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R.N. Aich Roy Vs. Hanuman Estates (P.) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1355 of 1964
Judge
Reported inAIR1971Cal468
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(2) and 16
AppellantR.N. Aich Roy
RespondentHanuman Estates (P.) Ltd. and anr.
Appellant AdvocateS.C. Mitter and ;Syamaprasanna Roy Chowdhury, Advs.
Respondent AdvocateLala Hemanta Kumar and ;Manick Chandra Banerjee, Advs. for Opposite Party No. 1
DispositionPetition dismissed
Cases ReferredA. C. Estates v. Serajuddin
Excerpt:
- .....engineering company limited and by the petitioner r. n. aich roy, the managing director of messrs. trade nexus private limited whereupon the decree-holder company made an application under order 21, rule 97 of the code of civil procedure praying for police help.3. the case of the petitioner was that one meckenzie lyall and company was the tenant of the first degree under the decree-holder company. the judgment-debtor company was me sub-tenant under the tenant of the first degree. the judgment-debtor company sublet the suit premises to messrs. trade nexus private limited. after the west bengal premises tenancy act, 1956 came into force messrs. trade nexus private limited served a notice under section 16 (2) of the act on its immediate landlord, the indian and eastern engineering company.....
Judgment:
ORDER

M.M. Dutt, J.

1. This Rule is directed against Order No. 24, dated March 19, 1964 of the learned Chief Judge, City Civil Court, Calcutta, whereby the learned Chief Judge allowed the miscellaneous case arising out of an application under Order 21, Rule 97 of the Code of Civil Procedure.

2. The decree-holder opposite party Messrs. Hanuman Estates (Private) Limited obtained a decree for ejectment in Ejectment Suit No. 1945 of 1960 against the Indian and Eastern Engineering Company Limited in respect of two rooms. The said decree was executed and when the bailiff had been to the suit premises for delivery of possession resistance was offered by one D. N. Varma, the managing director of the judgment-debtor company, namely, the Indian and Eastern Engineering Company Limited and by the petitioner R. N. Aich Roy, the managing director of Messrs. Trade Nexus Private Limited whereupon the decree-holder company made an application under Order 21, Rule 97 of the Code of Civil Procedure praying for police help.

3. The case of the petitioner was that one Meckenzie Lyall and Company was the tenant of the first degree under the decree-holder company. The judgment-debtor company was me sub-tenant under the tenant of the first degree. The judgment-debtor company sublet the suit premises to Messrs. Trade Nexus Private Limited. After the West Bengal Premises Tenancy Act, 1956 came into force Messrs. Trade Nexus Private Limited served a notice under Section 16 (2) of the Act on its immediate landlord, the Indian and Eastern Engineering Company Limited. Thereafter, Messrs. Trade Nexus Private Limited started a proceeding under Section 16 (3) of the Act In that proceeding the tenant of the first degree, namely, Messrs. Meckenzie Lyall and Company and the Indian and Eastern Engineering Company Limited were parties. The decree-holder company who was the superior landlord was not a party to the said proceeding. The controller by his order dated July 25, 1957 held that the application under Section 16 (3) was filed within the statutory period of limitation, that the notice under Section 16 (2) was legal and valid and that the petitioner was entitled to be declared as a direct tenant under the Indian and Eastern Engineering Company Limited (sic Meckenzie Lyall and Company?) under Section 16 (3) of the Act. It appears, however, that in the subsequent proceeding for apportionment of rent the Rent Controller dismissed the application under Section 16 (3) on the ground that the superior landlord Hanuman Estates Private Limited was not made a party to the said proceeding. That order was passed by the Controller on September 12, 1958. The said order was not produced before the court below by either of the parties, but a certified copy of the order has been produced before me at the time of hearing of the Rule.

4. It was contended on behalf of the petitioner before the court below that Messrs. Trade Nexus Private Limited having been in occupation of a room in the second floor as a sub-tenant under the judgment-debtor Messrs. Indian and Eastern Engineering Company Limited ever since 1953, that Messrs. Trade Nexus Private Limited having been declared to be a direct tenant of Meckenzie Lyall and Company in the proceeding under Section 16 (3) and that Messrs. Trade Nexus Private Limited not having been made a party in the suit for ejectment, the application under Order 21, Rule 97 was not maintainable. Neither D. N. Varma nor the judgment-debtor company entered appearance in the said proceeding under Order 21, Rule 97. The proceeding was only contested by the petitioner R. N. Aich Roy.

5. The learned Chief Judge was of the view that as the superior landlord was not a party to the proceeding under Section 16 (3) the order of the Rent Controller was not binding upon the superior landlord. In that view of the matter the learned Chief Judge allowed the said miscellaneous case and directed delivery of possession of the suit premises through police help.

6. The question before me for consideration is whether Messrs. Trade Nexus Private Limited was a necessary party in the suit for ejectment and whether the decree for ejectment was binding upon M/s. Trade Nexus Private Limited. Under Section 16 (2) of the Act where before the commencement of the Act, the tenant with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sub-let shall give notice to the landlord of such subletting in the prescribed manner within six months of the commencement of the Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. Messrs. Trade Nexus Private Limited was a subtenant under the Indian and Eastern Engineering Company Limited. There can be no doubt that in view of the definition of the words 'landlord' and 'tenant' the Indian and Eastern Engineering Company Limited was the landlord of Messrs. Trade Nexus Private Limited. Under Section 16 (2) Messrs. Trade Nexus Private Limited being a tenant of the Indian and Eastern Engineering Company Limited was required to serve a notice under Section 16 (2) upon its landlord and the Indian and Eastern Engineering Company Limited in its turn was required to serve a notice under Section 16 (2) on its landlord, namely Messrs. Meckenzie Lyall and Company. It has been found by the Rent Controller that the provisions of Section 16 (2) have been complied with by Messrs. Trade Nexus Private Limited and also by the Indian and Eastern Engineering Company Limited. Messrs. Trade Nexus Private Limited was, therefore, entitled to claim relief under Section 16 (3) as against its landlord the Indian and Eastern Engineering Company Limited. The Rent Controller, as aforesaid, also declared Messrs. Trade Nexus Private Limited to be the direct tenant under the tenant of the first degree, namely, Messrs. Meckenzie Lyall and Company. The order of the Rent Controller declaring Messrs. Trade Nexus Private Limited as a direct tenant under Messrs. Meckenzie Lyall and Company would be binding upon the latter.

7. It was, however, contended by Mr. Lala that the order of the Rent Controller would not be binding upon the superior landlord that is, Messrs. Hanuman Estates Private Limited, as it was not a party in the said proceeding under Sec. 16(3). My attention was drawn to a decision of this Court in Paresh Nath Cloth Stores v. Nityananda Pal, (1960) 64 Cal WN 663 where it has been held that when there is a succession of sub-lettings and there are tenancies of different degrees, an intermediate tenant may in his turn be a landlord and in such a case the person from whom he is entitled to receive rent is the tenant and the person to whom the tenant in his turn sub-lets is the sub-tenant. It has been further held that the expressions 'landlord', 'tenant' and 'sub-tenant under Section 16 (3) should bear the same meaning which they have in Sub-section (2) and that the sub-tenant and the tenant are the immediate parties to the sub-letting of which notice is to be given under Section 16 (2). In that case the superior landlord was not a party and it was a dispute between the tenant of the first degree and the sub-tenant of the tenant of the first degree. In this connection we may refer to Section 13 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, Section 13 (1) provides as follows:--

'Sub-lease not to be binding in certain cases. (1) Notwithstanding anything contained in this Act, or in any other law for the time being in force, if a tenant inferior to the tenant of the first degree sub-lets in whole or in part the premises let to him except with the consent of the landlord and of the tenant of a superior degree above him, such sub-lease shall not be binding on such non-consenting landlord, or on such non-consenting tenant.

Explanation.-- In this sub-section--

(a) 'a tenant of the first degree' means a tenant who does not hold under any other tenant;

(b) 'tenant inferior to the tenant of the first degree' means a tenant holding immediately or mediately under a tenant of the first degree;

(c) landlord' means the landlord of a tenant of the first degree.'

8. Under Section 13 (1) the subtenancy created by the tenant inferior to the tenant of the first degree will not be binding upon the superior landlord. In the instant case the sub-tenancy was created when the 1950 Act was in force. It was, however, contended by Mr. Mitter, learned Advocate appearing for the petitioner that after the repeal of the 1950 Act the rights and obligations under the said Act came to an end and cannot be enforced. Mr. Lala, however, referred to the provisions of S. 40 of the West Bengal Premises Tenancy Act, 1956 which repeals the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and saves certain proceedings referred to in Sub-section (2). Sub-section (2) of Section 40 does not, however, say about the existing rights and obligations, but it only provides that any proceeding pending on the 31st day of March 1956 may be continued or any proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment under the 1950 Act and relating to the period before such repeal may be instituted or enforced as if the said Act had been in force and had not been repealed or had not expired. It, therefore, makes provisions for the continuity of any proceeding and for the enforcement of any remedy in respect of any right, privilege etc. It is, however, not necessary for me to finally decide that question for the reasons stated hereinafter. Section 13 (1) of the West Bengal Premises Tenancy Act, 1956 enumerates the grounds on which a suit for ejectment can be decreed against the tenant. Sub-section (2) of Section 13 provides that the sub-tenants, if any, referred to in Section 16 who have given notice of their sub-tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord, provided that except in cases covered by Clause (f) or Clause (g) of Sub-section (1), no decree or order for ejectment shall be passed against any such subtenant unless any of the grounds mentioned in Clauses (b) to (e) and (h) apply to him. Under Sub-section (2) unless the landlord is served with a notice under sub-s. (2) he will not be bound to make the sub-tenant a party in the suit for ejectment. In order to defeat the decree obtained by the landlord on the ground of non-joinder of the sub-tenant it must have to be proved that the sub-tenant had served the landlord with a notice under Section 16 (2). Unless the landlord is aware of the fact of sub-letting either by the tenant of the first degree or by the tenant inferior to the tenant of the first degree, the landlord cannot be fastened with the knowledge of such sub-letting. The whole object of Section 16 (2) was to bring to the notice of the landlord the fact of subletting. It may be that in the instant case Messrs. Trade Nexus Private Limited has complied with the provisions of Section 16 (2) by serving a notice upon its immediate landlord and that for the purpose of Section 16 (3) its immediate landlord would be bound by any order passed in the proceeding under Section 16 (3). It cannot be said that the superior landlord filing a suit for ejectment against its tenant would also be bound by any order passed by the Controller under Section 16 (3). Whether the subtenant has to be made a party in the suit for ejectment or not is provided in Section 13 (2). The plain meaning of the provisions of Section 13 (2) leaves no manner of doubt that the landlord is not bound to make the sub-tenant a party to the suit unless the sub-tenant has served the landlord with a notice under Section 16 (2) subject of course to the provisions contained in the proviso with which we are not concerned in the instant case. Service of a notice under Section 16 (2) on the immediate landlord may be quite effective against the immediate landlord of the sub-tenant concerned, but in view of Section 13 (2) it will not be effective against the superior landlord unless the superior landlord instituting the suit for ejectment was served with a notice under Section 16 (2) of the Act, Mr. Mitter relied on a decision of the Supreme Court in A. C. Estates v. Serajuddin, : [1966]1SCR235 . The Supreme Court has held that in Section 16 (3) there are two parts, the first declaring that the tenant's interest has ceased and the sub-tenant has become a tenant directly under the landlord. It has been further held by the Supreme Court in that decision that the declaration made by the Controller under the first part of Section 16 (3) cannot he treated to be an interlocutory order so that the same may be rescinded by the Controller when he is taking steps for the fixation of rent under the second part. In view of the said decision of the Supreme Court the declaration made by the Controller by his order dated July 25, 1957, remained, but as I have found before, the said order will not be binding upon the superior landlord so as to compel him to make the subtenant Messrs. Trade Nexus Private Limited a party in the suit for ejectment.

9. For the reasons stated above the decree for ejectment obtained by the decree-holder company was good and valid and was binding on all sub-tenants who did not serve the decree-holder company with notice under Section 16 (2) of the Act. The learned Chief Judge was right in allowing the application of the decree-holder company under Order 21, Rule 97 of the Code of Civil Procedure. The Rule is discharged, but there will be no order for costs in the Rule. Let the certified copy of the order-sheet of the Rent Controller filed on behalf of the decree-holder company be kept on the record.


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