1. This appeal by Abhoy Singh Surana and others is directed against the judgment and decree passed by the learned Chief Judge, City Civil Court, the 18th day of January, 1979, in Ejectment Suit No. 237 of 1974. The learned Chief Judge having tried the suit dismised the same on contest with costs.
2. Being aggrieved, the plaintiffs have come up before this Court in appeal. The plaintiff's case may be stated in short.
3. The plaintiffs are the owners of the Premises No. 3 Mangoe Lane, Calcutta, and the defendant No. 1 is a monthly tenant under the plaintiff's in respect of the suit premises comprising of one godown on the ground floor. The defendant No, 1 has without the knowledge and/or consent of the plaintiffs, illegally transferred and/or sub-let the suit premises to the defendant No. 2, after the commencement of the West Bengal Premises Tenancy Act, 1956. The defendant made additions and alterations of permanent character by making construction and structural alteration etc. and thereby committed acts contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, causing material deterioration of the suit premises. The plaintiffs protested against such action but without any avail. The plaintiffs prayed that on the ground of sub-letting and causing unauthorised construction or alterationthe defendants Nos. 1 and 2 were liable to be evicted from the suit premises. The plaintiffs further pleaded that they had duly issued notice under Section 13(6) of the W.B.P.T. Act but the defendants did not comply with the same.
4. The suit was contested. The defendant No. 1 W. Evans & Company Limited has contested the suit by filing a written statement denying the relationship of landlord and tenant between the plaintiffs and the defendants. The defendant denied that it made any alteration and addition or construction of permanent or temporary character in the suit premises. It also denied the allegation of sub-letting of premises to the defendant No. 2 Messrs. Kanubhai Engineers (p) Ltd. and submitted that it had not transferred possession thereof to the defendant No. 2. The defendant No. 1 pleaded that the defendant No. 2 had appointed defendant No. l as its agent for distribution and exhibition of the goods and products manufactured by or belonging to or dealt with by the defendant No. 2 on remuneration and as per terms of agency agreement has allowed the defendant No. 2 to use the suit room jointly with defendant No. 1 as its licensee for mutual convenience and for furtherance of defendant's agency itself.
5. The defendant No. 2 has also contested the suit by filing a separate written statement, denying the plaintiff's allegations and pleaded that defendant No. 2 had appointed defendant No. l as its agent on remuneration for distribution and exhibition of the goods and products manufactured by or belonging to or dealt with by the defendant No. 2. It further pleaded that as per terms of the agency agreement, the defendant No. 1 had allowed, the defendant No. 2 to use the suit room jointly with the defendant No. 1. The defendant No. 2 had denied that it was a sub-tenant of defendant No. 1 and that there had been any transfer of suit premises to the defendant No. 2. Upon these pleadings, the learned Chief Judge raised eight issues for trial in the suit. Evidence both oral and documentary was adduced by the parties and after considering the evidence on record and hearing the parties, the learned Chief Judge dismissed the suit. Hence this appeal.
6. The point before us is whether a sub-tenancy was created by defendantNo. 1 or not in favour of defendant No. 2 and whether there has been transfer of possession of the suit premises or not.
7. Mr. Kapoor who appears for the appellants takes us through the oral evidence adduced by the parties. Plaintiffs' witness No. 1 A. S. Surana in his evidence furnishes the background as to how the tenancy was created and in what way the plaintiffs became the landlords in respect of the suit premises of defendant No. 1. According to him. the monthly rent is Rs. 316.25 payable according to English Calendar month. His allegation is that the defendant No. 1 sublet the premises to a firm namely Industrial Engineers 14 or 15 years ago. After that firm had left the suit premises, defendant No. 1 sublet the suit premises to the defendant No. 2. He states that there is a big signboard covering the entire width of the room of the defendant No. 2 which displays the name of defendant No. 2. He also gave evidence regarding the conversion of a portion of the godown into a room by constructing a brick built partition wall which damaged the suit premises. On cross-examination, he stated that prior to this suit, one suit had been filed for eviction of defendant No. l but since the probate had not been obtained on account of the death of the proprietor of the building, the suit was allowed to be dismissed for non-prosecution. After obtaining the probate, the present suit was filed. He denied that the defendant No. 2 was not a sub-tenant. Thereafter, the defendants examined several witnesses. The first witness was K. N. Sahgal, Administrative Officer of the defendant No. 1 Company. He proved exhibit E which is a document of agency referred to by the defendant No. 1 in their written statement. He described himself as the Administrative Officer of defendant No. 1 Company. He deposed that defendant No. 1 had separate business in small tools, machine parts, special steel etc. and they also sold the goods from the show room located at the suit premises.
8. Kanubhai Bhalaria, D. W. 2 is the Managing Director of Kanubhai Engineers Private Limited. He spoke about the agreement with W. Evans and Company Ltd., defendant No. 1 and about the agency already referred to by D. W. 1.
9. P. W. 3 is Kangali Ch. Das. His evidence was that he supplied some goods to the defendant No. 1 Company at 3, Mangoe Lane, Calcutta, and produced some challans. D. W. 4 Gopi Krishna Chougdar gave evidence that he delivered all goods to defendant No. 1 Company at 3, Mangoe Lane, Calcutta and produced some chailans. D. W. 5 N. R. Gho-sal also produced some challans to prove that delivery of goods had been made to defendant No. 1 at 3, Mangoe Lane, Calcutta. D. W. 6 Nirmal Chandra deposed to the same effect and produced delivery chailans. Similar was the evidence of D. W. 7 Haripada Dutt and similar evidence was given by D. W. 8 Anil Chakraborty. D. W. 9 K. R. Acharya is the Regional Manager of Majubhai Engineers Limited. He spoke about the business carried on by his Company. He is an officer who sits in the disputed room and carries on the business of defendant No. 2 Company. He says that addition and alteration were not done by them and the alleged rolling shutter was already there. This is the oral evidence on record and as regards documents. Ext. E, letters challans etc. were filed now we shall consider the evidence in the light of the submissions made by the learned Advocate.
10. Before we proceed to consider theevidence, it would be apt to state here that the appellant does not press his case for eviction on the ground of Section 13 (1) (b). In fact, there is not much evidence upon this ground led by the parses. As Mr. Kapoor does not press this ground, we need not record any finding on it.
11. The only ground pressed is that of sub-tenancy created by defendant No. l in favour of defendant No. 2 that is to say, the ground as given under Section 13 (1) (a) of the West Bengal Premises Tenancy Act. Section 13 (1) (a) states that: 'Where the tenant or any person residing in the premises let out to the tenant without the previous consent in writing of the landlord transfers, assigns or sublets in whole or in part of the premises held by him', the tenant would be liable to be evicted. Mr. Kapoor contends that in this case, subletting is established by Ext. E itself. Ext. E is printed at page 58, part II of the paper book. It is a long document which ostensibly creates an agreement of agency between defendant No. 2 and de-fendant No. 1. Mr. Kapoor draws our attention in particular to paragraph 4 of the said document. In paragraph 4 it is stated that:
'In lieu of the remuneration hereinbefore agreed to be paid by the Principal to the Agents, the Agents will allow the Principal the proper accommodation in their premises at ground floor at No. 3, Mangoe Lane, Calcutta, and the Principal shall provide and maintain a Durwan for the purpose of looking after the stocks to be lying in such places. All other staff and employees that would be required shall be directly appointed by the Principal who will be responsible for payment of their salaries and remuneration and for whose acts and omissions the Agent cannot be held responsible in any way.'
12. Mr. Kapoor argues that this clause in the agreement read in the context and background of the whole agreement would show that in the garb of Agency, sub-tenancy has been created at a monthly rent of Rs. 800/-. Mr Kapoor says that this document contains all the elements of a document of lease and so the remuneration of Rs. 800/- reserved for the defendant No. 1 is nothing but for all practical purposes, rent of the suit premises. He submits that Rs. 800/- was being reserved and in lieu of that, office accommodation was given to the so called Principal who was authorised to provide and maintain for the purpose of looking after the stock and also appoint as many employees as the Principal liked. He said that the electric bill was to be paid by the agent up to Rs. 100/- per month beyond that the liability shifted to the agent. If the bill exceeded Rs. 100/-, the entire excess was to be borne by the Principal on demand by the agent. Mr. Kapoor submits that Rs. 100/- was for electricity and Rs. 700/-was the real rent at which the premises was sublet by the defendant No. 1. It is also submitted by Mr. Kapoor referring to the evidence of D. W. 2 Kanubhai Bhalaria that the defendant No. 2 was maintaining 22 employees in the suit room. The total salaries of those employees amounted to Rs. 30,000/- per month. All the articles and furniture inside that room belonged to the defend-ant No. 2 Company. He submits that the magnitude of business carried On by defendant No. 2 clearly shows that the defendant No. 2 had rented the room forthe purpose of its business from defendant No. 1.
13. On the other hand, Mr. Ghose refers to paragraph 8 of Ext. E which runs as follows:
'The Agents shall use their best endeavour to promote the distribution and sale of the goods manufactured by, belonging to and/or to be dealt with by the principal in and within the Calcutta area and shall assist and advice the principal regarding publicity, distribution and sale of their goods.'
Mr. Ghose submits that Ext. E is in fact an agreement of agency in which defendant No. 1, the Agent, was required to give its service to defendant No. 2 in lieu of remuneration. He also refers to the evidence of D. W. 2 and submits that three or four employees of defendant No. 1 sit in the disputed premises to carry on the independent business of defendant No. l. He submits that Mr. Sahagal of defendant No. 1 company sits with D. W. 2 Kanubhai Bhalaria, Mr. Ghose submits that this clearly shows that there was no exclusive possession given to the defendant No. 2. He submits that it would be wrong on the part of the court to interpret Ext. E as if it were a lease.
14. We have considered the matter. It is true, as Mr. Kapoor alleges that Ext. E contains all the elements of the document of lease. Occupation has been given. Monthly payment ha-s been fixed. Durwan can be employed by defendant No. 2 alone and it can place in the disputed room any number of its employees it likes and also store any amount of goods it likes. According to the evidence defendant No. 2 company started its business with a capital of Rs. 4 lakhs and it uses the back portion as its godown. According to D. W. 2 goods lying in the show room of the suit rooms are worth of Rupees 70,000/- to Rs. 80,000/-. This shows the extent of occupation under defendant No. 2. Although defendant No. 1 claims that three or four of his employees were there, the employees are not named. Only one person appeared to say that he works for defendant No. 1. It is also strange to note that, the so-called agent of defendant No. 2 sits with the Managing Director of defendant No. 2 in the same room. One finds it very difficult to believe that a Managing Director of a company would sit in thesame room on the same table with his agent. This clearly shows that there is no special room or table for defendant No. 1 company's personnel to sit. Defendant No. 1 does not disclose how much goods it strores there. Under the agreement, defendant No. 1 is not responsible for the loss of goods of defendant No. 2 from the suit premises. It is very difficult to believe that defendant No. 2 company would store goods in a place where it has no control and where it cannot fix liability upon defendant No. 1 who allegedly occupies jointly the same place with defendant No. 2 company. It is true that some letters may be received by defendant No. 1 at the suit premises. The evidence of D. W. 2 in this respect is that 'occasional letters to the defendant No. 1 come there'. If defendant No. l company carried business from there, why letter should come only occasionally to this company is not explained. Therefore, taking various facts and circumstances into consideration and reading in between the lines of Ext. E we find that in substance and in fact, the suit room had been rented out by defendant No. 1 to defendant No. 2 ostensibly in the garb of an agency. We have also been referred to various letters. It appears that occasionally defendant No. 1 wrote to the landlords regarding some grievances but it also appears that defendant No. 2 company also wrote some letters directly to the landlord asking for certain amenities. This shows that defendant No. 2 was not considering itself as a mere licensee but was considering itself as a tenant.
15. Mr. Ghose has placed reliance on a case reported in 0043/1975 : AIR1975Delhi117 . He submits on the basis of that case that the tenancy cannot be inferred in the present case simply because defendant No. 2 was occupying the suit room. Mr. Ghose contends that occupation of the suit premises by defendant No. 2 company does not mean transfer of possession or giving up exclusive possession to defendant No. 2 by defendant No. 1. We have gone through the case cited by Mr. Ghose. It appears that in the facts of this case, it was quite different. We do not think it will serve much purpose to elongate the iudgment by bringing in the farts of the case reported in 0043/1975 : AIR1975Delhi117 . Suffice it to say, here the two companies are completely different whereas in the Delhi case, the com-pany which was proprietorship company was succeeded by private company limited under the same family and the tenant of the suit premises was the Managing Director of the private limited company also. Mr. Ghose has also placed reliance upon a case reported in : AIR1975Guj205 . This is a case in which facts discussed in various paragraphs have been omitted and the report is not complete. All the same, we do not find how this case comes to the help of Mr. Ghose the facts being totally different.
16. Interpreting Ext. E as a whole, we have come to the conclusion that in the garb of agency agreement, really a lease has been executed. The lease was only terminable at six months' notice on either side. Had it been a licence, this clause would not have found any place there. Looking into the facts we find that the employees of the defendant No. 2 are all over the suit premises and the goods of defendant No. 2 company are all over the godown of the suit premises. The defendant No. 1 has not produced any document to show that it was assessed at that stage by either the Income-tax or the Sales Tax or any other authorities to show the volume of business done from suit premises. Therefore, taking the entire farts and circumstances into consideration, we have come to the conclusion that the defendant No. 1 has parted the possession of the suit premises to defendant No. 2.
17. Save and except the claims and assertions made by the defendants there is no concrete evidence of any service having been rendered by defendant No. 1 to defendant No. 2 in the capacity of an agent of the latter. Therefore, it cannot be said that the primary object of the agreement was to secure the service of defendant No. 1 as agent by defendant No. 2 and accommodation was a subsidiary object. From the facts and circumstances surrounding and appertaining the transaction it is dear that the primary object of the agreement (Ext, 3) was to secure accommodation for defendant No. 2 from defendant No. 1 at an agreed rental. The agreement was merely a facade or a device calculated and designed to conceal the real intent and object of the transaction. Therefore, we hold that the transaction behind the facade was realty subletting of suit premises. Not the form but the substance is the determinant
18. No doubt, defendant No. 1 had access to the suit premises but access is one thing and possession is another. As an Agent or ostensible agent, the Proprietor of M/s. W. Evans and Company might visit the suit premises but in our opinion, it was not transacting any business from there. We find the evidence of D. Ws. who claimed to have delivered the goods to defendant No. 1 company was not reliable and not sufficiently strong enough to establish that the defendant No. 1 retained possession of the suit premises. In the garb of creating an agency agreement, possession had been transferred to defendant No. 2. Therefore, we find that the plaintiffs have made out a case under Section 13 (1) (a) of the West Bengal Premises Tenancy Act and the plaintiffs are entitled to a decree.
19. Mr. Ghose contended that this type of agreement was being carried on for a long time, the plaintiffs did not file a suit earlier but Mr. Ghose, on being asked whether he is pleading a bar of limitation or waiver, submitted that he was doing neither. In the circumstance, the argument of Mr. Ghose that such agreement existed prior to the impugned agreement does not disentitle the plaintiffs from getting a decree.
20. For the reasons aforesaid, this appeal is allowed. The judgment and decree passed by the court below is set aside. The suit of the plaintiffs is decreed without costs.
21. There will be no order as tocosts in this appeal.
22. On the prayer of the learned Advocate for the respondent, there will be stay of execution of the decree for four weeks.
23. I agree.