Haripada Bhowmick vs Krishna Chand Arora and Ors

P.N. Mookerjee, J.—The petitioner before us was opposite party No. 1 in a proceeding before the Rent Controller, Calcutta, under sec. 16(3) of the West Bengal Premises Tenancy Act, 1956. The initial application, on which the said proceeding was started, was filed on August 22, 1958. In that application, the case of the applicant, who is opposite party No. 1 before us, was that the present petitioner, as the benamdar of the present opposite party No. 2, who was the tenant in respect of the disputed premises under the superior landlord, opposite party No. 3, was the said applicant''s ostensible landlord and that the said applicant was really a tenant under the present opposite party No. 2, that tenancy having been created under a document dated August 11, 1954, between the present petitioner as benamdar of the said opposite partly No. 2 and the said applicant, the present opposite party No. 1, The applicant''s case was that this sub-tenancy under opposite party No. 2 had been created without the consent of the superior landlord, opposite party No. 3, and he (the applicant), having given notice, as required by sec. 16(3) of the West Bengal Premises Tenancy Act, 1956, of his said sub-tenancy to the said superior landlord, the opposite party No. 3, was, in the circumstances, entitled to a declaration that, on the passing of the said Act he had, under sec. 16(3) of the same, become a direct tenant under the said superior landlord, opposite party No. 3. To this proceeding, the superior landlord (opposite party No. 3) the tenant under the said superior landlord, namely, the present opposite party No. 2 and also his alleged benamdar, the present petitioner, were made parties. The application was opposed by both the present petitioner and opposite party No. 2 who denied, inter alia, the applicant''s material allegations, including his (the applicant''s) claim to the sub-tenancy in question and contended that the aforesaid application was, under the circumstances, not maintainable in law.

A preliminary objection also appears to have been taken to the said application on the ground that sec. 16(3) would apply only to the case of an admitted sub-tenancy and the Rent Controller would have no jurisdiction to go into the question of sub-tenancy where there was a dispute as to the same and the matter could then be gone into only by the appropriate Civil Court. On this question, the learned Controller found in favour of the applicant, but, at the same time, he held that, so far as the question of benami was concerned, on which the applicant''s application, as originally tiled as aforesaid, depended, it could not be raised or gone into at the instance of the said applicant as he would be estopped from raising the said question by reason of sec. 116 of the Indian Evidence Act.

There appears, however, to have been an amendment of the applicant''s original application by incorporating therein an alternative case to the effect that, even if the question of benami be found against the said applicant, or, for any reason, be not open to him to raise or agitate, he would still be entitled to relief under the aforesaid section, namely, sec. 16(3) of the West Bengal Premises Tenancy Act, 1956, upon the footing that, in view of the above document or indenture, dated August 11, 1954, in the light of the connected indenture or guarantee deed, to which the present opposite party No. 2 and the petitioner and the said original applicant, namely, opposite party No. 1 to the present Rule, were all parties, the said applicant would be a subtenant or a tenant under opposite party No. 2 in view of the forfeiture of the aforesaid tenancy of the present petitioner under the said opposite party No. 2 on account of the happening of events or circumstances, contemplated in that behalf by the aforesaid indentures. This alternative case was sought to be raised by amending the original application by the insertion therein of a new paragraph as paragraph 2-A and the said amendment was allowed. In view of this amendment and this paragraph 2-A, raising this alternative case, the Controller, while holding that the question of benami, as alleged in his original application by the applicant, could not be raised or gone into by reason of the law of estoppel, as enacted in sec. 116 of the Indian Evidence Act, expressed the view that it was open to him (the applicant) to proceed with this alternative case in the present proceeding. He, accordingly, directed the proceeding to continue on that footing. Against this decision, the present Rule was obtained by the petitioner who, as aforesaid, was opposite party No. 1 to the original application before the learned Controller.

The petitioner contended that the applicant''s application should have been thrown out in limine upon the ground that sec. 16(3) would apply only where there is an admitted sub-tenancy and would be excluded where the sub-tenancy in question is disputed. On this particular question, however, we are in full agreement with the Rent Controller in the view he has taken, namely, that sec. 16(8) would apply even in cases of disputed sub-tenancies. Our attention was, no doubt, drawn to sub-section (2) of sec. 16 and we were asked to interpret sec. 16(3) with reference to that subsection and to construe the words "in any case mentioned in sub-section (2)", as appearing in sub-section (3), as referring to a case, where the tenant and the sub-tenant had both given notice under sub-sec. (2), or, in other words, as referring to a case only of an admitted sub-tenancy. In our view, this contention cannot be accepted, having regard to the provisions of sub-section (3) itself and also the language of sub-section (2), The case of sub-tenancy, mentioned in sub-sec. (3), with reference to sub-sec. (2), would be a case of sub-tenancy of the premises either in whole or in part, without the consent in writing of the landlord and without also his oral consent, but it would not require anything more. If we read sub-sec. (3) as confined to cases of admitted sub-tenancies with reference to sub-sec. (2), which, of course, provides for the giving of notice by the tenant and the sub-tenant in case of certain sub-tenancies mentioned or specified therein, we would really be ignoring the language of sub-sec. (3) itself which, by necessary implication, at least, if not wholly expressly, in its relevant part, speaks of the section coming into operation at the instance of either the sub-tenant or the landlord where either the sub-tenant and/or the tenant has given notice. This is quite apparent, and, indeed, evident, from the following words in the said sub-sec. (3), namely, "on an application made to him in this behalf either by the landlord or by the sub-tenant within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of the notice by the subtenant, as the case may be," which show that, at least, in the case of the sub-tenant''s application the issue of notice by him is enough.

It is to be noticed further that the construction of sec. 16(3), as suggested above by the petitioner, would also lead to an impossible situation. If the said contention or construction be correct, then sub-section (3) would be rendered almost nugatory, because, in most cases, where toe sub-tenant claims relief under the said sub-section, the tenant''s interest would obviously be affected and it would either be diminished or extinguished and it would be wholly unnatural to expect the tenant, except in a very few cases, where it would be to his interest, to agree or assent to such diminution or extinguishment and, therefore, to give notice of the sub-tenancy and it would also take most of the cases out of the purview of sub-sec. (3), because, in most of such cases, the sub-tenancy would be disputed and, under those circumstances, the subtenant would be claiming relief under the said sub-section.

In our opinion, the construction, sought to be put upon sec. 16(3) by the present petitioner as aforesaid, appears to be whlloy untenable, unnatural and unreasonable and we are unable to accept the same. We need only add that the giving of notice, as provided in sub-sec. (2) of sec. 16 is no part of the ''case'', dealt with by the said sub-section, but it constitutes the discharge of an obligation or duty, imposed and prescribed by the statute in such a case or cases, they being and comprehending, inter alia, all cases of pre-Act sub-tenancies, created without the landlord''s consent and coming under the Act, irrespective of other considerations. We would, therefore, affirm this part of the order of the learned Controller, whereby he rejected the petitioner''s contention on the question of construction of the above sec. 16(3) of the Act. At the same time, however, having looked into the materials we are clearly of opinion that, in the circumstances of this case, the applicant must make a choice between his two cases, namely, the original case of his being a sub-tenant by reason of the present petitioner being the benamdar of opposite party No. 2 and the alternative claim, introduced by the amendment, of his becoming a sub-tenant by reason of forfeiture of the tenancy of the present petitioner under the terms of the aforesaid indentures. The two cases appear, in the facts of this case, to be inconsistent. In the circumstances, we asked Mr. Chakravarty whether his client would press both his cases or would be content to stick to one and Mr. Chakravarty intimated to us that, having considered the matter, his client would agree to go on with his aforesaid original case on a point, which we shall presently indicate and would give up the alternative case, raised by the amendment.

The applicant''s alternative case, therefore, would no longer require consideration by the Rent Controller and, on or with regard to his (applicant''s) original case also, the bar or estoppel in the circumstances of the present case, would apply against the said applicant, only if the present petitioner was his landlord and inducting landlord. That is practically settled law in circumstances like the present and estoppel under sec. 116, so far as it is relevant here, cannot and should not be extended beyond that. This is not the case of a person in possession taking up a tenancy, as in (1) 54 I.A. 276 and the wider aspect of sec. 116, stressed in (2) 64 I.A. 311, vis-a-vis (3) 42 I.A. 202, is not relevant here. It is not also a case where the tenant took his lease or tenancy under some mistake or ignorance (as to the title of the person who purported to grant the same) so as to fall within the exception, noted in (4) Vinjamuri Venkatanarasimhacharyulu Vs. Jami Gangaraju (amended as) Ganiraju, . The enquiry, therefore, should be limited here as above in the light of (5) 40 C.W.N. 460, which correctly laid down the law, relevant for our present purpose, and in the light also of the distinction drawn and relied on by Patanjali Sastri, J. as he then was, for laying down a substantially similar principle in the above-quoted Madras Case (4) ( Vinjamuri Venkatanarasimhacharyulu Vs. Jami Gangaraju (amended as) Ganiraju, ).

It is necessary, therefore, to find out whether the present petitioner was the landlord and the inducting landlord in respect of the tenancy or sub-tenancy, claimed by the applicant, opposite party No. 1, or whether opposite party No. 2 is his real landlord and inducting landlord, as claimed by him (the said applicant). It is true that this particular question of induction by opposite party No. 2 was not, in so many words, raised or mooted before the Rent Controller by the said applicant; nor does it appear to have been alleged in his original application, which alone will be the material application now. But it must lie remembered that the proper time for making such an allegation or raising such a case that the applicant was inducted by the said opposite party No. 2, whom he now alleges to be his real landlord, would arrive, only when the bar of sec. 116 of the Indian Evidence Act was pleaded to the applicant''s allegation of benami, as made by him in his aforesaid application. The fact that it was not expressly urged before the learned Rent Controller, when the matter was considered by him, would not also, in our opinion, in the circumstances of this case, be sufficient to disentitle the applicant to have a consideration of the said question.

In the circumstances. While affirming the view of the learned Rent Controller on the point, on which apparently, the present Rule was taken, we would remit the case to him with the following directions, namely, that, the alternative case, as raised by the amendment by the insertion of paragraph 2A in the original application, would be taken to have been given up by the applicant and would no longer be open to him and would not need any consideration by the Controller. The applicant, however, should be allowed to prove that ho was inducted on the disputed premises by opposite party No. 2, who, according to him, is his real landlord and, if be succeeds in proving the same, then obviously, the bar of sec. 116 of the Indian Evidence Act would not apply as against him and the question of benami, as alleged by him, would be and would have to be,--considered by the Rent Controller in all its aspects after allowing the parties to lead proper evidence on the point. If, on the other hand, the finding on the above question, namely, that the applicant was inducted by his alleged real landlord, opposite party No. 2, be against the applicant, no further question will arise and his application would stand rejected.

Before, however, taking up the above question of the applicant''s induction tan the disputed land, the learned Rent Controller will first consider whether the applicant can claim a tenancy in respect of the said premises under the indenture, dated August 11, 1954 between him and the present petitioner. If, on that question, the finding be in the negative, then also the application will be dismissed. If, however, on the said question, the finding be in the affirmative, the further question of induction as aforesaid, will be considered and determined by the Rent Controller and the proceeding will, thereafter, be decided and disposed of according to law.

The Rule is disposed of as above and the case is remitted to the learned Rent Controller to be considered and finally disposed of by him in terms of this order and in accordance with the directions, contained in this judgment.

The costs of this Rule will abide the final result of the proceeding before the Rent Controller.

In view of our above order, the application for review, already filed before the Rent Controller, has become useless, unnecessary and infructuous and it need not be considered or proceeded with at all.

Niyogi, J.

I agree.