1. This is a revisional application under Section 115, Civil P. C., from the order of the learned Judge, 6th Bench of the Small Cause Court, Calcutta dismissing an application under Section 13(2), Rent Control Act, 1950,, on the ground that such an application is not maintainable in a summary proceeding for delivery of possession and allowing an application under Order 21 Rule 97, Civil P. C., and directing that the plaintiff decree-holder be put in possession of the premises with police help, if necessary. The premises in question, viz., 28A Mohan Bagan Lane, belonged to the opposite parties Nos. 1 and 2, Dr. M.N. Bose and another. Opposite party No. 3 Sasti Charan Sen was a direct tenant under the landlords opposite parties Nos. 1 and 2. The petitioner Bhupesh Chandra Dutt is a sub-tenant in respect of a portion of the premises in question. The landlords obtained an ejectment decree against the tenant opposite party No. 3 in Suit No. 493 of '1951 of the 6th Bench of the Small Cause Court, Calcutta. The grounds on which the ejectment was sought and granted were, firstly, that the tenant was in arrears, and secondly, that he had sublet a considerable portion of the premises to sub-tenants who had been in occupation for more than seven months. When the landlords tried to obtain possession of the premises they were resisted by the petitioner Bhupesh Chandra Dutt who claimed to have acquired a tenancy directly under the landlord under the provisions of Sub-section 2, Section 13, Rent Control Act, 1950. The landlords accordingly filed an application under Order 21, Rule 97, Civil P. C. and the petitioner filed an application under Section 13(2), Rent Control Act, pleading that he was a lawful sub-tenant and therefore should be deemed to be a tenant directly under the landlord, and so the landlord could not obtain delivery of possession against him. The learned Judge held that the sub-tenant was to obtain relief by a properly framed suit in a court of competent jurisdiction and that the application under Section 13(2) did not lie in a court of summary jurisdiction for delivery of possession. He allowed the application' under Order 21 Rule 97 Civil P. C. Against that order, the sub-tenant Bhupesh Chandra Dutt has filed this revisional application, contending that the court below acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to go into the question of the right of the sub-tenant under Section 13(2), Rent Control Act. This is the only point for consideration in this revisional application.
2. Under Section 13(2), Rent Control Act, 1950
'where any premises or any part thereofhave been or has been sublet by a tenant ofthe first degree and the sub-lease is bindingon the landlord, if the tenancy of such tenantis lawfully determined otherwise than byvirtue of a decree in suit obtained by thelandlord by reason of any of the groundsspecified in clause (h) of the provision toSub-section (1) of Section 12, the sublesseeshall be deemed to be a tenant in respect of such premises or part of premises holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sublessee would have held under the tenancy if the tenancy of the latter had not been so determined.'
On the strength of this provision, the petitioner alleged that he had acquired a valid title as tenant directly under the owners of the premises, that is, opposite parties Nos. 1 and 2. It was of course for him to prove that he had so acquired the right of tenancy by fulfilling the conditions laid down in the subsection quoted above. The learned Judge below held that an application under Section 13(2), Rent Control Act, could not be entertained in a summary proceeding for delivery of possession. This decision is based on High Court rulings, e.g., in the case of -- 'Thakurdas Pushpraj v. Dwarka Prasad', 87 Cal LJ 181 and therefore that decision must be held to be correct. But while the sub-tenant cannot file an independent application under Section 13(2), Rent Control Act, in a summary proceeding for delivery of possession, it appears that the learned Judge below was wrong in holding that the objection could not be heard even as an objection to the landlord's application under Order 21, Rule 97, Civil P. C. In this connection, I may refer to the ruling in the case of -- 'Debendra Nath v. Parul Bala', 88 Cal LJ 105 where it was held that although a subtenant was not entitled to make an application for forbidding the landlord from taking possession on the ground of sub-lease, yet he was perfectly entitled to draw the attention of the court that he had a claim under the Rent Control Act to ask the court not to give every assistance to the landlord in carrying out the court's order in respect of possession of the premises occupied by the sub-tenant, but to insist that the landlord made an application under Order 21, Rule 97 so that the question of the sub-tenant's right might be determined. In other words, in the application filed by the landlord under Order 21, Rule 97, of Civ)l P. C. the sub-tenant's right under Section 13(2), Rent Control Act, may and should be determined and the court below was wrong in not doing so.
3. The learned Advocate appearing for the opposite parties has urged that even if the court below has made a mistake of law' the mistake cannot be remedied in the revisional application, because there is nothing to show that the court acted beyond its jurisdiction, or did not exercise the jurisdiction lawfully vested in it. As to the scope of Section 115, there are contradictory rulings one of the latest on the point being -- 'Venkatagiri Ayyangar v. Hindu Religious Endowment Board', Mad, 76 Ind App 67 (P.C.) wherein it was held that where a court below has gone wrong in respect of an established provision of law the High Court under s. 115, Civil P. C., may always intervene. In this case also, the Court below has made a mistake as to the provision of law, and it is also against all ideas of, justice that a subtenant who has a right to remain in a part of, the premises should first be turned out and then be compelled to file a suit for establishing his right. Accordingly this Rule is made absolute and the order of the court below is modified; while the order dismissing the independent application under s. 13(2), Rent Control Act, 1950, is affirmed, the order allowing the application of the landlord under Order 21, Rule 97, Civil P. C. is set aside and the court below is directed to dispose of the application according to law after giving the petitioner an opportunity to contest the application by proving his right, if any, under Section 13(2), Rent Control Act.
4. There will be no order as to costs.