section (2) and accordingly no sub-tenant who has not given notice u/s 16(2) will come under it or can claim the protection under the said Sub-section (4).

In the above view, we hold that the Plaintiffs-Appellants were not necessary parties to the suit for ejectment in which the impugned decree for ejectment was obtained by Respondent No. 1 against Respondent No. 2 and accordingly, they are not entitled to make any grievance against the said decree and cannot get a declaration of their right to remain in the disputed premises in spite of the said decree or a permanent injunction, restraining Respondent No. 1 (landlord) from executing the said decree against them to oust them from such possession.

We have sufficiently explained why the decision in the instant case should go against the Appellants but, by way of further clarification, we may add the following.

As we have said above, so far as the present point is concerned, the relevant provisions are Sub-sections (2), (3) and (4) of Section 13 of the above Act, and under them, the relative scheme of the statute, starts by providing for impleading of certain sub-tenants, to wit, sub-tenants, who have given notice u/s 16(2), in suits for ejectment by landlords against tenants upon all the grounds, permissible under the statute, as indicated by the reference to the same in the proviso to Sub-section (2) of Section 13. That proviso, on its language, is comprehensive in this respect and obviously refers to all the clauses of Section 13(1) and this applies to all suits for ejectment, coming under the Act. The statute then provides, in the said proviso, a limited protection in favour of sub-tenants, or, more precisely, such sub-tenants as are to be impleaded as aforesaid, this protection, however, extending to cases, covered by Clauses (f) and (g) of Section 13(1), as expressly mentioned in the proviso in question. From Sub-section (2), read as a whole including its proviso, it is thus fairly clear that, even in a case under Clause (f) of Section 13(1) the only sub-tenant who is entitled to be impleaded is one, who has given notice u/s 16(2); but even such a sub-tenant would have no protection in such a case under the said Sub-section (2), or for the matter of that, under its proviso, to be more precise. Sub-section (4) then enacts that, even in a case u/s 13(1)(f) a sub-tenant, that is, a sub-tenant who agrees to the order under the said Sub-section (4) and is thus a party to the suit, or in other words, one who has right to be impleaded and that takes us to Sub-section (2) and points to a subtenant, who has given notice u/s 16(2), will be entitled to the limited protection, as provided in the said Sub-section (4) and that thus will not be without any protection in spite of the absence of any protective safeguard in his case in the earlier provision, namely, the proviso to Sub-section (2) and Sub-section (3) only affirms and emphasises the above protections, that is, in favour of the sub-tenants, eligible for the same under Sub-section (2) or, in other words, sub-tenants who have given notice u/s 16(2), the relative or relevant protective provisions being contained in the proviso to Sub-section (2) in cases other than under Clauses (f) and (g) and in Sub-section (4) in cases under Clause (f), there being no protection in a case under Clause (g).

In the premises, the Appellant''s suit was rightly dismissed by the learned trial Judge and his decree of dismissal must be affirmed. We, accordingly, dismiss this appeal but this dismissal will, in the circumstances of this case, be subject to this that the impugned decree for ejectment will not be executable against the Appellants until the expiry of June next, provided, of course, that they go on depositing, in the trial Court, to the credit of the decree-holder Respondent No. 1 sum of Rs. 70 (Rupees seventy) per month, month by month, regularly, according to the English Calendar, within the 15th of the next succeeding month according to the same Calendar, on account of current mesne profits. In default of any two of such deposits, that decree for ejectment will become executable at once and above provision for time or grace period will automatically lapse.

There will, however, be no order for costs, either in this Court or in the Court below.

D. Basu, J.

I agree.