Nityananda Kapuria vs Pa(sic) Nath Dutta and Others

Lahiri, J.—This is an appeal by an alleged sub-tenant against a judgment of the Special Bench of the Presidency Small Cause Court dismissing his appeal u/s 47 of the Code of Civil Procedure. The undisputed facts which are material for the purpose of the present appeal may be shortly stated as follows :

The appellant claims that he is a sub-tenant in respect of room No. 6 of premises No. 13, Pageaputty Street, under respondent No. 8, Bharat Mills Agency Ltd., at a monthly rental of Rs. 85. Respondent No. 8, Bharat Mills Agency Ltd., was a tenant under the landlords, respondents Nos. 1 to 7, in respect of rooms Nos. 6, 30 and 31 at a monthly rental of Rs. 257-2-0. On March 13, 1952, the landlord respondents Nos. 1 to 7 obtained an ex parte decree for ejectment against their tenant Bharat Mills Agency Ltd., on the ground of default under clause (1) of the proviso to subsection (1) of section 12 of the West Bengal Premises Rent Control Act, 1950. The landlord respondents then put that decree into execution against their tenant and they also sought to eject the appellant in execution of that decree. The appellant thereupon filed an application u/s 47 of the CPC alleging that he had acquired the statutory right of a tenant directly under the landlord under sub-section (2) of section 13 of the Act of 1950.

The executing court came to the conclusion that the right claimed by the appellant could not be agitated in a proceeding u/s 47 of the CPC but must be determined by a declaratory suit.

An appeal against that decision was dismissed by the Special Bench of the Presidency Small Cause Court on the ground that no appeal lay from an order u/s 47 of the Code made by the executing court. Against that judgment the appellant has filed this appeal. It is conceded before us that the decision of the Special Bench is not right. We have therefore to examine if the Court of first instance was right in its conclusions.

Mr. Poddar. appearing in support of the appeal, has contended that the right claimed by his client can and should be decided in a proceeding u/s 47 of the Code of Civil Procedure, because, according to him, his client is a representative of the judgment-debtor within the meaning of section 47 and therefore he is entitled to maintain his application under the said section.

The difficulty, however, of accepting this argument is that the right which is claimed by the appellant u/s 13(2) of the West Bengal Premises Rent Control Act, 1950, is a right which is independent of the right of the tenant judgment-debtor. Section 13(2) of the Act provides that if the tenancy of the tenant is determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to sub-section (1) of section 12, the sub-lessee shall be deemed to be a tenant in respect of such premises holding directly under the landlord of the tenant whose tenancy has been determined. The plain meaning of this provision is that if the landlord obtains a decree for ejectment against his tenant on any ground other than a ground of reasonable requirement, the subtenant becomes a statutory tenant directly under the landlord. It is quite clear that this right is a right which is independent of the tenant and for this reason the sub-tenant cannot be said to be privy to the judgment which was pronounced against the tenant. For this reason, we are constrained to hold that the sub-tenant cannot be said to be a representative of the judgment-debtor for the purpose of asserting his rights u/s 13(2) of the West Bengal Premises Rent Control Act, 1950.

Mr. Poddar invited our attention to the decision of a Division Bench of this Court in the case of S.N. Talapatra Vs. Bengal Bonded Ware House Association, , where it was held that if the landlord dispossesses a subtenant in execution of a decree obtained against the tenant, the sub-tenant has a right to apply under Order XXI, rule 100 of the CPC Although this decision was cited by Mr. Poddar, it seems to us that it goes against his contention to the effect that the right asserted by his client could be enquired into u/s 47 of the Code of Civil Procedure, because Order XXI, rule 100 applies where any person "other than the judgment-debtor" has been dispossessed of immovable property in execution of a decree. If a sub-tenant is entitled to maintain an application under Order XXI, rule 100. as has been held in this case, he must be a person "other than the judgment-debtor". Section 47 of the CPC applies to judgment-debtors and their re presentatives-in-interest, whereas Order XXI, rule 100 applies to persons "other than judgment-debtors". The decision in S. N. Talapatra''s case is, therefore, an authority for the proposition that a sub-tenant claiming rights u/s 13(3) of the West Bengal Premises Rent Control Act, 1950, is a person "other than the judgment-debtor" and therefore he cannot come u/s 47 of the Code of Civil Procedure. We accordingly hold that the court of first instance was correct in holding that the right claimed by the appellant could not be enquired into or ascertained in a proceeding u/s 47 of the Code.

Mr. Poddar argued, in the second place, that assuming that his application was not maintainable u/s 47 of the Code, the trial Court had jurisdiction to convert the proceeding u/s 47 of the Code into a suit. It seems that this point was raised before the trial court but that court negatived this contention on the ground that under clause (g) of section 19 of the Presidency Small Cause Courts Act that court had no jurisdiction to try the suit for a declaration of the statutory tenancy right of the subtenant. We cannot accept this view as correct. u/s 16, read with Schedule B of the West Bengal Premises Rent Control Act, 1950, the Small Cause Court Judge had jurisdiction to try the ejectment suit as a court of the Subordinate Judge under the Bengal. Agra and Assam Civil Courts Act of 1887 and he undoubtedly passed the decree for ejectment in this case as such a Subordinate Judge. If that be so. u/s 37 of the Code of Civil Procedure, he had jurisdiction to execute the decree which was passed by him and he had also jurisdiction to entertain all objections relating to execution, discharge and satisfaction of the decree u/s 47 of the Code. Consequently, under subsection (2) of section 47 he had jurisdiction to treat the proceeding u/s 47 as a suit on payment of additional court-fees by the appellant. We are accordingly of the opinion that the trial court failed to exercise a jurisdiction vested in it by law upon an erroneous view that it was deciding the application u/s 47 of the CPC as a Presidency Small Cause Court.

For the reasons given above, although we affirm the decision of the court of first instance as to the maintainability of the application u/s 47, we must send back the case to that court for the purpose of giving the appellant an opportunity of converting his application into a plaint on payment of additional court-fees, if any, under sub-section (2) of section 47 of the Code of Civil Procedure. After that is done, the usual procedure prescribed for a suit will 1 e followed by the Subordinate Judge.

In the result, this appeal is allowed, the decree of the court of appeal below set aside and the case sent Lack to the trial court for decision in the light of the observations made above. In the circumstances of this case, it is desirable that the matter should be disposed of as quickly as possible. No order is necessary on the application u/s 115 of the Code. As the point upon which the appellant succeeds in this Court was not taken in the memorandum of appeal in this Court, we think the appellant is not entitled to his costs.

Mitter, J.

I agree.