Satyabati Gupta vs Promotho Nath Roy

Renupada Mukherjee, J.—The only question of law involved in this appeal is whether a sub-tenant of some house premises against whom landlord the owner of the premises has got a decree for eviction in a suit instituted under the "West Bengal Premises Rent Control Act of 1948, but decreed after the passing of the West Bengal Premises Rent Control Act of 1950, is elevated to the position of a direct tenant under the owner landlord by operation of either Sub-section (2) of Section 13 of the Rent Control Act of 1950 or Sub-section (3) of Section 13 of the Rent Control Act of 1950 or Sub-section (3) of Section 11 of the Rent Control Act of 1948.

The facts material for the purpose of this appeal are not in dispute and they may be briefly stated thus:

Promotha Nath Roy, Respondent No. 1 of this appeal, is the owner and landlord of premises No. 6/1 Belvedere Road, Alipur, Calcutta, and one Bhaskar Mukherjee was his tenant in respect of the first floor of the above premises. Bhaskar Mukherjee sublet the entire first floor in 1946 to one J.P. Agarwalla who died during the pendency of the appeal in this Court and has been substituted by the Appellants who are his heirs and legal representatives. The sub-letting was unauthorised in the sense that it contravened the provisions of Clause (b)(i) of the Proviso to Sub-section (1) of Section 11 of the Rent Control Act of 1948. Relying on those provisions the landlord instituted a suit for eviction against Bhaskar Mukherjee when the Rent Control Act of 1948 was in operation. A decree for eviction was passed against Bhaskar Mukherjee in July, 1950, i.e., after the Rent Control Act of 1950 had come into operation on the 30th March. 1950.

Upon the above admitted facts the present suit was instituted by the sub-tenant J.P. Agarwalla on 19th September, 1950 for a declaration that by operation of law he had been elevated to the position of a direct tenant after the termination of the tenancy of Bhaskar Mukherjee.

The defence of the Defendant was that the sub-tenancy had come to an. end with the decree for eviction passed against Bhaskar Mukherjee.

The Trial Court decreed the suit in favour of the original Plaintiff holding that he had become a direct tenant under the owner and superior landlord Promotha Nath Roy. The Trial Court, however, did not make any order as to costs in view of the Special Circumstances of the case.

An appeal was preferred by the owner landlord, and the decree of the Trial Court was reversed in appeal. So the original Plaintiff preferred this second appeal. As he died during the pendency of the appeal in this Court, the appeal is being prosecuted by his heirs and legal representatives.

Mr. Meyer, Learned Counsel for the Appellant, submitted, in the first place, that both the courts below committed an error in law in holding that the rights of the parties to the present suit would be governed by the Rent Control Act of 1948 and not by the Rent Control Act of 1950. He contended that the right of the sub-tenant accrued upon the passing of the decree in the former ejectment suit against Bhaskar Mukherjee and not before, and so the present suit would be governed by Section 13(2) of the Rent Control Act of 1950 and not by Sub-section (3) of Section 11 of the Rent Control Act of 1948 which corresponded somewhat with the first mentioned section.

Section 13(2) of the Rent Control Act of 1950 runs in the following terms without the proviso with which we are not concerned:

Where any premises or any part thereof have been or has been sublet by ''a tenant of the first degree'' or by ''a tenant inferior to a tenant of the first degree'', as defined in explanation to Sub-section (1) and the sub-lease is binding on the landlord of such last mentioned tenant if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reasons 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 or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub-lessee would have held under the tenant if the tenancy of the latter had not been so determined.

The above Sub-section (2) of Section 13 of the Rent Control Act of 1950 shows that the sub-lessee of some house premises shall be deemed to be a tenant holding directly under the landlord of the intermediate tenant whose tenancy has been determined otherwise than by virtue of a decree obtained by the owner landlord by reason of any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 12 of the Rent Control Act of 1950. Clearly, therefore, no question of the sub-tenant being elevated to the position of a direct tenant arises until the decree is passed. The time of the institution of the ejectment suit is perfectly immaterial. When the decree for eviction was passed in the present case, the Rent Control Act of 1948 had become extinct, and the new right in favour of a sub-tenant was created by the Act of 1950. Apparently the cause of action for the present suit arose after the passing of the Rent Control Act of 1950. The present suit will, therefore, be governed and the rights of the parties will be determined by the provisions of the Rent Control Act of 1950.

Mr. Das Gupta appearing on behalf of the owner landlord submitted that Section 13(2) of the Rent Control Act of 1950 lays down that the sub-tenant would not acquire the status of a direct tenant if the decree for eviction is passed on account of reasonable requirement of the disputed premises by the landlord for the purpose of building and rebuilding or for his own occupation or occupation of any person for whose benefit the premises are held, as provided in Clause (h) of the proviso to Sub-section (1) of Section 12 of the Rent Control Act of 1950. Mr. Das Gupta argued that the reference to a section of the Rent Control Act of 1950 indicates that the decree for ejectment must also be passed under that Act and not the preceding Act."

We are not impressed by the validity of this argument, because the sub-tenant''s right would not accrue only where a sub-tenant is confronted by a decree of a particular description obtained under a particular provision of the Rent Control Act of 1950. In the case of all other decrees, whether they are passed under the Act of 1950 or any other preceding Act, the sub-tenant''s right created by the Act of 1950 would prevail against the decree. Section 13(2) of the Rent Control Act of 1950 does not mention that such other decrees against which this new right of the sub-tenant would prevail must also be decrees passed under the provisions of the Rent Control Act of 1950. We, therefore, reject the contention of Mr. Das Gupta that the decree for ejectment against the immediate tenant not having been passed in a suit governed by the Rent Control Act of 1950, the provisions of Section 13(2) of the same Act are not applicable to the present suit. On the contrary, the decree having been passed after the Rent Control Act of 1950 had come into operation, and the decree not having been admittedly obtained on any ground specified in Clause (h) of the proviso to Sub-section (1) of Section 12 of the Rent Control Act of 1950, the original Plaintiff became, by operation of law, the direct tenant of the contesting Respondent after the determination of the supervening tenancy of Bhaskar Mukherjee. The court below, therefore, committed an error in law in holding that the present suit would be governed by the provisions of the Rent Control Act of 1948. The suit should, therefore, be decreed, although it should be decreed on a ground different from the ground given in the judgment of the Trial Court.

Even assuming that the rights of the parties to the present suit would be governed by the provisions of the Rent Control Act of 1948, we are of opinion that the suit of the original Plaintiff should be decreed as held by the Trial Court, and not dismissed as held by the Lower Appellate Court. This question is clearly concluded by the authority of some judicial decisions of this Court. The relevant provisions of the Rent Control Act of 1948 which would apply to this suit would be Section 11(3) of the Rent Control Act of 1948 minus the proviso read along with the main portion of Sub-section (1) of Section 11 of the same Act coupled with Sub-clauses (b)(i) and (ii) of the Proviso.

Those portions of the Rent Control Act of 1948 are quoted below:

No order for ejectment ordinarily to be made if rent paid at allowable rate. (1) 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 to the full extent the rent allowable by this Act and performs the conditions of the tenancy:

Provided that nothing in this Sub-section shall apply-

* * * * *

(b) where the tenant has sublet, or otherwise has 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;

* * * * * *

(3) 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.

The above provisions of the Rent Control Act of 1948 have been, judicially interpreted in several decisions of this Court. It has been held by Bose J. in a case reported in Bibhuti Bhusan Biswas Vs. Puspalata Sil and Others, that-

if the landlord obtains any decree for ejectment against the tenant on any other ground mentioned in the different clauses of the Proviso to Section 11(1) including Sub-clauses (b). (i) and (ii) the right of the sub-tenant as given by Section 11(3) is not affected thereby in any way.

A similar view has been taken by P.B. Mukharji, J., in a case reported in Monoranjan Bhattacharjee v. Satya Charon Law (1950) 85 C.L.J. S 1 where it has been held that Section 11(1)(b)(i) or (ii) of the Rent Act (1948) does not make subletting illegal, but is only a penal provision preventing the person who commits breach of such provisions from claiming the protection of the benefits conferred u/s 11 of the Act and disables such a tenant who has so sublet in breach of Section 11(1)(b)(ii) from resisting a decree for possession by his landlord.

It seems that in an earlier decision the same learned Judge has taken a somewhat different view of these provisions of the Rent Control Act of 1948 by holding that a subletting in breach of a covenant to sublet is wrongful subletting and such a sub lessee does not come within the protection of the words "lawfully sub-let" in Section 11(3) of the Rent Control Act of 1948. A subtenant whose subletting is contrary to the terms of the tenancy is not entitled to the protection given by the Statute, [see Gangamoyee v. Manindra Chandra (1949) 53 C.W.N. 718]. But the later decision of this learned Judge reported in Monoranjan Bhattacharya v. Satya Charan. Law (supra) which is in accord with the decision of Bose, J. reported in Bibhuti Bhusan Biswas Vs. Puspalata Sil and Others, seems to be more acceptable to us.

Mr. Das Gupta contended on behalf of the contesting Respondent that where a sublease is an unauthorised one, as mentioned in sub-clause b(i) and (ii) of the proviso to Sub-section (1) of Section 11 of the Rent Control Act of 1948, the sub-lessee should be held to be bound by the decree for eviction obtained against his landlord, and he should not be allowed to avail himself of the benefit of Sub-section (3) of Section 11 of the same Act. If the matter had been res integra such a contention might well have deserved our serious consideration, but in view of the authorities mentioned already, we do not think that we would be justified in giving effect to Mr. Das Gupta''s contention and disturbing the existing trend of judicial decisions. So we hold that the suit of the original Plaintiff should be decreed even if the suit were governed by the provisions of the Rent Control Act of 1948,

For reasons set forth above, we are of opinion that the appeal should be allowed. We, therefore, allow this appeal and set aside the judgment and decree passed by the Lower Appellate Court and restore and confirm those passed by the Trial Court. In view of the circumstances of this case, we direct that the parties will bear their own costs in all the courts.

Banerjee, J.

I agree.