Samad Mistri vs Sk. Md. Omar

Chittatosh Mookerjee, J.—The Petitioners have obtained the present Rule against the order dated April 5, 1974, passed by the learned Judge, Fifth Bench, City Civil Court at Calcutta, allowing an application of the decree-holder opposite party No. 1 under Order XXI, Rule 97 of the CPC for giving delivery of possession of the suit premises with Police help.

Golam Hossain, who was the judgment-debtor in the aforesaid execution case, was a monthly tenant in respect of one shop room, one workshop and another room at No. 277 Bepin Behari Ganguly Street. Sk. Md. Omar, opposite party No. 1, filed Ejectment Suit No. 69 of 1959 in the Fourth Bench of the City Civil Court at Calcutta against the said Golam Hossain, the Defendant No. 1 and ten others as Defendants Nos. 2 to 11, who were described as subtenants under Golam Hossain, The case of the Plaintiff was that the Defendant No. 1 was liable to be ejected on the ground of subletting within the meaning of Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956. The trial Court had struck off the names of the Defendants Nos. 2 to 11 from the records of the said ejectment suit. Thereafter, the trial Court decreed the suit in favour of the Plaintiff landlord. The Defendant No. 1 preferred F.A. No. 496 of 1961 in this Court. On August 1, 1967, D.N. Sinha C.J. and Arun, Kumar Mukherjee J. delivered their judgment in the said appeal finding, inter alia, that the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, would apply in the said case. The sub-tenancies having been created by the Defendant No. 1 before coming into force of the West Bengal Premises Tenancy Act, 1956, Section 13(1)(a) of 1956 Act would not apply. Their Lordships held that the Plaintiff in the said case was entitled to a decree against the Defendant No. 1 u/s 12(1)(c) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Such right, obligation and liability under the 1950 Act had been preserved by Section 40 of the 1956 Act. Their Lordships, however, held that the Defendant No. 1 was entitled to remain in that portion which was in his khas possession and which had not been sublet. Their Lordships, accordingly, remanded the case to the trial Court to find out the respective boundaries of the portion which was in khas possession of the Defendant No. 1 and that which was in possession of the sub-tenants. The appeal was kept pending.

Thereafter, the trial Court recorded the finding in terms of the aforesaid remand order and the first appeal again came up before the Division Bench consisting of Arun Kumar Mukherjee and Murari Mohan Dutt JJ. The learned Judges by their judgment dated June 9, 1971, confirmed the original decree of eviction of the Defendant No. 1 in respect of the portion of the premises in possession of his sub-tenants. But they allowed the appeal in part by permitting the Defendant-Appellant to retain possession of room No. 18 for which the Defendant-Appellant was to pay a rent of Rs. 5 per month. Their Lordships clearly recorded in their judgment that they were applying the proviso to Section 12(1)(c) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

The learned Judge of the Fifth Bench, City Civil Court at Calcutta, in the order impugned in the present Rule did not properly consider the effect of the decree passed in the aforesaid first appeal preferred by the Defendant No. 1 Golam Hossain. The executing Court is now bound to proceed on the basis that the landlord decree-holder has obtained a decree for eviction against the Defendant No. 1 in respect of the suit premises except room No. 18 in terms of Section 12(1)(c) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. In fact, the learned Judge of the Court below has himself referred to the nature of the decree passed against the Defendant No. 1. Therefore, the learned Judge of the Court below acted illegally and with material irregularity in the exercise of his jurisdiction by holding that the Act of 1950 cannot be applied in case of the sub-tenants of the Defendant No. 1 judgment-debtor. In the instant case, the Division Bench found that the tenancy of Golam Hossain was determined on the expiry of the last day of September 1958. Nonetheless, the Plaintiff decree-holder was entitled to get a decree u/s 12(1)(c) against him on the ground that he had sublet a major portion of the premises for more than 6 (six) consecutive months. Accordingly, the Division Bench applied the proviso to Clause (c) of Sub-section (1) of Section 12 of 1950 Act by passing a decree for ejectment against the Defendant No. 1 from only the portion of the premises sublet and by permitting him to continue in possession of the remaining portion in his khas possession. Under the same proviso, the rights and obligations of the sub-tenants of Golam Hossain, the judgment-debtor must be the same as of the sub-tenants under provisions of Section 13. Therefore the effect of the decree u/s 12(1)(c) against the Defendant No. 1 was to vest his sub-tenants with the rights and obligations of sub-tenants specified in Section 13(2) of 1950 Act.

In view of the judgment and decree passed in F.A. No. 496 of 1961, the parties as also the Court below are bound by clear findings of the Division Bench in their judgment dated August 1, 1967, that the provisions of Section 40 of the West Bengal Premises Tenancy Act, 1956, were applicable and therefore, Section 12 of the 1950 Act would govern not only the tenant but also the sub-tenants under him. It was not open to the executing Court to say that although the decree for ejectment was made in terms of the proviso to Clause (c) of Sub-section (1) of Section 12, nonetheless, the last part of the said proviso providing that the rights and obligations of the sub-tenants of the portion from which the tenant would be ejected shall be the same as those of the sub-tenants under provisions of Section 13 of the 1950 Act.

In the instant case, the judgment-debtor Golam Hossain was the tenant of the first decree under the decree-holder Sk. Md. Omar., Therefore, the sub-leases granted by Golam did not require any consent of his landlord and such sub-lease or leases in terms of Section 13(2) was or were binding on the landlord. The said tenancy of Golam Hossain, the Defendant, was determined not by reason of the ground specified in Clause (h) of Section 12(1). Accordingly, his sub-tenants must be deemed to be tenants in respect of such premises or part, as the case might be, holding directly under the landlord of the tenant Golam Hossain whose tenancy has been determined on terms and conditions on which the sub-leasees would have held under the said Golam Hossain if the tenancy of the latter had not been so determined. Such creation of direct tenancies would be by operation of law and not by contract of free will of the parties. The date of commencement of the direct tenancies of the sub-lessees would be the date of the determination of the tenancy of the Defendant-tenant by a decree on grounds other then Clause (h). Such right of sub-tenants under the 1950 Act under the proviso to Section 12(1)(c) read with Section 13(2) was a vested one. The West Bengal Premises Tenancy Act, 1956, did not either expressly or by implication deprive the said right of the sub-lessees of a tenant against whom a decree u/s 12(1)(c) would be passed.

The learned Judge of the Court below himself has referred to the Supreme Court decision in Indra Kumar Karnani Vs. Atul Chandra Patitundi and Another, . Therefore, he was not right in holding that the sub-lessees of the tenant of the first decree Golam Hossain would be bound by the decree passed against the said tenant on a ground other then Clause (h) and that sub-lessees, were liable to be evicted in execution of such decree.

Mr. Ghorai, learned Advocate for the opposite party No. 1, drew my attention to the fact that the present Petitioners had claimed in the Court below that they had served notices u/s 16(2) of the West Bengal Premises Tenancy Act and they had claimed that they were sub-tenants under the judgment-debtor Golam Hossain. In my view, the same cannot operate as an estoppel against the statutory provisions contained in Section 12(1)(c) proviso and Section 13(2) of the 1950 Act. The learned Judge of the Court below has found that, in fact, the present Petitioner did not serve valid notices. Secondly, every pre-Act sub-tenant was not bound to serve notice u/s 16 Rand thereafter to apply u/s 16(3) of the 1956 Act. Section 16 does not contain the exclusive remedy for sub-tenants. In case no notice under the said provisions was served, certain legal consequences would follow. But, in the instant case, Sub-sections (2) and (3) of Section 13 of the West Bengal Premises Tenancy Act, 1956, were not attracted to the ejectment decree u/s 12(1)(c) proviso of the 1950 Act passed against Golam Hossain. In this case, no order u/s 16(3) having been made, sub-tenancies in question did not cease and the rights and obligations of the sub-tenants u/s 12(1)(c) and Section 13(2) of the 1950 Act remained unimpaired.

The Division Bench decision in Nityananda Kapuria v. Parbati Nath Dutta and Ors. (1954) 58 C.W.N. 407 and in Khetramohan Manimohan Saha v. Parbati Nath Dutta and Ors. (1954) 59 C.W.N. 289, laid down that rights claimed by subtenants under a tenant against whom a decree under the 1950 Act was made, cannot be enquired into in execution of an ejectment decree against the latter, because the sub-tenants had statutory rights independently of a tenant under the 1950 Act and not they were representatives of the judgment-debtor.

The decree-holder in his application under Order XXI, Rule 97 of the CPC and for Police help alleged that Korban Ali and Mansur Ali, Izzat Ali etc. (the present Petitioners) had resisted the process-server who went to deliver possession. Therefore, the executing Court before allowing the said application of the decree-holder was required by law to decide whether the aforesaid persons had resisted in bona fide claim of rights or they were claiming under the judgment-debtor.

Bachawat J. in Gaya Nath Ghosh v. Amulya Chandra Sarkar and Anr. (1956) 61 C.W.N. 164, after considering the decisions in Nityananda v. Parbati (1954) 58 C.W.N. 407 and Khetramohan v. Parbati (1954) 59 C.W.N. 289, held that Order XXI Rule 97 provides for a complete procedure for the protection of right of a sub-tenant and ordinarily he should adopt that procedure and not the procedure of a separate suit. The facts in Gaya Nath Ghosh v. Amulya Chandra Sarkar and Anr. (Supra) (170, para. 2), are nearly similar to the facts of the present case. Bachawat J. held that "a sub-tenant who claims a statutory right independently of the tenant is not a representative of the judgment-debtor and he is not bound by a decree for ejectment passed against the tenant."

I respectfully agree with the views expressed by Bachawat J. in Gaya Nath Ghosh v. Amulya Chandra Sarkar and Anr. (supra). The decree-holder had complained in the executing Court that the execution of the decree had been resisted and obstructed by the Petitioners. The Petitioners had claimed that they had rights to be in possession of the property on their own account. Therefore, the executing Court is enjoined by law to decide whether such resistance or obstruction was at the instance of the judgment-debtor or by bona fide claimants. I have already held that the executing Court clearly committed a jurisdictional error by holding that although a decree for partial ejectment was passed against the judgment-debtor tenant in terms of Section 12(1)(c) proviso of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the said proviso to Clause (c) read with Sub-section (2) of Section 13 of the 1950 Act would? be inapplicable to the subtenants of the judgment-debtor tenant. Although the learned Judge of the Court below proceeded on the basis that the present Petitioners were all sub-tenants as yet there has been no clear decision regarding individual claims of the Petitioners. In other words, whether or not all who had resisted were inducted as sub-tenants by Golam Hossain during the sub-distance of his contractual tenancy. A statutory tenant, it is well-settled, has no right to sublet. The executing Court will now consider whether the persons who resisted are bona fide claimants within the meaning of Order XXI, Rule 99 of the CPC and pass appropriate orders in accordance with law.

I, accordingly, make this Rule absolute, set aside the order complained of. The executing Court is directed again to consider the application under Order XXI, Rule 97 filed by the decree-holder in accordance with law and in the light of the observations contained in this judgment.

There will be no order as to costs.

Let the records be sent down expeditiously.