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Gour Mohan Roy and ors. Vs. Sailendra Nath Saha Chowdhary - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberSuit No. 1716 of 1948
Judge
Reported inAIR1950Cal152
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Sections 2(11), 11, 11(3) and 13
AppellantGour Mohan Roy and ors.
RespondentSailendra Nath Saha Chowdhary
Appellant AdvocateA.K. Hazra, Adv.
Respondent AdvocateAsoke K. Sen and ;S. Roy, Advs.
Cases ReferredReeves v. Dean
Excerpt:
- .....defendants 2 and 3 bhupen chandra ghose and lalan chandra ghose (herein-after referred to as the ghose defendants) does not bind the plaintiffs and for a declaration that the plaintiffs are the sub-tenants of the premises in suit entitled to reside therein until the lawful termination of their sub-tenancy and for injunction restraining defendant 1 sailendra nath saha chaudhury (hereinafter referred to as the landlord defendant) from executing the small causes court decree or order for possession against the plaintiffs.3. the case of the plaintiffs is that they are and have been the sub-tenants of the ghose defendants. the landlord defendant sailen is the owner of the premises in suit under whom the ghose defendants were the tenants. a notice to quit was given by the ghose defendants to.....
Judgment:

P.B. Mukharji, J.

1. The plaintiffs in this suit claim to be sub-tenants in respect of certain portions of the premises in suit. Defendant 1 is the superior landlord and defendants 2 and 3 are alleged to be the tenants of such superior landlord.

2. This is a suit by the plaintiffs for a declaration that the order for possession of the Small Causes Court, Calcutta, dated 2nd March 1948, passed against defendants 2 and 3 Bhupen Chandra Ghose and Lalan Chandra Ghose (herein-after referred to as the Ghose defendants) does not bind the plaintiffs and for a declaration that the plaintiffs are the sub-tenants of the premises in suit entitled to reside therein until the lawful termination of their sub-tenancy and for injunction restraining defendant 1 Sailendra Nath Saha Chaudhury (hereinafter referred to as the landlord defendant) from executing the Small Causes Court decree or order for possession against the plaintiffs.

3. The case of the plaintiffs is that they are and have been the sub-tenants of the Ghose defendants. The landlord defendant Sailen is the owner of the premises in suit under whom the Ghose defendants were the tenants. A notice to quit was given by the Ghose defendants to the plaintiffs on or about the 24th October 1946. The landlord defendant Sailen instituted proceedings in the Calcutta Small Causes Court being suit No. 1691 of 1947 against the Ghose defendants for possession of the said premises, In the Small Causes Court proceedings the landlord defendant Sailen did not implead the plaintiffs and the plaintiffs were not parties to such proceedings. The landlord defendant Sailen obtained an order for possession against Ghose defendants in those proceedings on 8th December 1947. In execution of the said order defendant Sailen has obtained a further order for eviction on 2nd March 1948. The Ghose defendants have not entered appearance in this suit. The landlord defendant Sailen has filed his written statement and disputes the plaintiff's claim to occupy the said premises.

4. Mr. A.K Hazra learned counsel for the plaintiffs abandoned the plea of conspiracy and and collusion laid in the plaint. The only issue raised was:

Have the plaintiffs been in possession of the premises as sub-tenants for a period not less than seven years and not expiring on the 1st October 1946?

If so, are they liable to be evicted under the West Bengal Premises Rent Control Act, 1948, by the landlord defendant Sailen in pursuance of the decree and order of possession of the Small Causes Court?

Mr. Hazra called plaintiff Gour Mohan Roy as his first witness to prove the fact of (1) sub-tenancy and (2) its duration for not less than seven years and not expiring on 1st October 1946. During the examination in chief and after the said witness had adduced proof, Mr. A.K. Sen learned counsel for the landlord defendant Sailen conceded that the plaintiffs were the sub-tenants for over seven years and not expiring on 1st October 1946 and still continuing as such sub-tenants upon that concession. Mr. Hazra did not proceed further with the examination of the said witness and Mr. Sen did not cross-examine him. I have directed the concession to be recorded in the minutes and it disposes of the first part of the issue.

5. The arguments of learned counsel have naturally therefore centred round the legal effect of such sub-tenancy and whether having regard to such sub-tenancy the plaintiffs are entitled to claim the protection of the West Bengal Premises Rent Control Act, 1948.

6. Mr. Hazra appearing for the plaintiffs has argued that Section 13 of the Act protects his clients. The plaintiffs according to him were persons to whom the said premises had been sublet for a period of not less than seven years and each period did not expire on or after 1st October 1946. In such a case, he argues, that the Ghose defendants as tenants are not entitled to the benefit of Section 11 of the Act and his clients the plaintiffs shall be deemed to be the tenants holding directly under the landlord defendant Sailen on the same terms and conditions on which his clients held under the Ghose defendants. According to Mr. Hazra that is the irresistible conclusion from the concession made by Mr. Sen appearing for the defendant Sailen.

7. Mr. Sen on the other hand contends that Section 13 of the Act does not apply in this case. His argument is that Section 13 applies only to leases and not to monthly tenancies. He draws this conclusion by an interpretation of the words 'period' and 'expires' used in that section and he submits that the word 'period' must be construed as meaning a term in a lease. I cannot accept the construction put forward by Mr. Sen.

8. The nature of a monthly tenancy is not such which can be said to be a tenancy for a specified or any limited period. It is a tenancy for an indefinite time which can last ad libitum for any period, whether of seven years or more or less with no terminus ad quem, the only limitation being that a monthly tenancy is terminable by fifteen days notice given either by the landlord or the tenant. Subject to that limitation, monthly tenancy as such cannot in my judgment be said to be a tenancy not for a period less than seven years so as to be excluded always from the operation of Section 13, Rent Control Act, 1948. Monthly tenancy is a periodical tenancy which does not come to an end by efflux of time at all for the obvious reason that no time is fixed or limited by the tenancy itself. In my judgment it commences with a month and without any further step on the part of the lessor or the lessee continues until either party terminates it by giving the requisite notice to quit under Section 106, T. P. Act. It is not a new tenancy every month but a part and parcel of the original tenancy. If any authority is required for the views which I express on the nature of monthly tenancy I need only refer to the decision, Usharani Debi v. Research Industries Ltd., of Gentle J. in 50 C. W. N. 461, and to Utility Articles ., I. L. R. (1943) Bom. 553. (A. I. R. (30) 1943 Bom. 306) and I rely on the observations of Beaumont C. J. generally and of Kania J. particularly at p. 556 of the Report. I, therefore, am enable to accept the construction put forward by Mr. Sen that Section 13 of the Act does not apply to monthly tenancy at all, The words 'period' and 'expire' are not necessarily connotative of a lease. The expression 'lease' is a well-known word with well defined meaning and it has not been used in that section. In this context of Section 13 of the Act I do not feel justified in putting the limitation on the meaning of this section as argued by Mr. Sen and confining its operation only to leases of not less than seven years and excluding the class of monthly tenancies even though they had lasted for the requisite period from the operation of this section. In my opinion, for the reasons I have given and on the authorities I have referred to, I hold that Section 13 of the Act does apply to the case of a monthly tenancy provided it has lasted for a period of not less than seven years expiring on or after 1st October 1946.

9. Then the question is that Section 13 of the Act came into operation only on 1st December 1948. The decree or order for ejectment was made long before the Act came into operation. Mr. Sen has stated to the Court that his client the landlord defendant Sailen has not yet succeeded in getting possession from the Ghose defendants in pursuance of the order of the Small Causes Court and that the Ghose defendants are still in possession and the plaintiffs also are in possession. It also appears to be so from the last sentence in para. 5 of his client's written statement and also from the facts pleaded in the plaint. It also appears from the evidence of plaintiff Gour Mohan Roy that not only the plaintiffs are still in actual possession (QS. 13 and 31) but also the Ghose defendants are collecting rents from the plaintiffs (Q. 16) and themselves still paying rent to the landlord defendant Sailen every month (Qs. 33 and 35). Mr. Sen has not cross-examined or challenged this evidence. If the decree or order for possession had been executed by recovery of possession before 1st December 1948, when the Rent Control Act, 1948. came into force the plaintiffs could certainly have not been able to resist the eviction under the law prevailing at that time namely the Calcutta Rent Ordinance, 1946.

10. Not having recovered possession before 1st December 1948 the problem is, can the landlord defendant Sailen do so now that Section 13, Rent Control Act 1948, is in operation.

11. The word 'tenant' under Section 13 of the Act should in my judgment be read with Section 2 (11) of the Act, which defines the tenant under the Act as including 'a tenant' who continues in possession after the termination of tenancy in his favour'. In my opinion therefore a tenant who continues in possession even though a notice to quit and/or a decree has terminated his tenancy, but which notice or decree has not been satisfied by recovery of possession from the tenant is a tenant under the Act. On the facts of this case the Ghose defendants answer to this description of a tenant under the Rent Control Act.

12. On a proper construction of Section 13 of the Act, I have come to this conclusion that the Ghose defendants as tenants sublet for a period not less than seven years within the meaning of Section 13 of the Act to the plaintiffs and as the plaintiffs and the Ghose defendants are still in possession and the decree or order of the Small Causes Court had not been satisfied prior to coming into operation of the Rent Control Act, 1948, and still remains unsatisfied the plaintiffs mast be deemed to be tenants holding directly under the landlord defendant Sailen on the same terms and conditions as they did under the Ghose defendants.

13. Holding this as I do it follows as a necessary sequel that Section 11 (3) of the Act will apply to the plaintiffs so that the plaintiffs would be deemed to be tenants of defendant Sailen in respect of the portion of the said premises let out to the plaintiffs. It is conceded on behalf of the landlord defendant Sailen that the decree in the Small Causes Court did not proceed on the ground provided in Sub-section (8) of Section 11 (1) of the Rent Act.

14. Mr. Sen then argues that on the basis of a decision of Banerji J. in Priyambada Mitter v. Jogesh Chandra Basu, in Suit No. 604 of 1946, de-livered on 16th June 1949 the plaintiffs cannot get the benefit of Section 13 of the Act, That decision of the learned Judge, I find, was not given with reference to Section 13 of the Act at all. The learned Judge in that case was construing Section 11 (3) of the Act and inter alia comes to the conclusion that Section 11 (3) of the Act has no retrospective operation. The question before me for decision is not on Section 11 (3) but on Section 13 of the Act. The consideration of Section 11 (3) in this case comes only incidentally. If Section 13 of the Act applies to the facts of the case then the language of that section itself makes it clear that the provisions of Section 11 (3) shall be applicable. It appears to me immaterial in this context as to whether the sub-lessees' interest fell with the fall of the lessee's interest when the decree or order of the Small Causes Court was made or the notice to quit given. The peculiar definition of a tenant under the Rent Control Act as including 'a person who continues in possession even after the termination of the tenancy in his favour' impels me to the conclusion that it is inconsequential whether under the Common law or under the Transfer of Property Act the tenant's interest fell or disappeared. It may have fell or disappeared under the Common law or under the Transfer of Property Act. Both under the Calcutta Rent Ordinance, 1916, which was the governing law on the subject from the 1st day of October 1946 till the 30th November 1948 as well as under Rent Control Act, 1948, which is the governing law since 1st December 1948 the definition of a tenant includes a person who continues in possession after the termination of tenancy in his favour. This termination of tenancy according to my interpretation of Section 2 (11) of the Act may be the result of a notice to quit or operation of law or even a decree or order of Court. The Statute does not put any limitation or qualification as to how the termination has to take place whether by act of parties or by decree or order of Court or by operation of law. The only limitation is that he must not have lost possession. As long as the test of possession is satisfied, he is a tenant within the extended meaning and definition provided under Section 2 (11) of the Act. Therefore in my judgment such a person must be regarded as a tenant even though his tenancy has been terminated by any cause whatever so long as he continues in possession and the possession has not been recovered by the landlord from him.

15. Such a result of the construction which makes the word tenant include an ex-tenant is not altogether unknown in the legal history and experience of Rent Registration Acts both in this country as well as in England. Reference may be made in this connection to the observations of Banks L. J. at p. 54 and Scrutiny L. J. at p. 58 in the decision of the Court of Appeal in Ramn v. City of London Real Property Co., reported in (1921) 1 K. B. 49: (89 L.J.K.B. 1105) and to the observations of Lord Atkins at p. 1099 in the judgment of the Judicial Committee of the Privy Council in the Karnani Industrial Bank Ltd. v. Satya Niranjan Shaw reported in 32 C. W. N. 1093: A. I. R. (15) 1928 P. C. 227). Rankin J. also held in Bithaldas v. Lalbehari Dutt & Sons, in 25 C. W. N. 967 at pp. 969-70 : (A. I. R. (9) 1922 Cal. 391) under the old Calcutta Rent Act of 1920 that the term tenant was used in a special sense and included a person whose tenancy had expired even before that Act came into operation and who could claim benefit under the said Act.

16. The landlord defendant Sailen could have executed the decree and might have recovered possession in such execution from the plaintiffs and the Ghose defendants before the Rent Control Act of 1948 came into operation, But the moment that Act of 1948 came into force on 1st December 1948 by the combined operation of Section 2 (11) and Section 13 of the Act the plaintiffs in my judgment must be deemed to be direct tenants as contemplated by Section 13 of the Statute. It is true that thereby the landlord loses his vested right to execute the decree or order i. e., the right that vested in him on the passing of such decree or order under the law prevailing before 1st December 1948. But the legislature has the power to override vested rights and while it is settled law that such vested rights must be taken away only by express words I find such express words in Section 13 of the Act when it uses the language 'notwithstanding anything contained in any other law for the time being in force'. In other words, though the law for the time being in force might have entitled a landlord to execute his decree for possession against his tenant in such a manner as to oust and evict also the sub-tenants and in this case might have therefore enabled the landlord defendant Sailen to execute his decree before the Rent Control Act, 1948, came into force, he lost such right the day when the Act came into operation and in my judgment Section 13 should be applied notwithstanding such law and notwithstanding the fact that by so applying landlord defendant Sailen's vested right is infringed.

17. It may not be out of place here to refer incidentally to a certain aspect of the nature of tenancy understood in the extended sense of a tenant under Section 2 (11) of the Act as a person who continues in possession even after the termination of the tenancy in his favour. Such a tenant has sometimes been described as a 'statutory tenant' an expression severely criticised by Bankes L. J. in Reeves v. Dean, (1924) 1 K. B. 685 at p. 690 and about which expression Scratton L. J. claimed the authorship and fell 'impenitent' according to the report of the same case in 93 L. J. K. B. 203 at p. 207. Bankes L. J. at p. 693 of (1924) 1 K. B. 685 observes without deciding the question that the statutory tenant while could not assign his right may still be entitled to sublet. But the question whether the statutory tenant can sublet or assign does not in my view arise in this case and I do not propose to express any opinion on that question in this case. Here the Ghose defendants who were the tenants sublet for a period not less than seven years within the meaning of Section 13, Rent Control Act of 1948. The decree or order of the Small Causes Court either of 8th December 1947 or of 2nd March 1948 did not make the Ghose defendants any the less tenants because they continued and still continue in possession within the meaning of Section 2 (11), Rent Control Act, 1948. The plaintiffs in this case became sub-lessees long before the decree or order of the Small Causes Court and therefore the Ghose defendants did not in this case, as statutory tenants in the sence of tenants continuing in possession after the termination of tenancy in their favour, sublet the premises to the plaintiffs. That sub-letting was done before the tenancy of the Ghose defendants had been terminated by the decree or order of the Small Causes Court, and ex concessis such subletting continued thereafter and still continues.

18. Mr. Sen's next submission is that on the basis of the plaint, the plaintiffs are not persons to whom the premises could have been 'lawfully sublet' within the meaning of Section 11 (3) of the Act because a major portion had been sublet to them without the necessary consent in writing of the landlord. I am afraid this argument suffers from a great fallacy. The fallacy in my opinion is this. Section 13, Rent Control Act 1948, makes no difference between lawful subletting and unlawful sub-letting. The distinction between lawful and unlawful sub-letting under 8. 11 of the Act has no place in my judgment on a construction of Section 13 of the Act and that for the very simple reason to be found in the express words of Section 13 'notwithstanding anything contained in this Act,' Effect must be given to those words and the only way such effect can be given is by saying that even though there was unlawful sub-letting and it was for a period not less than seven years as contemplated in Section 13 of the Act even then the sub-lessee will be deemed to be a tenant holding directly under the superior landlord. It is only after a sub-lessee is so deemed to be a direct tenant that the provisions of Section 11 (3) become applicable to him. In other words, my construction is that a sub-lessee can be a direct tenant in two ways under the Act of 1948. One is under Section 11 (3) of the Act where the premises have been 'lawfully sublet' within the meaning of Section 11 of the Act e. g., where there is no breach of proviso (b) (i) or (ii) of Section 11 (1) of the Act, and where the interest of the tenant has been lawfully determined except in the case provided for in proviso (f) of Section 11 (1) of the Act. That is one way by which a sub-lessee can be a direct tenant of the superior landlord. But the other way in which a sub-lessee can become a direct tenant of the superior landlord is under Section 13 of the Act where the sub-lessee has been a sub-lessee for a period of not less than seven years as contemplated therein notwithstanding the fact that such sub-lessee has been a sub-lessee in breach of proviso (b) (i) or (ii) of Section 11 (1) of the Act. That is the meaning I attribute to the words 'notwithstanding anything contained in this Act' appearing in Section 13 of the Act.

19. This disposes of all the arguments made before me and I answer the second part of the issue in the negative. I hold, therefor, that the plaintiffs are entitled to relief under Section 13, Rent Control Act, 1918, and they shall be deemed to be tenants holding directly under defendant Sailen on the same terms and conditions as they did under the Ghose defendants in respect of the portions of the said premises in their possession and occupation. There will be therefore judgment for the plaintiffs accordingly. There will also be a declaration in terms of prayer (1) of the plaint and an injunction in terms of prayer (3) of the plaint. The plaintiff swill also be entitled to the costs in this suit.


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