1. The short point in this appeal is whether or not the provisions of Section 13 of the West Bengal Premises Tenancy Act, 1956 applied to the tenancy held by the defendant appellant under the plaintiff respondent in respect of two rooms in the north-eastern portion of the first floor of Premises No. 24B, Theatre Road, Calcutta.
2. On Aug. 4, 1962, the plaintiff respondent had obtained from the then owner. Anil Kumar Mitra, a lease for 21 years from 1st Sept 1962 in respect of the northern portion of the first floor of the said 24B, Theatre Road. On 1st Nov. 1976 the plaintiff had inducted the defendant as a monthly tenant under him in respect of the disputed two room flat in north eastern portion of the said first floor covered by the aforesaid demise in plaintiffs favour dated the 4th Aug. 1962. According to the plaintiff, initially the said lease in favour of the defendant was for a term of 11 months which was extended from time to time and the last of such extensions had expired on June 30, 1978. The defendant having refused to vacate in spite of a notice dated 20th Mar. 1978 served upon him, the plaintiff had instituted the instant suit for recovery of khas possession by evicting the defendant and for recovery of damages.
3. The defendant contested the said suit by claiming inter alia that he was a monthly tenant and the provisions of the West Bengal Premises Tenancy Act 1956 applied and, therefore, except on any one of the grounds specified in Section 13(1) of the West Bengal Premises Tenancy Act, 1956 the plaintiff was not entitled to recover from the defendant possession of the disputed flat.
4. The learned Judge of the Seventh Bench, City Civil Court, Calcutta by the judgment under appeal has upheld the plaintiff's claim that the provisions of the West Bengal Premises Tenancy Act did not apply to the tenancy held by the defendant inasmuch as the premises demised in plaintiff's favour by the superior lessor enjoyed immunity under Section 3 of the West Bengal Premises Tenancy Act. The learned Judge of the court below has accordingly decreed the suit in plaintiff's favour.
5. Having heard the learned Advocates for the parties and considered the materials on record, we reject the contentions for the first time raised in appeal on behalf of respondent that the defendant had never been a monthly tenant but he was a bare licensee. The plaintiff itself in the plaint had averred that it had inducted the defendant as a tenant. The terms of the tenancy held by the defendant were set out in para 6 of the plaint which, according to the plaintiff, inter alia, provided for determination by efflux of time limited by the letter of tenancy and as extended from time to time. At the trial, both parties proceeded on the basis that the defendant had been a tenant under the plaintiff but they were at variance on the question whether the provisions of the West Bengal Premises Tenancy Act applied to the said tenancy. No issue was raised by the plaintiff as to whether or not the defendant was a licensee. The learned Judge of the court below has delivered the judgment on the basis that the defendant had been a monthly tenant but has denied him protection under the West Bengal Premises Tenancy Act on the ground that the lease of the first floor of the aforesaid premises granted by Mitra in plaintiff's favour was not subject to the provisions of the West Bengal Premises Tenancy Act, 1956 and therefore, the tenancy in defendant's favour of the two rooms out of the said demised property was also immune from the provisions of the West Bengal Premises Tenancy Act, 1956.
6. Undisputedly, the registered lease dated 4th Aug. 1962 granted by Anil Kumar Mitra in favour of the plaintiff being for a term of 21 years and the provisions of the West Bengal Premises Tenancy Act did not apply to it (vide Section 3 of the said Act). But on the said ground the plaintiff who had granted a monthly lease in respect of two rooms in the first floor of the premises in question in defendant's favour cannot plead that the said monthly tenancy created in defendant's favour was not subject to the provisions of the West Bengal Premises Tenancy Act, 1956. The decision of Binayak Nath Banerjee and Neyogi, JJ. Laxmi Debi Loyalka v. Frank Rossand Co. Ltd. reported in (1961) 65 Cal WN 167, upon which the court below had placed reliance is distinguishable. In the said reported case, under a registered deed of lease between M/s. Haralal Harendralal Roy Estate Limited and Ghanshyamdas Loyalka the latter had become a lessee under the former in respect of the premises in question for a term of 15 years. The lessee Ghanshyamdas Loyalka had granted a sub-lease in respect of lease-hold premises in favour of M/s. Frank Ross & Company Limited for a term of 14 years 11 months and 16 days from 12th Oct. 1950. After the West Bengal Premises Tenancy Act, 1956 had come into force M/s. Frank Ross and Company Limited filed an application under Section 16(3) of the West Bengal Premises Tenancy Act, 1956 for being declared as a tenant directly under the superior landlord Haralal Harendralal Roy Estate Limited and for having a fair rent fixed. The Division Bench in the case of Laxmi Devi v. Frank Ross and Company Limited (supra) held that the said application under Section 16(3) of the Act was not maintainable because it was not possible to give relief under the said Section to the subtenant without affecting the superior landlord whose lease in favour of the tenant of the first degree was immune from the provisions of the West Bengal Premises Tenancy Act. The Division Bench observed that Section 3 of the West Bengal Premises Tenancy Act gave complete protection to such a lease from the effects of the West Bengal Premises Tenancy Act. If the sub-tenant was to be declared direct tenant under the superior landlord that would mean cessation of the intermediate tenancy and an end of the lease between the superior landlord Haralal Harendralal Roy Estate Limited and the tenant Ghanashyamdas Loyalka (now Laxmidevi Loyalka). Thus the sub-tenant lost his statutory remedy under Section 16(3) of the Act because of the immunity of the tenant from the effects, of the Section on account of protection under Section 3 of the Act.
7. But in the instant case any decision inter se the plaintiff and his tenant, the defendant, would not affect the terms of the lease granted by Anil Kumar Mitra in favour of the plaintiff for a term of 21 years and which enjoyed immunity under Section 3 of the West Bengal Premises Tenancy Act, 1956. Our attention has been drawn to a clause under the said registered lease in plaintiff's favour giving it right to sublet a portion of the demised premises not exceeding one half thereof without any consent from the lessor or any person claiming through him. Prima facie no privity of estate had been created as between the said lessor. Ani! Kumar Mitra, and the present defendant by reason of the plaintiff granting a sub-tenancy in favour of the defendant. Prima facie so far as the said superior lessor is concerned, the position of the defendant vis-a-vis the said superior lessor would be akin to that of a sub-lessee or subtenant under the genera! law and who did not enjoy protection under the rent control legislation. In this connection, reference may be made to the discussion about the legal position of sub-lessees and sub-tenants under the general law and rent control legislation in the case of Debabrata Mukherjee v. Kalyan Kumar Roy reported in (1981) 1 Cal LJ 339.
8. In our view, Mr. Roy Chowdhury is right in his submission that the plaintiff is a landlord within the meaning of West Bengal Premises Tenancy Act. 1956 because the expression 'landlord' under Section 2(d) of the said Act includes any person, who for the time being is entitled to receive or but for a special contract would be entitled to receive the rent of any premises whether or not on his account. The defendant also satisfies the definition of 'tenant' under Section 2(h) of the West Bengal Premises Tenancy Act as 'any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable.....'. The subject matter of tenancy which was part of the first floor flat in the aforesaid Premises No. 24B. Theatre Road was a 'Premises' as defined in Section 2(f) of the said Act. In our view, the West Bengal Premises Tenancy Act contemplates both an owner landlord and a lessee landlord. Indications may be found in Clause (ff) of Section 13(1) of the West Bengal Premises Tenancy Act which confers right upon the owner landlord and lessee landlord to recover possession on the ground of his own use and occupation. In fact, the learned Judge of the court below was not unaware of the said legal position inasmuch as he has himself referred to the legal position that the plaintiff being a lessee could not have recovered possession under Section 13(1)(ff) of the West Bengal Premises Tenancy Act.
9. The reported decision of G.N. Das and Mitter, JJ. in West Bengal Engineering Co. v. Manindra Land and Building Corporation, : AIR1954Cal127 , fully supports our view that the provisions of Section 13 of the West Bengal Premises Tenancy Act, 1956 would apply to the tenancy of the defendant under the plaintiff notwithstanding the fact that the registered lease in plaintiff's favour was immune from the provisions of the said Act. The Division Bench in West Bengal Engineering Co. v. Manindra Land and Building Corporation (supra) held inter alia that the application under Section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act by a subtenant for fixation of rent would be maintainable even though his landlord himself was a lessee of the entire premises for a term of 51 years in view of the Section 5 of the West Bengal Rent Control (Temporary Provisions) Act, 1950 was not applicable to his said lease held under superior landlord. The learned Judges pointed out that Section 5 of the Act of 1950 (corresponding to Section 3 of the West Bengal Premises Tenancy Act, 1956) had only a limited operation and prevented direct encroachment on the incidents of the lease by a resort to the provisions of the Act. If the application for standardisation of rent was granted, this would only interfere with the contractual rent as between the opposite party landlord and its tenant. It would not in any way affect or interfere with the incidents of the lease held by the landlord opposite party. Therefore, the application for fixation of standard rent was maintainable in law. We respectfully agree with the above propositions of law and for the similar reasons find that any adjudication between the plaintiff and the defendant in the present suit will not affect the right of the superior landlord, Anil Kumar Mitra, or the incidents of the said registered lease granted by the said lessor in plaintiff respondent's favour. The unregistered monthly lease of the defendant under the plaintiff did not enjoy immunity under Section 3 of the West Bengal Premises Tenancy Act, 1956 and if the defendant is granted protection under the West Bengal Premises Tenancy Act. the same would not either directly or indirectly interfere with the terms of the registered lease in plaintiff's favour.
10. The learned Judge of the court below has found that no notice under Section 13(6) of the West Bengal Premises Tenancy Act was served upon the defendant tenant and the plaintiff did not seek recovery of possession on any of the grounds specified in Section 13 of the Act. Hence the present suit was not maintainable.
11. We however, make it clear that the decision in this appeal would not prevent the plaintiff respondent if he is so advised to institute any fresh suit for ejectment against the defendant tenant in accordance with the provisions of the West Bengal Premises Tenancy Act.
12. For the foregoing reasons, this appeal ought to succeed. We accordingly allow this appeal, set aside the judgment and decree of the court below and dismiss the plaintiff's suit.
In the circumstances of the case, both parties will bear their respective costs throughout.
Shamsuddin Ahmed, J.
13. I agree.