Natesan vs Krishnankutty Moothan and Others

Velu Pillai, J.—Pursuant to an order of eviction of the second respondent, made under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949, which may be referred to hereafter as the Act, the first respondent applied to the Munsiff at Palghat, to execute the order and put him in possession, when, the petitioner herein, offered resistance which, after investigation, was ordered by Ext. P. 1 to be removed. This petition is to quash Ext. P. 1 and has been filed under Articles 226 and 227 of the Constitution. The petitioner''s case is, that as the President of a Sanghom and as representing it, he has been in possession of the premises as the sub-lessee of the second respondent, and that the order for eviction made without him on the array of parties is not binding on him. The reasoning on which the Munsiff passed Ext. P. 1 is not sustainable, but on that ground it cannot be set aside, under either Article 226 or Article 227 of the Constitution. The learned counsel for the first respondent supported Ext. P. 1, on the terms of section 12 C of the Act, which provides that:

any order for the eviction of a tenant passed under this Act shall be binding on all sub-tenants under such tenant, whether they were parties to the proceeding or not, provided that such order was not obtained by fraud or collusion.

The learned counsel for the petitioner then challenged the validity of section 12C, as infringing the petitioner''s fundamental right to hold property under Article 19(1)(f) of the Constitution. His argument was, that he had a right to hold or enjoy the leasehold, which cannot be affected by a proceeding to which he was not a party, and in which, his defence was not heard.

It is necessary to determine, whether the petitioner has a fundamental right at all under Article 19(1) (f), granting that he was a sub-lessee under the second respondent. It is clear law, that a sub-lease is determined when the period of the lease expires or the lease is determined by notice to quit. Similarly, where forfeiture is incurred by the lessee, except where it has been procured in fraud of the sub-lessee or relief is granted against forfeiture, the sub-lease also comes to an end; in other words, the interest of the sub-lessee subsists only so long as that of the lessee lasts. There may be a distinction in the case of a voluntary surrender by the lessee to the prejudice of the sub-lessee. As against the land-lord, possession is with the lessee and the latter may allow a sub-lessee or a licensee or a servant of his, to occupy the premises; but none of them can set up a right as against the landlord in spite of the lessee. It was held in Sheikh Yusuf v. Jyotish Chandra Banerjee (A. I. R. 1932 Calcutta 241) that in execution of a decree obtained by a landlord against his lessee, a sub-lessee, though no party to the decree is liable to be evicted. The question was considered both on principle and authority by B. K. Mukherjea J., as he then was, in Sailendra Natha Bhattacharjee v. Bijan Lal Chakravarty (A. I. R. 1945 Calcutta 283). After laying down the law, as stated above, that when the period of a lease comes to an end or the lease is determined by a proper notice to quit, or the lease is forfeited, the sub-lease comes to an end, the question whether a decree obtained by the landlord against his lessee, will be binding on the sub-lessee was considered and answered in the affirmative. The principle was stated thus:

Now it is a settled principle of law that a judgment inter partes can bind only those who are parties or privies to it. In the law of estoppel, as Bigello points out, one person can become a privy to another, (1) by succeeding to the position of that other as regards the subject of the estoppel and (2) by holding in subordination to that other. The ground of privity is property and not personal relations........but the position may be different in the case of the subordinate holder, e.g., when a sub-lessee holds under a lessee. If the interest of the subordinate holder is of such a character that it is entirely dependent on that of the superior holder and automatically comes to an end as soon as the superior interest is extinguished, the subordinate holder would be a privy to the judgment obtained against the superior holder even though he was not a party to the action. If the interest of the lessee, therefore, is determined in such a way that the interest of the sub-lessee is extinguished along with it, a lawful judgment against the lessee which gives effect to the determination of the lessee''s rights must of necessity extinguish the subordinate rights of the under-tenant. In such cases, it is immaterial whether the interest of the under-tenant began before or after the suit.

This furnishes a complete answer to the argument of the learned counsel for the petitioner, that the order of eviction passed against the lessee is not binding on him, as he had no opportunity of being heard in defence to eviction. The grounds for eviction u/s 7 of the Act are such, as to bring the case within the scope of the above principle, and an order for eviction of the lessee on such grounds, is binding on the sub-lessee, although he is no party to the proceeding. No question of fraud or collusion in eviction proceedings arises. The Supreme Court has, without deciding it, assumed this to be the correct state of the law, in Jagadguru Gurushiddaswami Vs. Dakshina Maharashtra Digambar Jain Sabha, , citing the two Calcutta cases referred to above. A similar view has been taken by the Bombay High Court in Jairam Jadowji v. Nowroji Jamshedji Plumber (23 Bombay Law Reporter 1316). If so, the petitioner, even if he is the sub-lessee, cannot be held to have any interest in the property after the determination of the lease in favor of the second respondent. No fundamental right under Article 19 (1) (f) can be claimed by the petitioner, and he is not entitled to impugn the validity of section 12C of the Act.

It follows that the petitioner is not entitled to any relief. The petition is dismissed with costs to the first respondent, including Advocate''s fee Rs. 100/-.