P.N. Mookerjee, J.
1. Respondent No. 2, Abdul Monsur, was the owner of Premises No. 16 Chakraberia Road, North, and he let out the said premises to respondent No. 3 Abdul Hamid at a monthly rental of Rs. 35/-. In or about September 1946, the tenant Abdul Hamid sublet the entire premises to the appellant Surendra Nath Mukherjee who is still in actual occupation of the same. On 8-8-1944, the landlord Abdul Monsur duly gave to his tenant Abdul Hamid a notice to quit asking him to vacate the premises with the end of August 1944 on the allegation that the premises were required by him bona fide for his own use and occupation. The landlord Abdul Monsur applied for and obtained from the Rent Controller on 3-8-1945 the necessary permission to sue for ejectment under the Calcutta House Rent Control Order 1943 which was then in force. No suit, however, was brought until 1-3-1947.
In the meantime the Rent Control Order of 1943 had expired and the Calcutta Rent Ordinance of 1946 had come into force on and from 1-10-1946 but the plaintiff Abdul Monsur did not take any fresh permission under this ordinance and it was not also his case -- as it could not be under the law -- that the permission, obtained under the Rent Control Order of 1943, would be available for the purposes of the present suit. The suit was contested by the sub-tenant defendant No. 2. Defendant No. 1 filed a written-statement admitting his sub-letting of the entire premises to defendant No. 2 and, although he raised some other defences, he did not eventually appear at the trial.
2. On 9-9-1947, the plaintiff Abdul Monsur sold the disputed premises to the present respondent No. 1, Lila Mohan Singha Roy, who, on his own application, was added as a co-plaintiff to the pending suit on 25-2-48. Thereafter, the suit proceeded and eventually it was dismissed so far as the claim for ejectment and mesne profits was concerned, the learned Munsif merely passing a decree for rent for August 1949 which was also a part of the claim in suit. On appeal, this decision was affirmed by the learned Additional Subordinate Judge but, on second appeal to this Court, the case was remanded to the trial Court for re-hearing according to law. This re-hearing before the learned Munsif again resulted in a dismissal of the claim for ejectment and mesne profits but, on appeal, that decision was reversed by the learned Subordinate Judge who gave the added co-plaintiff a decree for ejectment and mesne profits in addition to the decree for rent, already made by the learned Munsif. Hence this appeal by the subtenant defendant.
3. Before passing on to the rival contentions of the parties in this appeal, it is necessary to state that, on the previous occasion, the decree for ejectment and mesne profits was refused by the two Courts below really on the ground that, in the absence of a permission from the Rent Controller under Section 13, Calcutta Rent Ordinance 1946, the suit for ejectment, wherein one of the grounds taken was bona fide requirement of the disputed premises for the landlord's own use and occupation, was not maintainable. Indeed, it appears clear that that was the very basis of the judgments of the two Courts below which were ultimately set aside by this Court in the second appeal, wherein the order of remand and re-hearing of the suit according to law was made.
4. The main defence to the plaintiff's claim for ejectment was that, as one of the grounds, given in that behalf in the plaint, was bona fide requirement for the landlord's use and occupation, and, as, admittedly, there was no permission from the Rent Controller under the Rent Ordinance of 1946 which was in force when the suit was filed, the suit for ejectment could not be entertained by the Court. This defence succeeded, as I have already stated, before the two Courts below on the earlier occasion and also before the learned Munsif at the re-hearing after remand.
The learned Subordinate Judge, however, in his judgment which is now under appeal rejected this defence upon the view that the absence of permission affected only the ground of bona fide requirement and, as that was not pressed during the trial, there was no bar to the Court's decreeing the suit on other grounds and, he having found that there was unauthorised and unlawful subletting to the present appellant, ruled out all defences under the Bent Control Law in view of the express provision of Section 12, Sub-section (1), proviso (b) of the 1948 Ordinance which governs the present case. A decree for ejectment and mesne profits was made by him in the co-plaintiff's favour.
The learned Subordinate Judge also held that under Section 13 of the Ordinance permission was necessary only to evict the 'tenant in possession' and as the said expression referred, according to the learned Judge, only to a tenant in actual possession or physical occupation of the disputed premises and did not include a tenant who had sub-let the whole of the premises in question and was thus at the most only in what may be called constructive possession, it was unnecessary for the plaintiff to take such permission in the present case. Mr. Chakravarti who appears for the appellant before me has vehemently criticised the view of the law, taken by the learned Subordinate Judge, as appearing above, and I am unable to say that his criticism is wholly without force.
5. Section 13 of the Calcutta Rent Ordinance 1946 clearly states that
'No suit or proceeding by a landlord against a tenant in possession of any premises for eviction of such tenant therefrom in which any of the grounds specified in Clause (d) of the proviso to Subsection (1) of Section 12 has been taken as a ground for such eviction shall be entertained by any Court unless the landlord has been permitted by the Controller by an order in writing under Sub-section (3) to institute such suit or proceeding and has produced before such Court proof that such permission has been granted.'
6. Section 12(1) (d) is in these terms:
'Where the premises are bona fide required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the premises are held, or where the landlord can show any cause which may be deemed satisfactory by the Court.'
7. If, therefore, the suit be one where the permission of the Rent Controller is necessary under the above section 13 of the Ordinance, the absence of such permission will vitiate the entire suit for ejectment and not merely the ground of bona fide requirement. The mere fact that that ground is not pressed at the hearing or that the suit may be decreed on other grounds would not alter the position or prevent dismissal of the claim for ejectment under the imperative provisions of the said section quoted above. The principle, underlying the decision in -- 'Prafulla Kumar Dutta v. Guiram Tat', : AIR1950Cal544 (A), equally applies to a case under the Calcutta Rent Ordinance so far as this point is concerned. In my opinion, the learned Judge was not right in laying aside that decision altogether merely because it was given under the earlier law, namely, the Calcutta House Rent Control Order of 1943 and in holding that, as the ground of bona fide requirement was not pressed before the Court, there was no bar to the granting of the decree for ejectment on account of unlawful or unauthorised sub-letting. That part of the judgment of the lower appellate Court cannot, therefore, be supported.
The other reason, given by the learned Subordinate Judge, namely, that the tenant in the present case having admittedly sub-let the whole of the premises cannot be regarded as a 'tenant in possession' within the meaning of Section 13 of the Ordinance and the suit, therefore, would be outside its mischief cannot, however, be so easily met. On the said question, much may be said on either side, and various aspects require to be closely examined before that question can be finally answered. In the view, however, which I am taking in this case, it is unnecessary to express any opinion on the merits of the said question and, accordingly, I leave it unanswered.
Granting that the expression 'tenant in possession in Section 13 of the Ordinance includes a tenant who is in possession only through sub-tenants, that is, a tenant who has wholly sub-let the premises and that, accordingly, permission from the Rent Controller was necessary in this case and without such permission the present suit for ejectment would not have been maintainable in law, such an objection is not, in the events which have happened in this case, open now to the appellant. When the matter came up to this Court on the previous occasion, the suit had been dismissed on this very ground by the two Courts below. But that decision was set aside by this Court and the case was sent down for re-hearing. The present objection which is plainly a plea in bar to the entertainment of the suit could and should have been taken before this Court on that earlier occasion in the second appeal in which that order of re-hearing was made, and, if accepted, it would have entailed a dismissal of the said second appeal and the remand would have been wholly unnecessary.
It was argued by Mr. Chakravarti that as the case was remanded for a fresh decision the defence was entitled to rely on this plea in bar under Section 13 of the Ordinance over again. I do not, however, read the remand order of this Court as leaving this question--this preliminary objection under Section 13 of the Ordinance--open between the parties. That being so, the plea, whatever its merits, must be held to have become barred by constructive res judicata and, however, unfortunate it may be for the appellant, it cannot be entertained now. On this ground I hold that the defence, based on Section 13, Calcutta Rent Ordinance, cannot succeed and the learned Subordinate Judge's decision on that point must be upheld though on a different ground.
8. In the above view of the matter, I hold that the decision of the lower Appellate Court is right and its decree ought to be affirmed subject to this that the appellant will have time till the end of April 1954 to vacate the suit premises and during this period the decree-holder will not be entitled to put his decree for ejectment into execution. The imposition of this condition is amply justified by the circumstances of the present case which disclose no immediate requirement of the suit premises by the respondent landlord, namely, Lila Mohan Singha Roy, whereas the appellant who is a professional man may be put to extreme hardship if he be immediately ousted from the said premises.
9. Subject to the above observations, this appeal is dismissed and, as to costs, there will be no order in this Court. The order for costs made by the lower appellate Court will, however, stand.
10. Leave to appeal under Clause 15 of the Letters Patent is asked for and is refused.