1. The material facts giving rise to this rule are these: The present petitioner was a tenant under the opposite party in respect of five rooms on the first floor of No. 13, Halwasiya Eoad, Calcutta. In November 1944, the opposite party applied under Section 41, Presidency Small Cause Courts Act (15 [XV] of 1882) for a summons against the petitioner calling on him to show cause why he should not be compelled to deliver up the property asserting that the present petitioner was a defaulter within the meaning of the Calcutta Rent Control Order, 1943. The application was registered as a suit and a consent decree was passed by which possession was to be delivered by the present petitioner by 30-3-1946.
2. The Calcutta Rent Control Order was amended. The Court thereupon set aside the consent decree and directed the opposite party to obtain the consent of the Rent Controller to prosecute his suit. Thereafter the Rent Control Order ceased to have effect, and the Calcutta Rent Ordinance, 1946, came into force on 1-10-1946. Thereafter, on 3-12-1946, the opposite party applied to the Court to amend the application by including an averment 'that the defendant has sublet a portion of the demised premises without the consent of the plaintiff.'
3. The amendment was allowed. The present petitioner denied that he had sublet the premises as alleged. Evidence was taken on this point; and the Small Cause Court Judge came to the conclusion that the present petitioner had sublet two of the five rooms in June or July 1945.
4. The learned Judge then held that in view of proviso (b) to Section 12, Calcutta Rent Ordinance, 1946, the tenant was not protected against eviction, and he accordingly passed an order under Section 43, Presidency Small Cause Courts Act, directing the present petitioner to give possession of the property to the opposite party on 31-3-1947.
5. The petitioner obtained this rule and argued (1) that inasmuch as he had appeared and shown cause why an order should not be passed, the Small Cause Court had no jurisdiction to enquire further into the matter and should have referred the parties to the civil Court; (2) that inasmuch as the application was filed at a time when the Rent Control Order was in force, it should have been decided according to the law as laid down in that Order; and (3) that inasmuch as the sub-leases were granted at a time when the Rent Control Order was in force, proviso (b) to Section 12, Calcutta Rent Ordinance had no application in the present case.
6. With regard to the first of these contentions, if the matter were res interga, I should have some difficulty in holding that the Small Cause Court had jurisdiction to go further into the matter after the occupant had once appeared and objected to the order on any legal ground. Section 41, Presidency Small Cause Courts Act provides for an application to be made and for a summons on the occupant calling upon him to shew cause why he should not be compelled to deliver up the property.
7. Section 43 provides that an order directing the occupant to deliver up possession may be made if the occupant does not appear at the time appointed and show cause to the contrary. The Act is silent as to what may be done if the occupant does appear and show cause.
8. There is however an explanation appended to the section indicating one case at least in which the occupants shall be deemed to have shown cause.
9. There can be no doubt that for many years past the Small Cause Court has decided objections to such applications and has granted relief under Section 43 in contested applications. In other words the practice of the Court is apparently to hear and decide objections in such cases at all events when questions of title are not involved and this practice has had the approval of this Court.
10. In Rajendra Mullick v. Nanda Lall Gupta ('04) 31 Cal. 1001 it was held that:
The Presidency Small Cause Court has jurisdiction to try questions of title which arise incidentally in a suit and even if such question be the principal though not the sole one, the jurisdiction of the Small Cause Court is not ousted.
That decision was given in a suit on an application under Section 41 of the Act and the decision was given by a Bench of three Judges.
11. It seems to me that it is no longer open to a party to argue that the Small Cause Court has no jurisdiction to decide contested applications under Section 41 of the Act.
12. With regard to the second contention urged on behalf of the petitioner, it is not a question of giving retrospective effect to the Rent Ordinance. The law as laid down in the-Transfer of Property Act was not strictly speaking, amended by the Rent Control Order or by the Rent Ordinance. The Rent Control Order merely prevented the Courts granting] particular reliefs during the continuance of the order, which by its very nature was of temporary effect. It did not purport to confer permanent rights on a party. It is obvious that a, new application on the amended grounds might have been made on 3rd December 1946, and, if made, could not have been defeated on the, ground that permanent rights had accrued, under the Rent Control Order. Such being the case, I see no reason for holding that permission to amend the application as prayed should not have been given, nor for holding that the application ought to have been decided according to the law which prevailed at the time when the application was first made.
13. On the third point, Mr. Lahiri has argued that the sub-leases were granted at a time when the Rent Control Order was in force, and when the grant of such sub-leases did not; entail a liability to ejectment. He therefore argues that his client should not be liable to ejectment simply on the ground that he had granted sub-leases.
14. The tenant always had the right during the continuance of the tenancy, to grant sublease, and the granting of such sub-lease was not a breach of the conditions of the tenancy and-did not itself determine the tenancy. The law applicable is still the law as laid down in Section 111, T.P. Act. The effect of the Rent Control Order was merely to prevent the Court for a time from ejecting occupants who fulfilled certain conditions. The effect of the Rent Ordinance is similar, but the class of occupants so protected is further restricted, and protection is no longer granted to those tenants who have exercised their legal rights of sub-letting.
15. In my opinion the learned Judge of the Small Cause Court was right in disposing of this matter according to the law as laid down in Section 12, Calcutta Rent Ordinance.
16. In this view the rule must be discharged with costs. Hearing fee one gold mohur. Let the records be sent down as early as possible.