Salil Kumar Datta, J.
1. This is an appeal against a concurrent judgment decreeing the plaintiffs' suit. The facts of the case are not in dispute and are as follows:
2. The plaintiffs instituted a suit for recovery of khas possession of the suit premises being the entire premises comprised in Municipal Holding No. 56, Ward No. 3, Eanaghat Municipality which was held by Kumaresh, the defendant No. 1, as a monthly tenant under the plaintiffs. The tenancy was according to the Bengali calendar month the rent being Rs. 15/- per month. It was stated that the defendant No. 1 was a habitual defaulter in payment of rent and he illegally assigned, transferred or Sub-let the entire premises to the other defendants in separate portions. The tenancy was determined by a notice with the expiry of Poush. 1363 B.S. As the suit premises were not vacated, the suit was filed on May 25, 1957, on the ground of default and sub-letting.
3. The suit was contested by defendants Nos. 1 and 2 who filed a joint written statement it was stated that defendant No. 2 had no interest in the property and he was an unnecessary party. As to the other allegations, it was denied that the defendant No. 1 was a defaulter in payment of rent. It was also denied that the properties were transferred, assigned or sub-let as alleged. Two other written statements were filed by defendants Nos. 3 and 4 respectively who stated that they had been sub-tenants in the suit properties originally under the previous tenant Suresh, father of defendants Nos. 1 and 2 and thereafter there was a fresh tenancy granted to defendant No, 1 and these tenants continued to be in possession of the respective portions of the tenanted premises as sub-tenant as before. It was further stated that the sub-letting was done with the consent and knowledge of the plaintiffs and as such they were entitled to protection against eviction.
4. It appears that in course of the proceeding the written statement filed on behalf of defendant No. 1 was struck out in view of non-compliance with the provision of Section 17(1) and (2) of the Act, Defendants Nos. 3 and 4 actually contested the suit,
5. It is an admitted fact that defendants Nos. 3 and 4 had been in the suit premises even prior to the coming into force of the West Bengal Premises Tenancy Act, 1956. There is also no dispute that the defendants who are claiming to be sub-tenants did not give any notice under Section 16 (2) as required by the Act. The only question, therefore, that came up for consideration before the courts below was whether in the absence of such a notice the defendants Nos. 3 and 4 would be entitled to protection against eviction of the head-lessee. The courts below have taken the view that the provisions of the said section are mandatory and in the absence of their compliance of the defendants Nos. 3 and 4 were not entitled to protection against eviction. The suit was accordingly decreed against all defendants and affirmed on appeal. The present appeal is by the defendants Nos. 3 and 4.
6. Mr. Amarendra Mohan Mitra, the learned Advocate appearing for the appellants before me, has contended that the real purpose of the provision of Section 16 (2) of the Act was that the landlords for their future course of action should be appraised of the position in regard to the sub-letting of the premises which were in existence at the time the new Act came into force. This purpose, according to Mr. Mitra, was achieved by the fact that the landlords in this case were aware that the appellants were subtenants of the specific portions of the suit premises. Accordingly, even if no notice was served on the landlords under Section 16 (2) the sub-tenants in the said circumstances would be entitled to protection as afforded by Section 13 (2) of the Act. Mr. Amarendra Narayan Bagchi, the learned Advocate appearing for the landlords-respondents has contended that the above provisions' are mandatory and in the absence of non-compliance of this section, the defendants appellants could not claim any protection under the Act.
7. After considering the respective contention of the parties I am of the opinion that the provisions of the aforesaid section are mandatory and must be complied with before the defendants could claim any relief afforded to the sub-tenants under Sub-section (2) of Section 13 thereof. It will appear that in Section 16 (2) of the Act the language is that 'every sub-tenant to whom the premises have been sub-let shall give notice to the landlord of such sub-letting in the prescribed manner within six months of the commencement of this Act'. It is clear from its terms that the provisions of the said section are mandatory and a sub-tenant would have no protection against eviction of his head-lessor under the general law except for this provision. In view of the nature of the language of Sub-section (2) of Section 16 and the particulars prescribed in Rule 4 of the Rules under the Act and also of Sub-section (2) of Section 13 wherein sub-tenants have been referred to only as those who have given notice of their sub-tenancy to the landlords under the provisions of that section, there is no escape from the conclusion that the sub-tenants to be entitled to protection must be such subtenants as have given notice as requirec in Section 16 (2) and no others. This contention of Mr. Mitra on this point, accordingly, must be overruled,
8. Mr. Mitra next drew my attention to Sub-section (5) of Section 30 of the Act wherein it has been provided that if a sub-tenant fails to give notice as required in Sub-section (1) or (21 of Section 16 or intentionally furnishes information in such notice which is false in any material particular, he shall be liable to a fine as provided in the said Act. According to Mr. Mitra that was the only penalty which was provided for non-compliance with the section and no compliance of Section 16 (2) would be necessary if the landlord had already the knowledge that they were sub-tenants. In the instant case it appears that the landlords had knowledge that the defendants Nos. 3 and 4 were claiming to be sub-tenants. Sub-section (5) of Section 30, in my opinion, only provides for penalties of tenants or sub-tenants who fail to comply with the requirement of the provision of the said section. It does not create expressly or by implication any right in any circumstances in a sub-tenant who has failed to give a notice as required in Section 16 (2). I am, therefore, not inclined to agree with Mr. Mitra that because of the provision of Sub-section (5) the sub-tenants are entitled to protection if the landlord has knowledge of their sub-tenancy and no notice thereof is given by the subtenants to the landlords under Section 16 (2).
9. Mr. Mitra next contended that his clients' rights were protected under Section 40 of the Act. Section 40 (1) of the Act says that the West Bengal Premises Rent Control (Temporary Provision) Act, 1950 is thereby repealed. As we all know, this Act came into force on March 31, 1956. In Sub-section (2) (b) thereof It was further provided that notwithstanding such repeal any right or privilege under the said Act and relating to the period before such repeal may be instituted or enforced as if the earlier Act had been in force and had not been repealed. On the basis of the above provision Mr. Mitra has contended that under the previous Act his clients had the right to be protected even as sub-tenants and such right must be deemed to have been preserved under the provision of Section 40 (2) (b) of 1956 Act and could be enforced in law as was sought to be done by the defendants appellants in this case. The contention, apparently attractive, has also no force. It will appear that if any right had accrued to a sub-tenant relating to a period before such repeal, that right, it could be argued, was preserved by the said section. But here we are concerned with a sub-tenancy which is continuing even after the repeal of the earlier Act and accordingly the above Sub-section which protects or preserves a right under the earlier Act relating to the period before such repeal, can have no application. This is the reason why a time-limit was provided for issue of notice under Section 16 (2), originally for a period of three months, which was later on extended to six months by Amending Act XXVIII of 1956 for protection of the sub-tenants who are so even after the repeal. Accordingly, it cannot be said that the right of a sub-tenant under the earlier Act was preserved under the provision of the said sub-section. The sub-tenants continuing after the period the present Act came into force, were required in consequence to comply with the requirements provided in Sub-clause (2) of Section 16 of the Act and in the absence of such compliance the sub-tenants cannot be held to be subtenants as would entitle them to any protection under the proviso to Sub-section (2) to Section 13 of the Act.
10. Mr. Mitra next contended that the proviso to Section 13 (2) gives protection against eviction to 'such sub-tenants unless any of the grounds mentioned in Clauses (b) to (e) and (h) apply to them. According to him 'such sub-tenant' would mean a person who has been impleaded as such sub-tenant and accordingly the appellants should also be held to be entitled to protection. It will, however, appear from Sub-section (2) to Section 13 that 'sub-tenants' referred to therein include only such sub-tenants who have given notice under Section 16 (2). In the subsequent portion in the following proviso the words 'such sub-tenant' have been used and that would necessarily mean and refer to such sub-tenant who has given notices under Section 36 and not persons who may have been impleaded as party-defendants or even as subtenants. Accordingly, merely by reason of the fact that they have been made parties defendants, they are not entitled to claim protection as such sub-tenants because they do not come within the definition of sub-tenants' in the said sub-section (2) of Section 13 and its proviso.
11. The last contention of Mr. Mitra is that if the appellants are not subtenants in these proceedings, they should be let off from these proceedings as being unnecessary parties. The plaint discloses that these persons have been made parties as according to the plaintiffs, they have been in possession of portions of the premises as illegal assignees, transferees or sub-lessees. In a suit for recovery of possession it is competent for a plaintiff to pray for relief against such persons as may be in actual possession of the suit premises. There is, therefore, nothing illegal in the plaintiffs making these appellants parties in this suit as admittedly they have been in occupation of portions of the same. I, therefore, do not find any reason why their names should be; struck off from the plaint of this suit as they are also necessary parties when the relief claimed is one for recovery of possession.
12. As all the contentions raised on behalf of the appellants fail this appeal is dismissed. There will, however, be no order as to costs in this appeal.
13. Leave under Clause 15 of the Letters Patent is prayed for and is granted,
14. Let operation of this order remain stayed for a period of one month from this date as prayed for by the learned Advocate for the appellants.