Ratish Chandra Guha vs Nagendra Nath Das

Das Gupta, J.—The Respondent Nagendra Nath Das brought the suit out of which this appeal has arisen on the allegation that the first Defendant Santi Ranjan Saha took lease of two rooms in 10H Paramhangsa Deb Road, Chetla, of which he is the owner, as a monthly tenant but defaulted in payment of rent from March 1949 and that from the beginning of 1948 this first Defendant sublet the entire premises to the second and third Defendants. It was averred that the Defendant Santi Ranjan had ceased to be a tenant by operation of Section 12(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, hereafter referred to as the Act, or the 1948 Act and so he had become a trespasser and that Defendants Nos. 2 and 3 had also no right to occupy the rooms. Though the Plaintiff''s case is that the tenancy comprised only two rooms, he has treated, for the purpose of this case, another room, which, according to him, the Defendants Nos. 2 and 3 had been occupying forcibly, as part of the tenancy. He asked for a decree for ejectment against all the Defendants and also for a decree for arrears of rent against Defendant No. 1. Santi Ranjan Saha, Defendant No. 1, did not contest the suit. Defendants Nos. 2 and 3 contended that they were not sub-tenants under Defendant No. 1; that, in fact, Defendant No. 1 was never a tenant of the Plaintiff for the premises and that it was Defendant No. 2 who took settlement of all the three rooms from the Plaintiff but used to pay the rents into the hands of Defendant No. 1 as the Plaintiff''s agent in accordance with the Plaintiff''s instructions. It was further pleaded that even if it was held that Defendant No. 1 is a tenant under the Plaintiff and Defendants Nos. 2 and 3 sub-tenants under him, they became direct tenants under the Plaintiff u/s 11(3) of the Act.

The trial Court disbelieved the defence case and held that Defendant No. 1 was a tenant under the Plaintiff for two rooms and Defendants Nos. 2 and 3 were sub-tenants of Defendant No. 1 for these rooms but wrongfully occupied a third room also. He held further that Defendant No. 1''s tenancy under the Plaintiff was determined by non-payment of rent for three consecutive months. The trial Court decreed the suit and ordered that the Plaintiff would get khas possession of the premises by evicting all the Defendants and gave the Plaintiff also a decree for arrears of rent claimed and damages at the monthly rate of rent for the period from June 1, 1949, till the date of the Court''s order on payment of additional Court fees, otherwise the damages would be decreed to the extent tentatively valued in the suit. There was also an order that the Plaintiff would get a further decree of damages for the period subsequent to the date till khas possession on filing application and Court fees.

On appeal, the learned Subordinate Judge, Alipore, agreed with the findings, but held as regards the claim for arrears of rent that Defendant No. 1 alone was liable. He, therefore, dismissed the appeal and affirmed the judgment and decree of the trial Court with this modification that the Plaintiff would get a decree for Rs. 180 on account of arrears of rent as against Defendant No. 1 and the decree for this amount as against Defendants Nos. 2 and 3 would be set aside.

Neither the trial Court nor the Court of Appeal recorded any separate finding on the question whether u/s 11(3) of the Act, Defendants Nos. 2 and 3 had become direct tenants under the Plaintiff. Obviously, they thought this to be unnecessary as both of them were of the opinion that the subletting to Defendants Nos. 2 and 3 was not lawful subletting.

The main contention before us is that the subletting was lawful subletting and that u/s 11(3) of the Act, the Defendants Nos. 2 and 3 became direct tenants under the Plaintiff as soon as the tenancy of Defendant No. 1 was determined by reason of default in payment of rent for three consecutive months. The relevant portion of Section 11(3) is in these words:

Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1), be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord on the terms and conditions on which such person would have held under the tenant if the interest of the tenant had not been so determined.

In order that a sub-tanent shall be "deemed to be" a direct tenant under the landlord, two conditions have to be satisfied. The first is that he is a sub-tenant by a lawful act of subletting by the tenant; the second is that the interest of the tenant-that is, the immediate landlord of the sub-tenant-has been lawfully determined, otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1) of Section 11.

We have, therefore, to consider first whether the subletting as found by the Courts below by Defendant No. 1 to Defendants Nos. 2 and 3 was lawful subletting. It has to be remembered that u/s 108 of the Transfer of Property Act, the lessee has, in the absence of a contract or local usage to the contrary, the right to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property. It is nobody''s case that there was any local usage "to the contrary". If there had been in Defendant No. 1''s contract of tenancy with the Plaintiff any stipulation that Defendant No. 1 would not have the right to sublet at all or would not have the right to sublet without consent of the landlord, the question would arise whether the subletting against the terms of the contract would be unlawful subletting and the Court would have to consider the question whether what appears prima facie to be unlawful should be held to be "unlawful subletting" in the absence of any condition of re-entry and whether if there was acceptance of rent by the landlord after knowledge of the subletting, there had been waiver of the breach of the covenant. In the present case, we are not concerned with these questions as it is not the Plaintiff''s case that there was in the contract of tenancy any stipulation against subletting. It is contended, however, that the subletting was unlawful as it violates the provisions of Clause (b) of the proviso to Sub-section (1) of Section 11 of the Act. Section 11(1) provides:

Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree for recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable by this Act and performs the conditions of the tenancy.

This is subject to the proviso that nothing in this Sub-section shall apply if any of the things mentioned in Clauses (a), (b), (c), (d), (e) and (f) happen. Clause (b) of this proviso is in these words:

Where the tenant has sublet, or otherwise transferred his interest in, the premises-

(i) for more than six consecutive months and to the extent either of the whole or a major portion of the premises, in the absence of any contract or other authority in writing expressly permitting such subletting or transfer, or

(ii) in any manner in contravention of the terms of a contract in writing expressly prohibiting such subletting or transfer.

It is contended on behalf of the landlord that this clause in effect puts a legal bar to the right of subletting which the lessee has under the provisions of Section 108 of the Transfer of Property Act. If this was a legal bar, the contention that the subletting was unlawful must necessarily follow. I am unable to see, however, anything in this clause in the nature of any legal bar or prohibition against subletting. The clause does not prohibit subletting; but merely provides that if there is subletting in the manner mentioned therein, nothing in the Sub-section shall apply, that is, the tenant will not get the benefit of the special protection against a decree or order for recovery of possession being passed. If the tenant sublets in spite of this, he takes the risk of such deprivation. I cannot see how it can possibly be said that he commits an unlawful act by such subletting.

It may be pointed out that the original subletting in the present ease took place when the Calcutta Rent Ordinance, 1946, was in force. If there had been anything there forbidding subletting without consent of the landlord, I would have been prepared to agree that the subletting was unlawful. I am unable to find anything in that Ordinance forbidding subletting. In its Section 12, there are provisions similar to those in the first Sub-section of Section 11 of the 1948 Act. The first Sub-section of 12 of the Calcutta Rent Ordinance, 1946. provides:

Notwithstanding anything contained in the Transfer of Property Act, 1882 the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872 no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Ordinance and. performs the conditions of the tenancy:

-almost word for word, the same as Sub-section (1) of Section 11 of the 1948 Act. There was a proviso to this that nothing in this Sub-section shall apply if any of the circumstances mentioned in Clauses (a), (b), (c) and (d) happened. Clause (b) of the proviso-was in these words:

Where in the absence of any contract to the contrary the tenant has, without the consent in writing of the landlord, sublet the premises in whole or in part,

as in the case of Clause (b) of the proviso to Section 11(1) of the 1948 Act, so in the case of Clause (b) of the proviso to Sub-section (1) of Section 12 of the 1946 Ordinance, I am of opinion that it does not prohibit subletting. Its only effect is that if the tenant sublets without consent in writing of the landlord, nothing in the first Sub-section of Section 12, namely, the provision, that no order or decree for recovery of possession of any premises shall be passed so long as the tenant pays rent and performs the conditions of the tenancy, will apply. There was no prohibition nor any legal bar whatsoever placed by this clause to subletting without the consent in writing of the landlord.

My conclusion therefore is that the subletting by Defendant No. 1 to Defendants Nos. 2 and 3 was a lawful subletting within the meaning of Sub-section (3) of Section 11 of the Act.

The next question is whether the interest of the tenant in the premises was "lawfully determined" otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1) of Section 11 of the Act. On the findings of both the courts below, the interest of Defendant No. 1 in the premises became ipso facto determined by the tenant failing for three consecutive months to pay the rent. The determination is clearly "otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1)". The question is whether it was "lawfully determined" within the meaning of the Sub-section. It was held in Haralal Das and Another Vs. Pasupati Charan Biswas and Others, , that the expression "lawfully determined" in Haralal Das and Another Vs. Pasupati Charan Biswas and Others, (2) of the Rent Control Act of 1950 means the determination of the contractual tenancy u/s 111 of the Transfer of Property Act as well as the withdrawal of the statutory protection afforded by Section 12(1) of the Act. Lahiri J. pointed out that "to hold that a sub-tenant is elevated to the position of a tenant as soon as the tenancy is determined u/s 111 of the Transfer of Property Act would be equivalent to allowing the sub-tenant to usurp the status of a tenant even at a time when the original tenant continued to be a tenant u/s 12(1) of the Rent Control Act". Though Section 111 of the Transfer of Property Act says that "a lease of immovable property determines by efflux of the time limited thereby" and by the happening of certain other things as mentioned therein, the Court held that this was not effective determination of the tenant''s interest as the tenant will continue to have his interest in spite of the lease because of the special provisions of Sub-section (1) of Section 12 of the 1950 Act. This position has, I think, to be carefully borne in mind in interpreting the words, "lawfully determined" in Section 11(3) of the 1948 Act also and it must be held that mere determination of the lease u/s 111 of the Transfer of Property Act is not lawful determination of the tenant''s interest for the purpose of Section 11(3), for the simple reason that in spite of such determination, the tenant''s interest will continue because of the provisions of Section 11(1) unless there is scope for the operation of the proviso thereto. Where there has been ipso facto determination of the tenant''s interest u/s 12(3) of the Act. the tenant gets no benefit from Section 11(1) of the Act as Section 12(3) provides that on such ipso facto determination of the tenant''s interest "he shall no longer be deemed to be a tenant" In such a case, therefore, there is effective termination of the tenant''s interest as soon as there is determination u/s 12(3) and such termination does not depend on anything else to become effective.

Prima facie, therefore, a determination u/s 12(3) is "lawful determination" within the meaning of Section 11(3) of the Act.

On behalf of the Respondents it is, however, contended that such determination u/s 12(3) of the Act is outside the scope of Section 11(3). This contention is based on the argument that the operation of Sub-section (3) of Section 11 is limited only to the cases where a decree for recovery of possession is made on one or more of the grounds mentioned therein. This argument cannot be accepted. I can find nothing on principle or authority to justify the conclusion that because the provisions enacted in Sub-section (3) occurs in the same section as Sub-section (1), operation of the provisions of Sub-section (3) should be limited to what has gone before in Sub-section (1).

A somewhat similar argument was addressed before an English Court in Cohen v. The South Eastern Railway Company 1876-1877 Ex.D. 2. 253. There the question arose whether provisions of Section 7 of the Railway and Canal Traffic Act, 1854, applied to the case. It was argued that Section 16 of the Regulation of Railways Act, 1868, did not incorporate the whole of the previous Act, namely, the Railway and Canal Traffic Act. 1854, but only the first six sections, viz., those sections which applied to the equality of charges, etc.. and this appeared from the first part of Section 16. Repelling this argument, Hellish L.J. said:

Then the next question is, whether 31 and 32 Vict., Clause 119, Section 16, in eludes that provision of the Railway and Canal Traffic Act so as to apply it not only to the carriage by railway, but to carriage by steamer. It seems to me that this is a still plainer question, except for the doubt thrown upon it by the Irish case. But the words are so clear that there can be no doubt about it: "The "provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby." Those words in their plain and natural meaning incorporate Section 7, as well as every other section of the Act. Then why should it be excepted ? The only reason is that this clause is not contained in a separate section by itself, but is contained at the end of Section 16 ; and therefore it is said that it is to be confined to the subject-matter to which the previous parts of Section 16 relate. I am not aware that there is any such rule of construction of an Act of Parliament.

Craies, in his treatise on Statute Law, bases on this authority his view that whether an enactment be printed as part of one section or made in another section, can make no difference in the construction of the Statute.

I can see no justification for taking a different view here and I am of opinion that the provisions now appearing as Section 11(3) have the same effect as they would have if they had appeared by themselves in a separately numbered section. If the Legislature had intended to limit the operation of these provisions to decrees granted on any of the grounds (a) to (e) mentioned in the proviso, the Legislature would have said so clearly. The Legislature has covered a wider field by using the words, "lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1)". Why should we limit the field by reading into the section something which is not there? In my judgment, we are not entitled to do so.

My conclusion, therefore, is that where the tenant''s interest is determined u/s 12(3) of the Act, it is "lawfully determined" within the meaning of Section 11(3) of the Act.

It must be held, therefore, that the interest of the tenant Santi Ranjan, Defendant No. 1, was lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1) of Section 11 of the Act and consequently Defendants No. 2 and 3, to whom the premises had been lawfully sublet by Defendant No. 1, shall be deemed to be tenants holding directly under the Plaintiff on the terms and conditions on which they would have held under Defendant No. 1 if his interest had not been so determined.

The Plaintiff, therefore, is not entitled to any decree for ejectment in this case nor to any decree for damages as against Defendants Nos. 2 and 3. As on the determination of Defendant No. 1''s tenancy by non-payment of rent for March, April and May, 1949, Defendants Nos. 2 and 3 became direct tenants under the Plaintiff, the decree passed against Defendant No. 1 for damages for any subsequent period cannot also be sustained.

I would, therefore, allow the appeal, set aside the orders passed by the Courts below in their entirety in so far as they are against the present Appellants and set them aside also in so far as they are against Defendant No. 1 except that the decree for arrears of rent for March, April and May 1949, against Defendant No. 1 will remain.

The Appellants will get their costs throughout.

Guha, J.

I agree.