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V.R. Verma Vs. Mohan Kumar Mukherjee and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSpecial Bench Ref. in Civil Revn. Case No. 1792 of 1958
Judge
Reported inAIR1962Cal563,66CWN796
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 2, 13, 16, 16(3) and 16(6); ;Transfer of Property Act - Section 106
AppellantV.R. Verma
RespondentMohan Kumar Mukherjee and anr.
Appellant AdvocateLala Hemanta Kumar and ;Mohanlal De, Advs.
Respondent AdvocateMahindra Nath Ghose and ;Anilendra Lal Kar, Advs.
Cases ReferredSmt. Renula Bose v. Manmatha Nath Bose
Excerpt:
- bachawat, j.1. this reference raises the question, whether the land lord is required to serve notices, under section 106 of the transfer of property act and section 13(6) of the west bengal premises tenancy act, 1956, on a sub-tenant who has become a direct, tenant by an order under section 16(3) of the west bengal premises tenancy act, 1956 during; the pendency of a suit for ejectment against, him and the former tenant and whether the landlord is entitled to maintain the suit in the absence of such notices. opposite party no. 2, labh singh was a monthly tenant of suite no. 2 at 7 clyde row under opposite party no. 1, mohon kumar mukherjee. petitioner v.r. verma, was a monthly, sub-tenant of the aforesaid suite no. 2 under labh singh. m.k. mukherjee alleges that, on or about march 21,.....
Judgment:

Bachawat, J.

1. This reference raises the question, whether the land lord is required to serve notices, under Section 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956, on a sub-tenant who has become a direct, tenant by an order under Section 16(3) of the West Bengal Premises Tenancy Act, 1956 during; the pendency of a suit for ejectment against, him and the former tenant and whether the landlord is entitled to maintain the suit in the absence of such notices. Opposite Party No. 2, Labh Singh was a monthly tenant of suite No. 2 at 7 Clyde Row under opposite party No. 1, Mohon Kumar Mukherjee. Petitioner V.R. Verma, was a monthly, sub-tenant of the aforesaid suite No. 2 under Labh Singh. M.K. Mukherjee alleges that, on or about March 21, 1956, he served on Labh Singh one month's notice to quit the premises expiring with the month of the tenancy. On or about, April 29, 1956 V.R. Verma, gave, notice of the sub-letting to M.K. Mukherjee under Section 16(2) of the Act. On May 25, 1956 M.K. Mukherjee instituted ejectment suit No. 876 of 1956 in the Court of Small Causes, Calcutta impleading both Labh Singh and V.R. Verma as party defendants and asking for recovery of possession of the premises on the ground that the premises were reasonably required by the plaintiff for purposes of building and re-building and for making thereto substantial additions and alterations. On or about June 25, 1958 V.R. Verma made an application to the Rent Controller for relief under Section 16(3) of the Act joining M.K. Mukherjee and Labh Singh as parties thereto. The Rent Controller passed a preliminary order on September 7, 1956 and a final order on June, 4, 1957 declaring that Labh Singh's tenancy interest in the premises do cease and that the sub-tenant V.R. Verma do become a tenant directly under the landlord at a monthly rent of Rs. 59/-. An appeal from this order and a revision petition to the High Court have been dismissed. On or about May 2, 1958 V.R. Verma made an application in suit No. 876 of 1956 praying for declaration that the suit was no longer maintainable in view of the fact that during the pendency of the suit he had become a direct tenant and the notices required by law have not been served upon him. By an order dated May 7, 1958 the Trial Court held that the suit was maintainable and no further notice was required to be served on Verma. Verma has moved this Court on revision against this order and has obtained a rule. This civil revision case has been referred to this Bench under Chapter II Rule 1 proviso (ii) of the Appellate Side Rules.

2. Before us Mr. Lala argued that the suit is not now maintainable because (1) the direct tenancy in favour of Verma has not been determined by a notice to quit under Section 106 of the Transfer of Property Act and because (2) the notice required by Section 13(6) of the West Bengal Premises Tenancy Act 1956 has not been served upon him.

3. Now the notice under Section 106 of the Transfer of Property Act is required to determine a contractual monthly tenancy whereas the notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is required to enable the landlord to maintain a suit for ejectment against the tenant on grounds other than those mentioned in Section 13(1) (d) and (k). The two notices are required for different purposes though I am inclined to think that both the notices may be effectively given by a single document. The point for consideration in this case is whether both or either of the two notices required to be served by the landlord on the sub-tenant who becomes a direct tenant by an order under Section 16(3) during the pendency of the suit for ejectment against him and the former tenant.

4. It is to be observed that a direct tenancy may be created in favour of the sub-tenant after the elimination of the intermediate tenancy wider Section 16(3) as also under Sections 13(4) and 13(5) of the West Bengal Premises Tenancy Act, 1956, but those sections unlike Section 15 (3) of the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, Section 11(3) of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948 and Section 13(2) and the second proviso to Section 12(1) of the West Bengal Premises Rent Control (Temporary Previsions) Act 1950 do not provide that the upgraded sub-tenant shall hold under the landlord on the same terms and conditions on which he would have held under the tenant if the tenancy had Continued and/or had not been determined.

5. By Section 16(3) of the West Bengal Premises Tenancy Act 1956 the upgraded sub-tenant becomes a tenant directly under the landlord from the date of the order under it, but the section does not incorporate into the tenancy a condition that it is liable to determination by a notice to quit under Section 106 of the Transfer of Property Act. Such a tenancy is not a lease and the landlord is not required to determine it by a notice under that section.

6. The upgraded sub-tenant is of course a tenant within the meaning of Section 2(h) of the West Bengal Premises Tenancy Act 1956. I think he is also a tenant within the purview of Section 13(6) of the Act. He is a person by whom rent of the premises is payable. The order under Section 16(3) fixes the monthly rent payable by him to the landlord. The monthly rent so fixed is payable for each month of his tenancy. A suit for ejectment instituted against him after he becomes the direct tenant of the plaintiff landlord would not be maintainable in the absence of a notice to him under Section 13(6). But in this case the sub-tenant has become a direct tenant of the landlord during the pendency of a suit for ejectment instituted by the landlord against him and the former tenant on one of the grounds mentioned in Section 13(1) (f). On the supposition that the notice under Section 13(6) had been duly given to the former tenant the suit was properly instituted. The suit does not become defective by reason of the subsequent creation of the direct tenancy in favour of the defendant sub-tenant and the absence of notice to him under Section 13 (6). The! sub-tenant was not entitled to the notice before the institution of the suit. The landlord is entitled to continue the suit for ejectment properly instituted by him against a tenant and a sub-tenant on the ground mentioned in Section 13(1) (f) after due notice to the tenant under Section 13(6) and: the suit is maintainable notwithstanding the fact that no notice under Section 13(6) has been served on the sub-tenant who has subsequently become the direct tenant, if the landlord succeeds in obtaining a decree for recovery of possession of the premises, the decree will determine the direct tenancy created by the order under Section 16(3).

7. The Trial Court therefore rightly held that the suit is maintainable.

8. We pass the following order:

9. The Rule is discharged. In the circumstances of the case there will be no order as to the costs of the re-Terence and of the rule.

Sinha, J.:

10. The facts in this case are shortly as follows: OneMr. N.S. Salehjee was the owner of premises No.7, Clyde Row in the town of Calcutta, in January, 1954 the O. P. No. 1, Mohan Kumar Mukherjee purchased the same. The O. P. No. 2, Labh Singh was a monthly tenant in respect of suite No. 2 in the said premises at a monthly rent of Rs. 100/-. The O. P. No. 1 alleged that the premises was reasonably required by him for the purpose of building and re-building and making substantial additions and alterations therein. On or about the 21st March, 1956 the O. P. No, 1 served a notice to quit upon the O. P. No. 2 expiring on the last day of April, 1956. This notice was under Section 106 of the Transfer of Property Act. Under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'said Act'), tenants are protected against eviction. There are, however, certain grounds as set out in Section 13 of the said Act which are exceptions to the Rule, and under Clause (f) of sub-section (1) of Section 13, where the premises are reasonably required by the landlord for the purpose of building and re-building then the landlord is entitled to a decree for recovery of possession, provided he is otherwise entitled to such adecree. The O. P. No. 2 had sub-let to the petitioner, V.R. Verma, the said suite No. 2 in premises No. 7, Cylde Row. On or about the 29th April, 1956 the petitioner served notice under Section 16(2) of the said Act upon the O. P. No. 1. Sub-section (2) of Section 16 provides that where, before the commencement of the said Act, the tenant, with or without the consent of the landlord, has sun-let any premises either wholly or in part, the tenant, and every sub-tenant to whom the premises have been sublet, shall give notice to the landlord of such sub-letting in the prescribed manner. Sub-section (3) of Section 16 provides that in such a case, if there is no consent in writing of the landlord and the landlord denies oral consent, the Controller shall, on an application made to him in this behalf by the landlord or the sub-tenant, within two months from the date of the receipt of the notice of sub-letting by the landlord or the sub-tenant, as the case may be, by order declare that the tenant's interest in so much of the premises as has been sub-let shall cease and the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rent payable by the tenant and the sub-tenant as the case may be, from the date of the order. The rent so fixed shall be deemed to be the fair rent for the purposes of the said Act. I have already stated that on the 29th April, 1956 the sub-tenant gave notice under Section 16(2) to the landlord, who had already given a notice to quit upon the tenant. On the 29th May, 1956 the O. P. No. 1 filed Suit No. 876 of 1956 in the Court of the Small Causes, Calcutta, against the tenant, the O. P. No. 2, and in that suit made the sub-tenant, the petitioner in this application, a party. On the 25th June, 1956 the petitioner made an application before the Controller under Section 16(3) of the said Act, to be declared a direct tenant. This was numbered as Case No. 607B of 1956. The O. P. No. 1 contested the case. By an order dated 7th September, 1956 a preliminary order was passed to the effect that the petitioner was entitled to be declared a direct tenant under O. P. No. 1 and steps were taken for fixation of rent. On the 4th June, 1957 a final order was passed by the Controller declaring the petitioner to be a direct tenant under O. P. No. 1 at a monthly rent of Rs. 59/-, in respect of suite No. 2 in premises No. 7, Clyde Row. On the 2nd May, 1958 the petitioner made an application in the ejectment Suit No. 876 of 1956, claiming that he had become a direct tenant, and prayed that a preliminary issue be framed and tried as to the maintainability of the suit as against him, alleging that the suit was not maintainable on the basis of a notice served by the O. P. No. 1 upon the O. P. No. 2, prior to the commencement of the suit. It is necessary to mention here the provisions of Sub-section (6) of Section 13 of the said Act, which runs as follows:--

'Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with the month of the tenancy'.

11. As I have stated above, the ground on which the suit was filed against the tenant was Clause (f) of Sub-section (1) of Section 13. We are not concerned here with Clauses (j) and (k) of sub-section (1) of Section 13, because Clause(j) deals with the situation where the tenant had himself given a notice to quit and Clause (k) deals with the situation where the tenant had agreed in writing to deliver vacant possession. The case of the petitioner was that, he had become a tenant pending the disposal of the suit. As soon as he became a tenant, Sub-section (6) of Section 13. applied to him, and since a notice as provided thereunder had not been served upon him prior to the filing of the suit, it was not maintainable against him. This issue was allowed to be raised as a preliminary point and was tried as such by the Third Bench of the Court of Small Causes. The learned Judge held that on the date when the suit was instituted it was not necessary to serve any notice upon the petitioner. The fact that he became a direct tenant under the landlord pending the suit meant that he had stepped into the shoes of the tenant, at least for the purposes of the suit, and he might be considered as a representative of the former tenant, and as such the suit was maintainable against him, even without any notice. It was further held that the principle of lis pendens laid down in Section 52 of the Transfer of Property Act applied, as it also applied to involuntary alienations. According to the learned judge the sub-tenant having upgraded himself to the status of a tenant, was clothed with all the rights and liability of the tenant, and the suit was maintainable. The preliminary point was, therefore, answered in favour of the O. P. No. 1, and against the petitioner. Thereupon, the petitioner made an application under Section 115 of the Code of Civil Procedure, for setting aside of the said order, and on the 27th June, 1961 a rule was issued and there was an interim stay. On the 4th July, 1961 the matter came up for hearing before a Division Bench presided over by Mookerjee J. and was referred to the learned Chief Justice under proviso (ii) of Rule I of Chapter II of the Appellate Side Rules, for forming a larger bench. The matter has now come up before us for hearing.

12. The first point that has been argued before us is that no notice is necessary upon a 'statutory tenant'. Three Bench decisions of this Court have been cited before us, as well as a decision of the Supreme Court. The first case is, Haralal Das v. Pasupati Charan Biswas : AIR1955Cal226 . In that case, it was inter alia held that no notice was required to determine a statutory tenancy. A statutory tenancy under Section 12(1) of the Rent Control Act, 1950, would come to an end only under one of the different clauses in the proviso to Sub-section (1) of Section 12 of the 1950 Act, and not otherwise. Section 12(1) of the Rent Control Act, 1950 corresponds to Section 13(1) of the West Bengal Premises Tenancy Act, 1956. The facts in that case were as follows: The plaintiff let out a certain premises to a tenant, by a lease for a term of three years expiring on the end of December, 1950. Upon expiry of the lease, the lessor served a notice to quit upon the lessee on the ground that he required the premises for his own use and occupation. Under Clause (h) of the proviso to Sub-section (1) of Section 12 of the 1950 Act, the landlord was entitled to a decree for possession on such a ground. Upon the notice being served, the tenant replied that he had sublet the premises to a number of sub-tenants and the landlord was at liberty to take possession, subject to the said sub-leases. The lessor then instituted a suit for ejectment against the tenant and the sub-tenants. The tenant did not contest the suit. Two of the sub-tenants contested the suit and alleged that upon the expiry of the lease in favour of the tenant, they had acquired a statutory right of tenancy under the landlord, and before he could determine their tenancy the same would have to be determined by the service of a notice. It was held that upon the expiry of the lease, the tenant was still protected from eviction, unless the matter came within any of the grounds for exemption provided for under Section 12 of the 1950 Act. While the tenant continued as a statutory tenant, it was absurd to state that the sub-tenants had been upgraded to the status of a tenant. Under such circumstances, if the landlord was entitled to a decree for possession against the tenant, then it was not necessary to determine the sub-tenancies by a notice-to-quit. It is necessary to mention here that in the 1950 Act, there was no provision for giving notice as is provided for in Sub-section (6) of Section 13 of the 1956 Act. The next case cited is Kartick Chandra Das v. Ganga Dutt Murarka : AIR1956Cal120 . This was really on the point as to whether, after a tenancy had been terminated, the landlord was entitled to accept rent from the 'statutory tenant', and whether such acceptance of rent created a tenancy between them, so that the tenant would be entitled to a notice-to-quit before he could be evicted. It was held that under such circumstances the landlord was entitled to accept rent, because he had no alternative, and such acceptance did not convert the tenancy into a contractual tenancy, so that the tenant would be entitled to a notice-to-quit before he could be evicted. This case was also dealing with circumstances, as they existed prior to the coming into operation of Sub-section (6) of Section 13 of the Act of 1956. The next case is M.N. Ghosai v. P.K. Banerjee, 63 Cal WN 246; This was a case inwhich the landlord obtained an ejectment decree against the tenant. Thereafter, the West Bengal Premises Tenancy Act of 1956 came into operation and the petitioner made an application under Section 16(3) of the said Act claiming to be a sub-tenant, and for a declaration that he had become a direct tenant. It was held that: a sub-tenancy could not exist without a tenancy, and when the new Act came into operation there was no tenancy, it having been already determined, by a decree for ejectment. Therefore, the sub-tenant could not maintain, an application under Section 16(3). The next case cited is a decision of the Supreme Court Ganga Dutt Murarka v. Kartick Chandra Das : [1961]3SCR813 . This was an appeal against the decision mentioned above, reported in : AIR1956Cal120 . The appeal was dismissed. It was held that the tenancy of the appellant had been determined by lapse of time and subsequent occupation by him was not in pursuance of any contract but by virtue of the protection given by the rent control statutes and this did not confer any right upon him as a contractual tenant, and no notice under Section 106 of the Transfer of Property Act was necessary to be served upon a statutory tenant.

13. In my opinion, none of these decisions have dealt With the exact point that has come up before us for determination, in the present case. Where there is a contractual tenancy then, of course, the conditions under which the tenancy comes to an end are governed by the provisions, of the. Transfer of Property. Act and the terms of the contract. But when that tenancy has been determined, the tenant may claim protection under the Rent Control Acts. At such a stage, he is technically known as a 'statutory tenant' a term which has been nowhere defined but is well understood. It has been held that such a statutory tenant is not entitled to, a notice under Section 106 of the Transfer of Property Act. Under the 1950 Act, there was no special provision for giving notice. There is, however, a certain alteration in the law under the 1956 Act. Under Sub-section (6) of Section 13 of the said Act, it has been expressly provided that under certain circumstances notice has to be given. Where a tenant ceases to be a contractual tenant and becomes a statutory tenant, notice must be given under Section 13(6) because the word 'tenant' as defined under the said Act, includes a statutory, tenant. In the present case, what we have, to deal, with is the case of a sub-tenant who has been upgraded to the position of a tenant. If he had not been upgraded to the position of a, tenant pending the disposal of the suit filed against the tenant, in which he was a party, it might be argued that although no notice under Section 106 of the Transfer of Property Act was necessary, notice under Section 13(6) was necessary. Such however is not the case here. The sub-tenant has been upgraded to the position of a tenant while the suit was pending, and, his position is not that of a 'statutory tenant' within the meaning of the expression as used in the cases mentioned, above, although he is a tenant who can claim protection under the statute to the extent that such protection is extended to him. Under such circumstances, there can be no question of the service of a notice under Section 106 of the Transfer of Property Act upon him, because there is no contractual tenancy between him and the landlord. Since this is a case under the 1956 Act, the question still remains as to whether the petitioner comes within the provisions of Section 13(6), and whether the suit can proceed without the service of any notice upon him under, Sub-section (6) of Section 13. Firstly, it will be observed that Section 13(6) does not bar the passing of a decree for recovery of possession. All that it says is that no suit or proceeding for the recovery of possession shall be 'filed' without notice. Strictly speaking, no compliance with this provision of law is possible, because a. suit has already been filed, and is proceeding. The prohibition is only with regard to the filing pf the suit, and, prima facie this prohibition does not apply to the facts of this case. The way however that the matter has been argued is as follows: It is argued that when the suit was originally filed, the status of the petitioner was that of a sub-tenant. As such subtenant, he would neither, be entitled to a notice to quit under Section 106 of the Transfer of Property Act nor under Sub-section (6) of the said Act. He was, however made a party, because under the provisions of the Rent Control Act in force for the time being it was necessary to make him a party, in a suit for the recovery of possession against the tenant. Pending the disposal of the suit he had made an application under Section 16(3) and was upgraded, to the position of a tenant. It is argued, that as soon as he was declared as a tenant the provisions of Sub-section (6) of Section 13 applied to him and he was entitled to notice and no suit can lie without such a notice being served upon him. aS the suit is already there, it must be dismissed and the landlord must first serve a notice and then file a fresh suit. Plausible as this argument, sounds, it is not of substance, because an examination of the provisions of the said Act will show that it was not intended to apply Sub-section (6) of Section 13 to the case of subtenants, who are upgraded to the position of a tenant under Section 16(3) of the said Act, pending the disposal of a suit which has already been filed, and in which the tenant and the sub-tenant were both parties. If we are to apply this provision to such a case, an absurd situation may arise. Under Sub-section (6) of Section 13, no suit or proceeding for the recovery of possession is maintainable against a tenant without notice, if it is based upon any of the grounds mentioned in Sub-section (1) except the grounds mentioned in Clauses (j) and (k). Let us take a case under Clause (g). Under this clause, where the premises were let to a tenant for use as residence, by reason of his being in the service or employment of the landlord, and the tenant had ceased, before or after coming into operation of the said Act, to be in such service or employment, the landlord was entitled to a decree for recovery of possession. Suppose a landlord had instituted a suit against a tenant of this description, whose service or employment had ceased but he had let out to a sub-tenant, who is also made a party to the suit. Let us next imagine that the sub-tenant makes an application under. Section 16(3), and succeeds in having himself declared as a direct tenant, pending the, disposal of the said suit. In such a case, if the provisions of Sub-section (6) of Section 13 are to be made applicable, then a notice upon the sub-tenant who had been upgraded to the position of a tenant would be necessary. But what notice could be given in such circumstances? So far as the upgraded tenant is concerned, Clause (g) of Sub-section (1) of Section 13 would have no application. The result would be that the suit would fail and the upgraded tenant could not be evicted at all. Thus, while the tenant, in such a case was liable to eviction, merely by sub-letting the premises he could defeat the landlord's right to recover possession. In my opinion, it was not the intention of the, legislature to make Sub-section (6) of Section 13 applicable to such cases. Megarry in his 'Rent Acts' (8th edn. pages 425 to 431) points out that at common law, a subtenant's interest was extinguished automatically on the expiration of the tenancy out of which it was carved. The English Rent Act of 1920, however, contained provisions for the protection of a sub-tenant on the determination of a superior tenancy. Under the circumstances mentioned therein, upon the determination of the tenancy of the first degree, the sub-tenant, to whom the premises or any part thereof had been lawfully sub-let, was deemed to have become the tenant of the landlord, on the same terms as he would have held from the tenant if the tenancy had continued. Thus, if an order for possession was made against the tenant, it did not affect the right of any sub-tenant to whom the premises or any part thereof had been lawfully sub-let, before proceedings for recovery of possession or ejectment were commenced, to retain possession. Megarry points out, however, that the provisions did not confer any greater protection upon the sub-tenant than the tenant had, nor do they give the sub-tenant any greater protection than he had against the tenant. (See Lord Hylton v. Heal (1921) 2 KB 438; Enniskillen Urban District Council v. Bartlet, (1947) N. I. 177). In Section 13(2) of the Bengal Act of 1950, it was provided that under certain circumstances, a sub-tenant in respect of the demised premises or any part of it, may become a direct tenant under the landlord, where the tenant's interest had been determined 'on terms and conditions on which the sublessee would have held under the tenant if the tenancy of the latter had not been so determined'. Under Section 16(3) of the 1956 Act, it is provided that under certain circumstances, the tenant's interest may cease and the subtenant may be upgraded to the position of a tenant, but it does not say upon what terms the tenant was going to be declared as a direct tenant. In fact, it says nothing about the terms and conditions under which the upgraded sub-tenant should hold his tenancy directly under the landlord. The question, as to whether the omission of the qualifying words, was deliberate or not, and if so what the conditions of the tenancy should be under the present Act, is not free from difficulty. In this case, however, it is necessary to deal with only one aspect of it. The only question before us is as to whether it was intended toapply the provision of Sub-section (6) of Section 13 to a sub-tenant who was already a party to a suit against the tenant for recovery of possession, and who, during the pendency of the suit, has been upgraded to the position of a tenant. Upon a construction of the relevant provisions in the said Act, I am of the opinion that it was not so intended. I have already instanced an untenable situation that may arise if such a construction is permitted. In that event, as soon as the suit is filed, the tenant and his subtenant, may collusively start proceedings under Section 16, and render the suit infructuous. Where a sub-tenant is a party to a suit against the tenant for recovery of possession, and pending the suit he is upgraded to the position of a tenant, he is bound by all that has taken place in the meanwhile. The suit when instituted against the tenant would be valid if notice has duly been served on the tenant, and at that stage notice is not necessary to be served on the sub-tenant. The suit is not rendered incompetent because pending the suit, the sub-tenant has been upgraded to the position of a tenant. It is not perhaps necessary to go to the extent of saying that he is a representative of the tenant, as has been held by the court below. It would be sufficient to hold that Sub-section (6) of Section 13 does not require that in such a case a suit already filed should be dismissed and that a fresh suit should have to be filed against the upgraded sub-tenant, after service of a notice upon him. The bar under Sub-section (6) of Section 13, is to the filing of a suit, and under the circumstances arising in a case like the present, the suit having already been filed, the contingency does not arise. If it was intended to affect pending suits, by the provisions of Section 13(6), it would have been worded in a different manner. I must, therefore, hold that in the facts and circumstances of this case, the upgraded sub-tenant is neither entitled to a notice to quit under Section 106 of the Transfer of Property Act nor under Sub-section (6) of Section 13 of the said Act.

14. I must state here that I had some doubts as to Whether the suit can proceed on the pleadings as they stand at present. I am informed however, that according to the practice prevalent in the Court of Small Causes, there is not likely to be any difficulty, as the quondam subtenant himself has placed the necessary materials before the Court, and the Court is in a position to take notice of facts which have taken place subsequent to the filing of the original plaint, and to do complete justice between the parties.

15. For the reasons stated above, this application should be dismissed and I agree with the order made by my lord Bachawat J.

P.N. Mookerjee, J.

16. I agree that this Rule should be discharged and the Reference should be answered accordingly.

17. It is unnecessary to restate the facts as the same have been sufficiently stated in the judgments of my Lords.

18. The question, which falls to be answered in this Reference, has been framed by the Referring Bench in the following terms:

'Where, during the pendency of an Ejectment suit against the tenant and the sub-tenant, the latter is declared to be a direct tenant under Section 16(3) of the West Bengal Premises Tenancy Act, 1956, can the court pass an effective decree for possession in the absence of a proper notice to quit, terminating the above direct tenancy of the erstwhile sub-tenant'?

18a. The point is difficult and raises manifold considerations. Primarily, however, it depends upon the construction of three Sections of the above Act, namely, Section 2(h), Section 13 and Section 16. That a sub-tenant, upgraded to the status of a direct tenant under Section 16(3) of the aforesaid Act, is a tenant under the said statute cannot be denied. The relevant definition Section 2(h) would amply cover the case but, even apart from that, Section 16(3) itself calls him a tenant--a direct tenant, which puts the matter wholly beyond doubt. The incidents of this direct tenancy, however, except the rent and, possibly, also the date of commencement, are matters of grave doubt and disputed and three views are possible on this question. So far as rent is concerned, the section (Section 16(3)) itself casts a duty on the Rent Controller to fix it and the rent, so fixed, would be deemed to be fair rent under the Act. The statute again, expressly, provides that, under the aforesaid Section (Section 16(3)), the sub-tenant would become the direct tenant from the date of the Controller's order, thus, apparently, fixing the said date as the date of commencement of this tenancy or direct tenancy. On the other incidents, however, if any, the Statute is silent and, on them, as I have said above, three views are possible and these have been put forward as follows, namely,--

(i) that they are to be found in the above statuteand no incident attaches to this direct tenancy dehors the said statute or, in other words, unless derivable from the same;

(ii) that they are the incidents of the original tenancy, to wit, the tenancy of the tenant or the original tenant; and

(iii) that they are the incidents of the tenancy (subtenancy) of the particular sub-tenant concerned.

19. For my present purpose, it is not necessary to examine the correctness or otherwise of any of the above views, as, whichever view is adopted, the result will be the same and the question raised will have to be answered in the affirmative, though on slightly different reasonings.

20. If the first of the above three views be correct, the upgraded sub-tenant would be a purely statutory tenant in the truest and strictest sense of the term and he cannot claim any contractual right or incident apart from the statute. In such circumstances, the only notice, to which he may claim to be entitled, would be the one under Section 13(6) of the Act. That, however, is a notice of suit and is required for the filing of the suit. For a suit, which has already been filed, that is, before any occasion has arisen for the giving of the aforesaid notice, as when the upgrading of the sub-tenant to a direct tenant has taken place, as here, during the pendency of the suit, it is impossible, so far as the suit is concerned, to give any such notice and, prima facie, Section 13(6) will be irrelevant, inappropriate and inapplicable. Upon this impossibility, however, it is argued that that rather indicates that the statute did not protect such suits but it intended that they should lapse. I do not think that this argument is sound. Reference was made in this connection to the decision of the Privy Council in Smt. Renula Bose v. Manmatha Nath Bose , but that decision hardly supports the above argument, it rather shows the contrary. In that case, their Lordships ruled that, when the terms of the statute are satisfied, effect should be given to it without importing words or other considerations. Here the Statute refers to institution of the suit and has no reference to its pendency, that is, to any stage after its institution. It cannot, thus, obviously, apply and it can-not be distorted or changed to kill a pending suit like the present. The argument, therefore, should fail. In any event, it can stand only if the Statute, reasonably and properly construed, supports it. As seen above, the literal construction does not support it. We have only to examine whether there is anything in the scope, object or context of this particular statute, which modifies or alters that construction.

21. If, now, we turn to Section 13, which alone will be relevant from the above point of view, and analyse its provisions we would immediately notice -

(1) that, in Sub-section (2), it provides for the impleading of all subtenants, who have given notice under Section 16(2). It also provides for their protection. Further protective provisions are contained in Sub-sections (4) and (5) of the above Section 13.

(2) That the said sub-sections appear to be exhaustive on the point of protection of such sub-tenants, Sub-section (6) applying only in the case of tenants, that is, not to sub-tenants vis-a-vis the landlord or superior landlord until they have become direct tenants under him.

(3) That the aforesaid section (Section 13), read as a 'whole, entitles the landlord, so far as the Act is concerned, to a decree for eviction save in the excepted cases and subject to the protective provisions for the tenant and the sub-tenant, as contained therein.

22. In the circumstances, the above literal construction of Section 13 (6) would prevail and the appellant would not be entitled to rely upon it for defeating the instant suit.

23. In the aforesaid context, again, I am inclined to read Section 16 (3) of the above Act as subject to and controlled by its aforesaid Section 13 so that the upgraded status under the former section cannot affect a pending suit, validly instituted under the said Section 13. It follows, then, that, in such a case, Section 16(3) will not be available to the sub-tenant to defeat the pending suit. This is also sufficient to rule out the question of any notice under Section 106 of the Transfer of Property Act on this upgraded sub-tenant, if he was otherwise entitled to it on the other two views of his status and the incidents of his direct tenancy on the basis of the tenancy or the sub-tenancy in suit, the contract being deemed to be foisted on the landlord by the statute. The upgraded status is a creation of Section 16 (3) of the statute and, if the said section itself is subject to the other Section 13, the rights created, whatever their nature and extent, must be subject and subordinate to the said Section 13, and a suit, validly instituted under Section 13 against the tenant and the sub-tenant, cannot be defeated on the ground of notice by reason merely of the sub-tenant's upgrading under Section 16 (3) during its pendency.

24. I may point out further that the principle of lis pendens, which underlies section 52 of the Transfer of 'Property Act and which has been extended and applied to involuntary transactions, may also, apply to rule out the requirement of any notice in the case, contemplated by this reference. The origin of the upgraded sub-tenant's right lies in the creation of his sub-tenancy, as it is that subtenancy, which is now elevated or upgraded into the direct tenancy under the aforesaid Section 16 (3) of the West Bengal Premises Tenancy Act, 1956. That sub-tenancy, however, was undoubtedly, the result of an act of voluntary transfer on the part of the tenant, which, under the aforesaid Section 16 (3), caused an involuntary cessation of the tenant's interest with simultaneous and corresponding creation of the direct tenancy or the upgrading of the subtenant to the tenant's position, though,-- it may be,--not, necessarily, on the same terms as the latter's tenancy. The statute, however,--in the view, I have taken of Section 13 (6),--does not give the instant upgraded sub-tenancy any higher right than the original tenant's, at least in the matter of notice, nor could he have had any such higher right under his original contract of sub-tenancy. Taking an overall picture, the upgraded sub-tenant originally derived his status of sub-tenant under a transfer from the tenant, which status was upgraded to the tenant's status during the pendency of the suit by the compulsory statutory cessation of that tenant's interest, as aforesaid, and the statutory acquisition of it by the whilom sub-tenant, --may be, with rights, not, necessarily, the same as the old tenant's but in no way superior to them, so far, at least, as notice is concerned. To explain the above position, it is only necessary to add that the statute gives him (the upgraded sub-tenant) no higher right in the matter of notice than the original tenant's and the original contract of tenancy, --to the extent, it may govern this new or direct tenancy and govern the whilom sub-tenant's rights as a direct tenant, as aforesaid--would only place him, at the most, in the position of the original tenant's assignee and similar also would be his position, so far as his rights as a direct tenant, as aforesaid, spring from or depend upon his original contract of sub-tenancy, in that the said contract of sub-tenancy must, of necessity and in law, be subject and subordinate to the superior contract of tenancy, that is, of the head tenancy, in any view, then, so far as contractual incidents are concerned, the upgraded sub-tenant's altered status and rights would be no higher than the original tenant's assignee's. To sum up, so far as the instant case is concerned, it is the petitioner's original sub-tenancy (which, undoubtedly, rest-fid on a transfer by the tenant) which, under and by virtue of the statute, has worked out here, during the pendency of the suit, into the upgraded status of a direct tenant and the statute gives him, at least, in the matter of notice, no higher right.

25. In the aforesaid circumstances, it would be doing no violence to any legal concept and no injustice to this upgraded sub-tenant to deny him the right of defeating the pending suit on the ground of notice by reason merely of his upgraded status as aforesaid during its pendency and apply the doctrine of Ms pendens on principles underlying its liberal application, to avoid multiplicity of proceedings and prevent litigation from becoming interminable. Liberal application of the doctrine has the sanction of high authorities and, even if the present instance be viewed as an extension of the same, such extension would be amply justified.

26. In the above view, I would answer the question, raised in this reference, in the affirmative and answer the Reference as a whole by discharging the Rule.

27. I agree also that there should be no order for costs in the Rule and in the connected Reference.

28. Before concluding, I need only add that, duringthe course of hearing, a point was raised on Clause (g) of Section 13 (1) of the Act in support of the above pointof view but, for my present purpose, I have not deemedit necessary to rely upon it and has, accordingly, left itout of discussion on the instant occasion.


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