1. The sole question for determination in this appeal is whether respondentNo. 2 - Atul Chandra Patitundi is protected from being evicted by the landlordfrom the premises No. 90 A, Harish Mukerjee Road situated in Bhawanipur,District 24-Parganas in view of the provisions enacted in s. 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Bengal ActXVII of 1950), hereinafter called the 1950 Act.
2. Some time before 1948, respondent No. 2 was inducted as a monthly tenantunder Rai Sahib Chandan Mal Inder Kumar, the predecessor-in-interest of theappellant. One of the conditions of the lease was that the tenant will notsub-let the premises or any portion thereof. As respondent No. 2 defaulted inthe payment of rent the appellant made an application under s. 14 of theCalcutta Rent Ordinance, 1946 for permission to sue him for eviction. Theapplication was granted by the Second Additional Rent Controller on September10, 1948. On December 1, 1948, the West Bengal Premises Rent Control (TemporaryProvisions) Act, 1948 (West Bengal Act XXXVIII of 1948), hereinafter called the1948 Act, came into force. On September 15, 1949 the appellant filed a TitleSuit No. 171 of 1949 in the Court of the 1st Subordinate Judge, Alipore,24-Parganas against respondent No. 2 for his eviction on the ground that thetenancy had been determined on account of default in payment of rent. While thesuit was pending, the 1950 Act came into force on March 31, 1950. The suit waseventually decreed in favour of the appellant on February 25, 1951. Theappellant took out execution proceedings being Title Execution Case No. 39 of1951 of the Court of the First Sub-Judge, Alipore. The suit was resisted byrespondent No. 1 who alleged that he had taken sub-tenancy from respondent No.2. Respondent No. 1 also filed Title Suit No. 578 of 1951 in the Court of 4thMunsif at Alipore impleading the appellant and respondent No. 1 and praying fora declaration that on the termination of the tenancy of respondent No. 2,respondent No. 1 became a direct tenant of the appellant under s. 13(2) of the1950 Act and that he was no liable to be evicted in the execution case. Thesuit was decreed in the Court of the Subordinate Judge and the decree wasaffirmed by the District Judge of 24-Parganas in Title Appeal No. 157 of 1953.A Second Appeal was also dismissed by the Calcutta High Court on June 2, 1959.
3. On behalf of the appellant the argument put forward was that thesub-lease granted by respondent No. 1 in favour of respondent No. 2 wascontrary to the agreement of lease and not binding upon the appellant. It was,therefore, submitted that the sub-lessee did not acquire the status of a tenantunder s. 13(2) of the 1950 Act and the sub-lessee could not be deemed to beholding directly under the appellant within the meaning of that sub-section.The question at issue depends upon the proper interpretation of s. 13(2) of the1950 Act which states :
'13. (2) Where any premisesor any part thereof have been or has been sub-let by 'a tenant of the firstdegree' or by 'a tenant inferior to a tenant of the first degree', as definedin explanation to sub-section (1), and the sublease is binding on the landlordof such last mentioned tenant, if the tenancy of such tenant in either case islawfully determined otherwise than by virtue of a decree in a suit obtained bythe landlord by reason of any of the grounds specified in Clause (h) of theproviso to sub-section (1) of section 12, the sub-lessee shall be deemed to bea tenant in respect of such premises or part, as the case may be, holdingdirectly under the landlord of the tenant whose tenancy has been determined, onterms and conditions on which the sub-lessee would have held under the tenantif the tenancy of the latter had not been so determined :
Provided that it shall becompetent for the landlord, or any person deemed under this section to be atenant holding directly under the landlord, to make an application to the Controllerfor fixing rent of the premises or part thereof in respect of which such personis so deemed to be a tenant and until the rent is fixed by the Controller onsuch application such person shall be liable to pay to the landlord the samerent as was payable by him in respect of the premises or part thereof, as thecase may be, to the tenant before the tenancy of the tenant therein had beendetermined. The Controller in fixing the rent shall not determine such rent atthe rate which is beyond the limit fixed by paragraph (4) of Schedule A. Therent so fixed shall be deemed to be the standard rent fixed under section9'.
4. Section 13(1) is also relevant in this connection and it states :
'13. (1) Notwithstandinganything contained in this Act, or in any other law for the time being inforce, if a tenant inferior to the tenant of the 1st degree sub-lets in wholeor in part the premises let to him except with the consent of the landlord andof the tenant of a superior degree above him, such sub-lease shall not bebinding on such non-consenting landlord, or on such non-consenting tenant.
Explanation - In thissub-section -
(a) 'a tenant of the firstdegree' means a tenant who does not hold under any other tenant;
(b) 'a tenant inferior to thetenant of the first degree' means a tenant holding immediately or mediatelyunder a tenant of the first degree;
(c) 'landlord' means thelandlord of a tenant of the first degree'.
5. It is manifest that s. 13(1) makes a distinction between the two classesof sub-tenancies, namely, (1) sub-tenancy created by a tenant of the firstdegree, and (2) sub-tenancy created by 'a tenant inferior to the tenant ofthe first degree' by which is meant a tenant holding immediately ormediatley under a tenant of the first degree. So far as the second class ofsub-tenancy is concerned, the sub-section enacts that the sub-letting will notbe binding upon the landlord or on the tenant of the superior degree unlesseach of them has consented to the transaction of sub-lease. There is no expressprovision in s. 13(1) that a sub-lease of the 1st class requires previousconsent of the landlord or that in the absence of such consent the sub-leaseshall not be binding upon the non-consenting landlord. Section 13(2) refers toboth the classes of sub-leases and states that if the sub-lease has been madeby a tenant of the first degree, the sub-lessee shall be deemed to be a tenantin respect of the premises demised to him if the tenancy of such tenant islawfully determined under the provisions of the Act otherwise than by virtue ofa decree in a suit obtained by the landlord by reason of any of the groundsspecified in Clause (h) of the proviso to sub-section (1) of section 12. In thecase of second class of sub-leases, i.e., sub-leases created by a tenantinferior to the tenant of the 1st degree also the sub-lessee will acquire thestatus of a tenant as mentioned in the statute but in this class of sub-leasesthe rights of the tenant are conferred on the sub-lessee only if the sub-leaseis binding upon the landlord. In enacting s. 13(1) and (2) of the 1950 Act thelegislature has deliberately made a distinction between the two classes ofsub-tenancies and provided that in the case of sub-lease of the first class,namely, sub-leases created by a tenant of the first degree, the sub-lessee willacquire the status of the tenant in respect of the premises demised, though thesub-lease is not binding upon the landlord according to the agreement of lease.The legislature has further provided that in the case of sub-lease of thesecond class the sub-lessee will acquire the status of a tenant of the premisesonly if the sub-lease is binding upon the 'landlord ' as defined ins. 13(1). It follows that in the case of sub-letting by a tenant of the firstdegree no consent of the landlord to sub-letting is required as a conditionprecedent for acquisition by the sub-lessee of the tenant's right but in thecase of sub-letting by a tenant inferior to the tenant of the first degree theconsent of the landlord and also of the tenant of the superior degree above himto the sub-letting is necessary if the sub-lessee is to acquire the rights ofthe tenant contemplated by s. 13(2). It was argued on behalf of the appellantthat the clause 'and the sub-lease is binding on the landlord of such lastmentioned tenant' in s. 13(2) governs both classes of tenancies, namely,sub-tenancies created by 'tenant of the first degree' and also by'a tenant inferior to the tenant of the first degree' as defined ins. 13(1). We do not consider that there is any justification for this argument.Having regard to the grammatical structure and context of the clause it isobvious that it imposes a qualification only upon sub-tenancies of the secondclass. It was also submitted on behalf of the appellant that if a sub-lease isgranted by the tenant of the first degree against the terms of the contract oflease the landlord is entitled under s. 12(1)(c) of the 1950 Act to bring asuit for eviction of the tenant and that in such a suit the tenant and thesub-lessees are both liable to be evicted from the premises in question. It wassubmitted, therefore, that the rights mentioned in s. 13(2) are conferred uponthe sub-lessee only in a case where sub-letting is not in violation of theagreement for lease. In our opinion, there is no substance in this argument.Section 12(1)(c) states :
'12. (1) Notwithstandinganything to the contrary in any other Act or law, no order or decree for therecovery of possession of any premises shall be made by any court in favour ofthe landlord against a tenant, including a tenant whose lease has expired :
Provided that nothing in thesub-section shall apply to any suit for decree for such recovery of possession,-
(c) against a tenant who hassub-let the whole or a major portion of the premises for more than sevenconsecutive months :
Provided that if a tenant who hassub-let major portion of the premises agree to possess as a tenant the portionof the premises not sub-let on payment of rent fixed by the Court, the Courtshall pass a decree for ejectment from only a portion of the premises sub-letand fix proportionately fair rent for the portion kept in possession of suchtenant, which portion shall thenceforth constitute premises under Clause (8) ofsection 2 and the rent so fixed shall be deemed standard rent fixed undersection 9, and the rights and obligations of the sub-tenants of the portionfrom which the tenant is ejected shall be the same as of sub-tenants under theprovision of section 13;'.
6. It is manifest that s. 12(1)(c) saves the right of sub-tenants even in acase in which the landlord has brought a suit for eviction against the tenantunder s. 12(1)(c) and the rights and obligations of sub-tenants would begoverned by the provisions of s. 13. Counsel on behalf of the appellant alsoreferred to the provisions of s. 11(3) of the 1948 Act which states :
'11. (3) Any person to whomany premises or any part thereof have been or has been lawfully sublet by atenant shall, where the interest of the tenant in such premises or part islawfully determined otherwise than by virtue of a decree or order obtained bythe landlord on any of the grounds specified in Clause (f) of the proviso tosub-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 andconditions on which such person would have held under the tenant if theinterest of the tenant had not been so determined :
* * * *'
7. It was pointed out that rights are conferred by the statute only uponsub-lessees to whom the premises have been 'lawfully' sublet by atenant. It was contended that though the 1948 Act was repealed and substitutedby the 1950 Act, the provisions of s. 13(2) of the latter Act have to beconstrued in the context of the language of s. 11(3) of the 1948 Act. We areunable to accept this argument as correct. It is manifest that in enacting s.13 of 1950 Act the legislature has deliberately enlarged the class ofsub-tenants to be protected from eviction by the landlords and the language ofthe section dealing with the sub-lessees has been deliberately changed andproper effect and interpretation must be given to the language of the newsection.
8. For the reasons expressed, we hold that the suit of respondent No. 1 hasbeen rightly decreed and this appeal must be dismissed with costs.
9. Appeal dismissed.