1. This is an appeal from a judgment & decree of Mitter J. decreeing the pltf.'s suit for delivery of possession of certain premises & recovery of Rs. 900 as arrears of rent & mesne profits.
2. The pltfs. who are the respondents before us were the trustees of a deed of trust created by the late Sir Binod Mitter in respect of certain premises No. 8/1/3 London Street, Calcutta. These premises had been let by the trustees to deft. 1 in the suit Salim Ezra Darwish. The latter was a monthly tenant & the conditions of the said tenancy were, (1) that the monthly rent was to be paid in advance on or before the 2nd of every month for the current month ; & (2) that the tenant was allowed to sublet the premises for one year from July 1949. There was a provision that in case the rent was in arrear for any month the tenant would be liable to be ejected along with the sub-tenants, if any.
3. Defendant 1 Darwish sublet the said premises to deft. 2, B. K. Ghose, at a rental of Rs. 300 per month from July 1949. Unfortunately, there is no material on the, record from which we can gather when the monthly rent was payable by the sub-tenant to the tenant.
4. The pltfs. alleged that deft. 1 had failed to pay the rent for three consecutive months, namely, for November & December 1949 & January 1950 & by the terms of the tenancy agreement between them, deft. 1 was in default of payment of rent for three consecutive months on January 3, 1950 as the rent for each month was payable on the 2nd of that month. The pltfs. contended that by reason of Section 12 (3), Rent Control Act, 1948, the tenancy of Darwish was ipso facto determined on January 3, 1950. The pltfs. further contended that on January 3, 1950 the sub-tenant's tenancy had also ipso facto determined, because the sub-tenant had defaulted in the payment of rent to Darwish for three consecutive months. That being so, the pltfs. contended that deft. 2, the sub-tenant, was not entitled to the protection of Section 11 (3) of the Rent Control Act & never became a statutory tenant. That being so it was said that the pltfs. were entitled to eject deft. 2.
5. The matter came before the learned Judge on an appln. under Ch. 13-A of the Original Side Rules. Defendant 2 who was the only deft. to take any part in the proceedings, filed an affidavit & in that affidavit it was denied that the sub-tenant had defaulted in the payment of rent. It was said that the sub-tenant deposited with Darwish a sum of Rs. 2,800 for meeting the rent as it became due & if such a payment had been made & could be applied to the payment of rent as it fell due then it would be clear that the deft. 2 was not a defaulter when the interest of Darwish ipso facto terminated on January 3, 1950.
6. The learned Judge thought that this statement in the affidavit that a sum of Rs. 2,800 had been paid was palpably false & it had only been sworn to in order to make it possible some triable issue. In his view this defence was not a bona fide defence & that really it was an abuse of the process of the Ct. The learned Judge eventually held that there was no defence whatsoever to the suit and he accordingly made a decree in favour of the pltfs.
7. In common fairness to the learned Judge. I must observe that the case in the Ct. below concerned one issue only, namely, whether or not this sum of Rs. 2,800 was paid as alleged by deft. 2 to Darwish, deft 11. It was never argued before the learned Judge that even if the money had not been paid, nevertheless the deft. 2 was not a defaulter when the interest of Darwish terminated.
8. It seems to me quite clear that there is no substance in this defence that Rs. 2800 was deposited with Darwish to meet the rent of these premises as it fell due from deft. 2 & if the matter had rested there I should not have been inclined to interfere with the judgment of the learned Judge.
9. Mr. Burman however on behalf of the applt. has contended that on January 3, 1950 when Darwish's interest ipso facto terminated the sub-tenancy was lawfully subsisting & therefore the sub-tenant was entitled to the benefit of Section 11 (3) of the Rent Control Act. Section 11 (3) so far as it is material is in these terms :
'Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of the grounds specified in Clause (f) of the proviso to Sub-section (1), be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord on the terms and conditions on which such person would have held under the tenant if the interest of the tenant had not been so determined.'
10. It is clear that before a sub-tenant can claim the benefit of this sub-section it must be established that the premises were lawfully sublet to such tenant when the interest of the tenant who sublet the premises was determined. If at the date when the tenant's interest was ipso facto determined, the sub-tenant's interest had also been determined then there would be no lawful sub-tenancy in existence when the tenancy was determined and the subtenant could therefore not claim the benefit of Section 11 (3) of the Act.
11. Mr. Burman has urged that assuming the sub-tenant did not pay the rent for November, December, & January, nevertheless he was not a defaulter on January 2, 1950 when the interest of the tenant was ipso facto determined. He has urged that there was no material upon which a Ct. could hold what were the terms of the arrangement between the tenant & the sub-tenant for the payment of rent & that being so, he has contended that Section 12 (1) (a) would apply and the rent of each month would not be payable until the 15th day of the following month. He urged therefore that there could be no default in this case until 15-2-1950 which would be long after the date upon which the tenant's interest had determined by reason of Section 12 (3) of the Act.
12. It appears to me that Section 12 (1) (a), Rent Control Act, has no application to the sub-tenancy agreement. Section 12 (1) (a) of the Act governs payment of rent by a statutory tenant in respect of the statutory tenancy. But even so I cannot hold upon the materials that there was a default by the tenant until February 1 at latest. If there was no agreement as to the payment of rent then it appears to me that the January rent would not be due & payable until February 1, 1950 & that would be nearly a month after the interest of the tenant had determined.
13. Mr. Burman's argument was that if he was not a defaulter, as he contends he was not on January 2, 1950, he became on that date a statutory tenant of the pltfs. by reason of Section 11(3) of the Act & as a statutory tenant he was not a defaulter when this suit was instituted. The suit was in fact instituted on 17-2-1950. Mr. Burman's contention is that he could not be a defaulter in respect of this statutory tenancy until the expiration of the month of March.
14. Mr. S. C. Mitter has contended that the applt. become a defaulter & his interest was terminated on the same day as that on which the tenant became a defaulter & his interest was terminated. It was contended that it is clear from the facts of the case that the terms as to the payment of rent which existed in the contract between the pltfs. & Darwish also existed in the contract between Darwish & deft. 2, the present applt. But unfortunately the affidavits of Dwijendra Chandra Ghose & the annexures do not establish what term there was regarding payments in the tenancy agreement between Darwish & the applt. Mr. Mitter asked us to admit in evidence a letter alleged to be signed by the applt. in which the terms of the sub-tenancy agreement are set out & it is said that this letter makes it clear that deft. 2 had to pay his rent to Darwish in the same manner as Darwish had to pay the rent to the pltfs. If that were so, then the applt. would become a defaulter at the same time as Darwish became a defaulter & therefore it might well be said that the applt. could not claim the benefit of Section 11 (3) of the Act. But on the materials before us it is impossible to hold that the applt. was bound to pay his rent in the same manner as Darwish was & unless we could hold that upon the materials before us we cannot say that there is not a triable issue in this case.
15. I think it is quite clear that we cannot admit in evidence during the hearing of this appeal the letter tendered by Mr. Mitter. The terms of O. 41, R. 27, Civil P. C. & the recent decisions of their Lordships of the P. C. make it quite clear that we should not receive this document in evidence unless we find it impossible to decide this case without it. The need for additional evidence must be the need of the Court and additional evidence cannot be admitted merely on the ground that a document is necessary to fill up a gap in the case of one of the parties. Finding as I do that there is no material on the record as it stands upon which we could hold that the sub-tenancy had terminated, when the tenancy terminated, we cannot say that there is not in this case an issue fit to be tried.
16. In the result therefore this appeal must be allowed, the judgment & decree of the learned Judge set aside & the case sent back to be heard & decided in accordance with law. The respondents wish to amend their plaint to plead the terms of the contracts with greater particularity & amendments, if any, must be made in the plaint before 15-4-1950. The written statement must be filed on or before April 28 and discovery must be completed by May 5, 1950. The suit will be listed for disposal before a single Judge sitting on the Original Side, other than Mitter J., on May 15, 1950. The case should be placed first in the learned Judge's list on that day subject to any part heard case. The costs of this appeal will be costs in the suit.
17. I agree.