1. This Rule raises the question of the procedure to be adopted in the Calcutta Court of Small Causes in cases where landlords have obtained orders for recovery of possession of premises from their tenants and on seeking to carry out the orders are opposed by subtenants alleging that he had some right under the new West Bengal Premises Rent Control (Temporary Provisions) Act.
2. In previous cases disposed of by me the facts were that the tenants had applied to the Court even before the landlord had sought through Court to obtain possession of the premises, and I have pointed out that such applications are premature. I have also pointed out that in my opinion the sub-tenant has a remedy under the provisions of Order 21, Rules 97 to 100, Civil P.C. which are made applicable to these proceedings of the Calcutta Court of Small Causes under Section 49 (sic), Calcutta Small Causes Court Act.
3. In the present case, the landlord had obtained possession of some of the premises in pursuance of his order against his tenant but in respect of one room and kitchen held by opposite party 2 he was resisted by opposite party 2 and did not obtain possession. Opposite party 2 then went to Court and stated that he had a sub-lease and prayed that the plaintiff be forbidden from taking possession of the room, occupied by the applicant by execution of the decree and that the bailiff in charge of the execution of the writ of possession in connection therewith be directed accordingly. This prayer was eventually rejected on August 5 on the ground that the application by the sub-tenant was not maintainable. On August 18, the landlord applied to the Court for police help to obtain possession and the Court granted the prayer. The sub-tenant has now moved this Court.
4. It cannot be said that in form there is anything wrong with the actual order passed by the learned Judge on August 5, because the sub-tenant was not entitled to make the application in the form in which he has made it. On the other hand, the sub-tenant I think is perfectly entitled to draw the attention of the Court to the fact that he has a claim under the new Rent Control Acts to ask the Court not to give further assistance to the landlord in carrying out the Court's order in respect of the premises occupied by the sub-tenant, but to insist that the landlord makes no application under Order 21, Rule 97 so that the question of the right of the sub-tenant may be properly determined by the Court. It does not seem to me right that when once a Court is given to understand that there is a sub-tenant claiming a right under the Acts that the Court should drag in the police and go on providing the landlord with further and more powerful weapons to force the sub-tenant out under the street, and leave him then to go to Court under Order 21, Rule 100. The order of August 18 directing that such help be given is quashed.
5. With these comments, the Rule is discharged but the Court may bear this in mind if any further application is made by the landlord for forceful assistance to execute his orderand if the landlord does not first make anapplication under Order 21, Rule 97. I make no orderas to costs.