Suresh Chandra Datta vs Arabinda Kar

Bibhutosh Banerji, J.—This appeal by a sub-tenant is directed against a judgment and decree of ejectment in a suit governed by the West Bengal Premises Tenancy Act, 1956.

Admittedly, Dr. Assem Kumar Basu was the owner landlord and under him the Defendant No. 1 Upen Guha and one Mrs. Malina Roy were the tenants in respect of the two-storied house standing oh the premises No. 52/2 Surya Sen Street, Calcutta.. The house contains in all 11 rooms, four kitchens and a covered verandah used as a kitchen. The tenancy of Mrs. Malina Roy comprised two rooms on the first floor, one room on the roof and a kitchen. The remaining portion of the house was included in the tenancy of Upendra Guha who subsequently inducted the Defendants Nos. 2 to 4 as sub-tenants. The Defendant No. 4, Suresh Chandra Dutta, is the Appellant before me. He gave notice of sub-tenancy to the superior landlord as enjoined by Section 16 of the West Bengal Premises Tenancy Act, 1956. The Respondents Nos. 1 and 2 and their cousins Respondents Nos. 3 and 4 jointly purchased the entire house standing on the premises No. 52/2 Surya Sen Street from Dr. Assem Kumar Basu on September 28,1964. The tenants of the house duly attorney to the new landlords who, on May 10, 1965, raised the suit, which has given rise to the present appeal, for ejectment of tenant Upen Guha and the sub-tenants on three-fold grounds, viz. namely, (a) that the suit premises was reasonably required by the Plaintiffs for the use and occupation of the Plaintiffs and their family members, (b) that the tenant Defendant Upen Guha and the persons living under him have caused damages resulting in the material deterioration of the property and (c) that the tenant Defendant No. 1 had unlawfully sublet or otherwise transferred possession of a. part of the tenancy after the passing of the West Bengal Premises Tenancy Act and subsequent to the purchase of the Plaintiffs Respondents Nos. 1 to 4 by inducting one Ramesh Guha in one of the first floor rooms of the suit premises without the consent in writing of the Plaintiffs Respondents. During the pendency of this suit, the tenant Upendra Guha died, and his heir and legal representatives were brought on record. The learned Judge, City Civil Court, who heard the suit, found that the allegations with regard to causing damages resulting in the material deterioration of the property and the allegation of subletting subsequent to the Plaintiffs'' purchase were totally destitute of truth. He, however, found that the Plaintiffs and their family members reasonably required the suit premises and, in that view of the matter, he gave the Plaintiffs a decree of ejectment against the tenants and the subtenants. Being aggrieved by the aforesaid judgment and the decree the sub-tenant Defendant No. 4 alone has preferred this appeal. The tenant Defendant No. 1 or the sub-tenants Defendants Nos. 2 and 3 did not, however, file any appeal or cross-objection. As such, the scope of the present appeal is limited to the decree of ejectment passed by the lower appellate Court insofar as it relates to the ejectment of the sub-tenant Defendant No. 4 from the two rooms and the kitchen in his possession.

At the hearing Mr. Banerjee, the learned Advocate for the Respondents, has raised a preliminary objection against the maintainability of the present appeal. He has argued that no appeal lies against a decree of ejectment passed u/s 13 of the West Bengal Premises Tenancy Act, 1956. He develops his argument in this way: Under the general law a right of appeal has, no doubt, been conferred upon a litigant under the provisions of Sections 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887. But the West Bengal Premises Tenancy Act, 1956, being a special law on the subject will override the general law contained in Sections 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887. He has further argued that the West Bengal Premises Tenancy Act, 1956, is a self-contained Act insofar as it creates new rights and liabilities and provides for their remedies in case of infringements. Section 20 of the Act provides remedy by way of a suit and enacts that, notwithstanding anything contained in any other law, a suit or a proceeding by a landlord for ejectment of the tenant governed by the West Bengal Premises Tenancy Act shall lie only to Courts, as set out in the Schedule, and no other Court shall be competent to entertain or try such suits. Therefore, it excludes the jurisdiction otherwise conferred on the various civil Courts by the Bengal, Agra and Assam Civil Courts Act, 1887. Section 29 of the Act provides for remedy by way of appeal, revision and review. It says that an appeal shall lie from a final order of the Controller. It nowhere says that an appeal shall lie from a decree of ejectment in respect of a tenancy governed by the West Bengal Premises Tenancy Act, 1956. There-fore, by implication, so argues Mr. Banrjee, the right of appeal under the Bengal, Agra and Assam Civil Courts Act, 1887, is taken away. In my opinion, the contentions of Mr. Banerjee are not sound. It is true that a right of appeal is not to be assumed and that it does not exist unless clearly given by a statute. I am, however, unable to subscribe to the view of Mr. Banerjee that Sections 20 and 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, give a right of appeal to a litigant, or that, since those two sections have been excluded by the opening words ''notwithstanding anything contained in any other law'' mentioned in Section 20 of the West Bengal Premises Tenancy Act, 1956, therefore the present appeal is incompetent. I think, a distinction has to be drawn between a right of appeal given to a litigant and conferment of jurisdiction by a statute upon a Court to hear appeal. The Bengal, Agra and Assam Civil Courts Act, 1887, besides creating the various classes of civil Courts, confer jurisdiction upon certain Courts to hear appeals. The Act, in my opinion, does not give a right of appeal to a litigant. Sections 20 and 21 occur in chap. Ill which deal with jurisdiction. There are various special law which no doubt confer a right of appeal upon a litigant in respect of rights created under these statutes. But the general law on the- subject is contained in the Code of Civil Procedure. It provides that an appeal should He from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals.

I may now refer to the Calcutta City Civil Court Act, 1953. Section 8 of the Act expressly says that an appeal shall lie to the High Court from every decree and certain order specified therein besides appealable order passed by the City Civil Court. The decree under appeal being a decree of ejectment passed by the City Civil Court, Section 8 of the City Civil Court Act, 1953, furnishes a complete answer to the objection of Mr. Banerjee. Mr. Banerjee at the end concedes that he cannot, in the face of the clear terms of Section 8 of the City Civil Court Act, 1953, any more press his objection so far as the present appeal is concerned. He however contends that, apart from the City Civil Court Act, an appeal does not lie against a decree of ejectment in respect of premises governed by the West Bengal Premises Tenancy Act, 1956. The question thus raised is outside the scope of this appeal. So, without committing myself to any final decision in the matter I would only point out the fallacy involved in the argument of Mr. Banerjee. Mr. Banerjee, to my mind, is wrong in applying to the facts of the case the principle that when a special statute "creates a special right and also provides a remedy therefore, it is that remedy which must be pursued and resort cannot be had to a remedy under the general law. Mr. Banerjee thinks that the West Bengal Premises Tenancy Act, 1956, has brought into existence a new right of suit, and proceeding on that erroneous impression he has, argued that since the Act does not expressly provide for an appeal arising out of a suit, the CPC will not apply and invest a litigant with a right of appeal. Section 13 of the Act, however, makes it abundantly clear that no new right of suit has been created under the West Bengal Premises Tenancy Act, 1956. All that Section 13 enjoins is that the Court shall not pass an order or decree for recovery of possession of a premises governed by the West Bengal Premises Tenancy Act unless any of the grounds mentioned therein exists. So, the right of suit is derived not from the West Bengal Premises Tenancy Act, 1956, but from the Code of Civil Procedure. This is manifest from Sub-clause (6) of Section 29. It says that the provisions of the Code of Civil Procedure, 1908, shall be applied to all suits and proceedings referred to in Section 20 of the Act except the suits or proceedings which lie to the High Court in the exercise of its original jurisdiction. As already indicated Section 20 of the Act merely determines the forum of a suit in respect of recovery of possession of a premises governed by the West Bengal Premises Tenancy Act, 1956. It is true the Act creates new rights to move the Rent Controller, but it does not create any right of suit. That precisely explains why Section 29 of the West Bengal -Premises Tenancy Act, 1956, specifically provides for appeal, revision and review in respect of a final order of the Controller and is silent about an order or decree for recovery of possession passed in a suit in respect of premises governed by the Act.

It is then argued by Mr. Banerjee that at any rate a subtenant has no right of appeal and so this appeal against an order or decree of ejectment does not lie at the instance of a sub-tenant. In support of his contention Mr. Banerjee relies upon Sub-section (3) of Section 13 of the Act. Sub-section (3) of Section 13 of the West Bengal Premises Tenancy Act, 1956, runs thus:.

Save as provided in Sub-section (2) and Sub-section (4), a decree for order for delivery of possession shall be binding on every subtenant.

Mr. Banerjee interprets the expression ''binding'' occurring in the Sub-section (3) as meaning ''final'' and contends that a sub-tenant cannot prefer an appeal against a decree which the law makes final as against every sub-tenant. The argument of Mr. Banerjee, though ingenious, cannot be accepted. Under the general law, sub-lease goes with the head lease. A sub-lessee is not, therefore, under a general law, a necessary party in a suit for ejectment of the head lease, because the decree against the head lease will automatically operate against a sub-lessee as well. Under the general law, therefore, a sub-lessee or a sub-tenant has a very precarious - right and he cannot protect himself against eviction in execution of a decree passed against the tenant; The above principle of law has, however, been adopted in the West Bengal Premises Tenancy Act, 1956, with certain modification in its application in cases of notified sub-tenants. The Act gives protection to notified sub-tenant in three ways. In the first place, a sub-tenant is given a right of being heard in a suit against a tenant. Sub-section (2) of Section 13 provides that those sub-tenants, who have given notice u/s 16 of the Act, shall be made parties to a suit or proceeding for recovery of possession. In the second place, the Act prohibits the Court to pass a decree against a sub-tenant Defendant except under certain specified circumstances. This is contained in the proviso to Sub-section (2). It enjoins that except in cases covered by Clauses (f) and (g) of Sub-section (1) no decree or order for ejectment shall be passed against such sub-tenant unless the sub-tenant Defendant has brought himself within the mischief of any of the Clause (b) to (e) and (h). In the third place, under Sub-section (5) a sub-tenant becomes a tenant directly under the landlord in respect of the premises in his occupation when a decree for ejectment is passed against a tenant but not against a sub-tenant. This protection is, as already pointed out, available only in cases of sub-tenants who have given notice of the sub-tenancy to the landlord in accordance with the requirement of Section 16 of the Act and not to other sub-tenants with the result that, except to the limited extent of the protections indicated above, a decree of ejectment against the tenant becomes binding and operative against every sub-tenant. That is the real import of Sub-section (3). Sub-section (3) is never intended to take away a right of appeal of a sub-tenant against whom a decree or ejectment had been passed in accordance with the provision of Sub-section (2). To hold otherwise will be against all common sense and is also not warranted by the language employed in Sub-section (3). The language used is ''save, as provided in Sub-section (2) etc. etc.'', a decree shall be binding on every sub-tenant. Clearly, therefore, when a decree against a sub-tenant is passed in accordance with Sub-section (2), such a decree does not come within the ambit of Sub-section (3) and consequently the right of appeal, if any under the general law, remains unaffected by Sub-section (3). Furthermore, I have my difficulty in accepting the view that the word ''binding'' used in Sub-section (3) means ''final''. A decree is binding so long it is not set aside according to law. An appeal is one*of the many recognised modes of setting aside a decree. So, where a party has a right of appeal against a decree, the decree of the Court subordinate to the appellate Court cannot be said to be final unless an appeal is dismissed or no appeal is taken against the decree passed by the subordinate Court. The objection of Mr. Banerjee that the present appeal at the instance of the sub-tenant is incompetent and, therefore, cannot be accepted as correct and it is overruled.

In support of this appeal Mr. Bagchi submits that, in view of the bar of suit contained in new Sub-clause (3A) of Section 13(1) of the West Bengal Premises Tenancy Act, which has been given a retrospective effect to pending suits and appeals, the Plaintiffs Respondents must be non-suited. The relevant Sub-clause (3A) runs thus:

Where a landlord has acquired his interest in the premises by transfer, no suit for recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest.

I have not quoted the proviso to the aforesaid Clause (3A) for the simple reason that the proviso has nothing to do with this case. This new Sub-clause (3A) was introduced by Section 4 of the West Bengal Premises Tenancy (Second Amendment) Act of 1969. Section 13 of the said Act is important. It is to this effect:

Retrospective Effect The amendment made to the said Act by Sections 4, 7, 8 and 9 of this Act shall have effect to in respect of suits including appeals which are pending at the date of the commencement of this Act.

It is admitted that the Plaintiffs Respondents filed the suit in the City Civil Court, Calcutta, on May 10, 1965, before the expiration of three years from the date of their acquisition of the landlords'' interest. Clearly then the above suit would come within the mischief of Sub-section (3A) of Section 13 of the Act in case the provisions of Sub-section (3A) of Section 13 be held to be applicable in this appeal. Mr. Banerjee, however, contends that the new Sub-section (3A) of Section 13(1) of the West Bengal Premises Tenancy Act was not intended to have any retrospective effect. He has argued that unlike Sub-section (2) of Section 1 of the West Bengal Premises Tenancy (First Amendment) Act of 1969, which expressly states that it shall be deemed to have come in force on August 26, 1969, thereby giving it a retrospective effect, no such clause has been incorporated in the West Bengal Premises Tenancy (Second Amendment) Act of 1969. This, according to Mr. Banerjee, shows that in spite of using the words ''retrospective effect'' in the head-note of Section 13 of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, the Legislature did not intend that the Second Amendment will have any retrospective effect. In order to support this conclusion, Mr. Banerjee relies upon the well-known principle that an amendment cannot affect a right that has already accrued to a party and contends that Sub-section (3A) cannot be given a retrospective effect when this has not been expressly stated in Section 13 of the Second Amendment Act of 1969. To my mind, the argument of Mr. Banerjee overlooks that Section 13 of the Second Amendment has "made Section 4 of the said Act to have effect in respect of suits and appeals pending on the date of commencement of the Act. The intention of the Legislature is, therefore, clear. That intention is that, although Sub-section (3A) has introduced a bar of suit as a result of amendment of law only in the year 1969, nonetheless it shall have effect in respect of all suits and appeals that were filed much earlier but are pending when the Amendment Act came into force. The appeal that I am hearing now was pending when the aforesaid amendment came into force! It is, therefore, plain that the provision of Sub-section (3A) shall have to lie given effect to in the disposal of this appeal. Mr. Banerjee then contends that the word ''appeals'' mentioned in Section 13 refers to appeals u/s 29 of the West Bengal Premises Tenancy Act, 1956, and as such the present appeal, which is not an appeal u/s 29, falls outside the operation of Section 13 of the West Bengal Premises Tenancy (Second Amendment) Act, 1969. I am unable to accept this view. It is obvious that the suit mentioned in Section 13 of the Amendment Act, 1969, in the context where it occurs, refers to a suit for recovery of possession and the appeal referred there is an appeal arising out of such a suit. I must, accordingly, hold that Sub-section (3A) of Section 13(1) applies in this appeal and creates a bar of suit. The result is that the Plaintiffs Respondents must be thrown out of Court.

On the merits too the suit of the Plaintiffs must fail. When the suit was tiled, the Plaintiffs did not occupy any portion of the suit premises standing at 52/2 Surya Sen Street, Calcutta. They were then living in their common ancestral dwelling house at 11 Chakku Khansama Lane, Calcutta. It is the case of the Plaintiffs that they reasonably require the entire suit premises for their own use and occupation because of the extreme difficulty and hardship which they had been experiencing at No. 11 Chakku Khansama Lane. The further case of the Plaintiffs is that they reasonably require a portion of the suit premises for business purposes, allegations being the landlords of premises No. 38 Surya Sen Street where Plaintiffs have been carrying on their book-binding business, is pressing hard for vacant possession of the tenancy. At the present moment the position has completely changed. Admittedly, barring the two rooms and a kitchen in the occupation of the sub-tenant Appellants, the entire two-storied house standing at 52/2 Surya Sen Street has been now lying vacant. That means that, as a result of the ejectment decree passed against Malina Roy and the Defendants of this suit, the Plaintiffs have got vacant possession of 9 rooms and 4 kitchens, 3 regular kitchens and one covered verandah used as a kitchen to accommodate their family members. It is in evidence that the fours Plaintiffs are separate in mess. The family of the Plaintiff No. 1 consists of his wife, self, 2 sons and a daughter aged 15 years; the family of the Plaintiff No. 2 consists of husband and wife and 5 minor sons, in all 7 ; the family of the Plaintiff No. 3 consists of one son and one daughter aged 8 years besides the husband and wife, and the family of the Plaintiff No. 4 consists of the husband, the wife, 2 minor sons and one daughter aged 4 years. The Plaintiff No. 1, Arabinda Kar, is the P.W. 2 in this case. In cross-examination, he says that the family of the Plaintiffs requires at least 10 rooms, 3 each for the Plaintiffs Nos. 1 and 2, and 2 each for the Plaintiffs Nos. 3 and 4. It, however, appears from the evidence of P.W. 3, who is the Plaintiff No. 3 in this suit, that he has at the present'' been living at Asansol where he has accepted a temporary job in the Nursing Home. No doubt, he says that he has a mind to come back to Calcutta, but that is a mere wish or a desire which cannot be equated with the requirement. So long, therefore, the Plaintiff No. 3 continues his job at Asansol, his family, that is to say, his wife, one minor son and one daughter, can very well share one room instead of 2 rooms as demanded. As for the Plaintiff No. 2 it seems reasonable that the 5. minor sons should occupy one room, and the Plaintiff No. 2 and his wife should share another room. So, they would require only 2 rooms and not 3 rooms. Proceeding on the above basis, the family of the four Plaintiffs would require 8 rooms; but there are already 9 bed-rooms available for the purpose besides kitchens. It cannot, therefore, be said that in addition to the 9 rooms and 4 kitchens, the Plaintiffs at the present moment reasonably require the portions in the occupation of the sub-tenant Appellants. Again, having regard to the admitted position that the Plaintiffs have got their ancestral dwelling house at No. 11 Chakku Khansama Lane, Calcutta, where they have been now living, I have my difficulty in holding that the Plaintiffs are not in possession of any reasonably suitable accommodation available at both the places, that is to say, at No. 52/2 Surya Sen Street and No. 11 Chakku Khansama Lane. It is true that in addition to the reasonable requirement for their residential purposes, the Plaintiffs alleged that they require some accommodation for shifting their existing book-binding business now carried on in a rented room. But, I do not believe this part of the story as true. The fact remains that the landlord of No. 38 Surya Sen Street has not as yet filed any suit. For all these reasons, even if I were to hold that the bar of suit under Sub-section (3A) of Section 13 would not apply in this case, that would not affect the ultimate decision so far as the sub-tenant Appellant is concerned. I must, accordingly, hold that the Plaintiffs Respondents cannot in this suit get a decree of ejectment against the Appellant.

The result then is that the appeal is allowed and the judgment and decree of the Court below are set aside only in respect of the portions in the occupation of the sub-tenant Appellant. In view of the special features of this case, I direct that the parties shall bear their respective costs.

The application of the Appellant for taking additional evidence is disposed of as not pressed.