Indra Kumar Karnani Vs. Atul Chandra
Patitundi & ANR [1965] INSC 63 (10 March 1965)
10/03/1965 RAMASWAMI, V.
RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
CITATION: 1966 AIR 186 1965 SCR (3) 329
CITATOR INFO:
E 1968 SC 471 (13)
ACT:
West Bengal Premises Rent Control (Temporary
Provisions) Act, 1950 (West Bengal Act 17 of 1050) ss. 12(1)(c),
13--Sub-letting-Permission, when necessary--Rights of sub- tenants in violation
of agreement--If saved.
HEADNOTE:
Respondent No. 2 was a monthly tenant of 'the
appellant on a condition that he would not sublet the premises of any portion
thereof Under the West Bengal Premises Rent Control (Temporary Provisions) Act,
1948 the appellant filed a suit against respondent No. 2 for his eviction on
the ground that the tenancy had been determined on account of default in
payment of rent. While the suit was pending, the West Bengal Premises Rent
Control (Temporary Provisions) Act, 1950 came into force. The suit was decreed
and the appellant took out execution proceedings. The suit was resisted by
respondent No. 1 who alleged that he had taken subtenancy from respondent No.
2. Respondent No. 1 also filed a suit impleading the appellant and respondent
No. 2 and prayed for a declaration that on the termination of the tenancy of
respondent No. 2, respondent No. 1 became a direct tenant of the appellant
under s. 13(2) of the 1950 Act and he was not liable to be evicted in the
execution case. The suit was decreed by the trial court, which was affirmed by
the appellate courts. In appeal by special leave:
HELD: The appeal must be dismissed. [334F] In
the case of sub-letting by a tenant of the first degree no consent of the
landlord to sub-letting is required as a condition precedent for acquisition by
the sub-lessee of the tenant's rights, but in the case of sub-letting by a
tenant inferior to the tenant of the first degree the ,consent of the landlord
and also of the tenant of the superior degree above him to the sub-letting is
necessary if the sub-lessee is to acquire the rights of the tenant contemplated
by s. 13(2). [332 H] The clause "and the sub-lease is binding on the
landlord of such last mentioned tenant" in s. 13(2) does not govern both
classes of tenancies, namely, sub-tenancies created by "tenant of first
degree" and also by "a tenant inferior to the tenant of the first
degree" as defined in s. 13(1). [333 B] Is not correct to say that the
rights mentioned in s, 13(2) are conferred on the sub-lessee only in a case
where sub-letting is not in violation of the agreement of lease.
The right of sub-tenant even in a case in
which the landlord has brought a suit for eviction against the tenant under s.
12(1)(c) are saved and the rights and
obligations of sub- tenants, would be governed by the provisions of.s. 13.
[334A] In enacting s. 13 of the Act the
legislature has deliberately enlarged the class of sub-tenants to be protected
from eviction by the landlords and the language of the section dealing with the
sublessees has been deliberately changed and proper effect and interpretation
must be given to the language of the new section. [334 E] 330
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 125 of 1963.
Appeal by special leave from the judgment and
decree dated June 2, 1959 of the Calcutta High Court in Appeal from Appellate
Decree No. 536 of 1964.
S. Murthy and B.P. Maheshwari, for the
appellant. M.C.
Chakraborthy and R. Gopalakrishnan, for
respondent No. 1.
The Judgment of the Court was delivered by
Ramaswami, J. The sole question for determination in this appeal is whether
respondent No. 2--Atul Chandra Patitundi is protected from being evicted by the
landlord from the premises No. 90A, Harish Mukerjee Road situated in
Bhawanipur, District 24-Parganas in view of the provisions enacted in s. 13(2)
of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West
Bengal Act XVII of 1950), hereinafter called the 1950 Act.
Some time before 1948, respondent No. 2 was
inducted as a monthly tenant under Rai Sahib Chartdan Mal Inder Kumar, the
predecessor-in-interest of the appellant. One of the conditions of the lease
was that the tenant will not sub-let the premises or any portion thereof. As
respondent No. 2 defaulted in the payment of rent the appellant made an
application under s. 14 of the Calcutta Rent Ordinance, 1946 for permission to
sue him for eviction. The application was granted by the Second Additional Rent
Controller on September 10, 1948. On December 1, 1948, the West Bengal Premises
Rent Control (Temporary Provisions) Act, 1948 (West Bengal Act XXXVIII of
1948). hereinafter called the 1948 Act, came into force. On September 15, 1949
the appellant flied a Title Suit No. 171 of 1949 in the Court of the 1 st
Subordinate Judge, Alipore, 24-Parganas against respondent No.2 for his
eviction on the ground that the tenancy had been determined on account of
default in payment of rent.
While the suit was pending, the 1950 Act came
into force on March 31, 950. The suit was eventually decreed in favour of the
appellant on February 25, 1951. The appellant took out execution proceedings
being Title Execution Case No. 39 of 1951 of the Court of the First Sub-Judge.
Alipore. The suit was resisted by respondent No. 1 who alleged that he had
taken sub-tenancy from respondent No. 2. Respondent No. 1 also filed Title Suit
No. 578 of 1951 in the Court of 4th Munsif at Alipore impleading the appellant
and respondent No. 1 and praying for a declaration that on the termination of
the tenancy of respondent No. 2, respondent No. 1 became a direct tenant of the
appellant under s. 13(2) of the 1950 Act and that he was not liable to be
evicted in the execution case. The suit was decreed in the Court of the
Subordinate Judge and the decree was affirmed by the District Judge of
24-Parganas in Title Appeal No. 157 of 1953. A Second Appeal was also dismissed
by the Calcutta High Court on June 2, 1959.
331 On behalf of the appellant the argument
put forward was that the sub-lease granted by respondent No. 1 in favour of
respondent No. 2 was contrary to the agreement of lease and not binding upon
the appellant. It was, therefore, submitted that the sub-lessee did not acquire
the status of a tenant under s. 13(2) of the 1950 Act and the sub-lessee could
not be deemed to be holding directly under the appellant within the meaning of
that sub-section. The question at issue depends upon the proper interpretation
of s. 13(2) of the 1950 Act which states:
"13. (2) Where any premises or any part
thereof have been or has been sub-let by 'a tenant of the first degree' or by
'a tenant inferior to a tenant of the first degree', as defined in explanation
to sub-section (1), and the sublease is binding on the landlord of such last
mentioned tenant, if the tenancy of such tenant in either case is lawfully
determined otherwise than by virtue of a decree in a suit obtained by the
landlord by reason of any of the grounds specified in clause (h) of the proviso
to subsection (1) of section 12, the sub-lessee shall be deemed to be a tenant
in respect of such premises or part, as the ease may be, holding directly under
the landlord of the tenant whose tenancy has been determined, on terms and
conditions on which the sub-lessee would have held under the tenant if the
tenancy of the latter had not been so determined:
Provided that it shall be competent for the
landlord, or any person deemed under this section to be a tenant holding
directly under the landlord, to make an application to the Controller for
fixing rent of the premises or part thereof in respect of which such person is
so deemed to be a tenant and until the rent is fixed by the Controller on such
application such person shall be liable to pay to the landlord the same rent as
was payable by him in respect of the premises or part thereof, as the ease may
be, to the tenant before the tenancy of the tenant therein had been determined.
The Controller in fixing the rent shall not determine such rent at the rate
which is beyond the limit fixed by paragraph (4) of Schedule A. The rent so
fixed shall be deemed to be the standard rent fixed under section 9".
Section 13(1)is also relevant in this
connection and it states:
"13. (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 1st 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.
332 Explanation--In this subsection- (a) 'a
tenant of the first degree' means a tenant who does not hold under any other
tenant;
(b) 'a 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".
It is manifest that s. 13(1) makes a
distinction between the two classes of sub-tenancies, namely, (1) sub-tenancy
created by a tenant of the first degree, and (2) sub-tenancy created by "a
tenant inferior to the tenant of the first degree" by which is meant a
tenant holding immediately or mediately under a tenant of the first degree. So
far as the second class of sub-tenancy is concerned, the sub-section enacts
that the sub-letting will not be binding upon the landlord or on the tenant of
the superior degree unless each of them has consented to the transaction of
sub-lease. There is no express provision in s. 13(1) that a sub-lease of the
1st class requires previous consent of the landlord or that in the absence of
such consent the sub-lease shall not be binding upon the non consenting
landlord. Section 13(2) refers to both the classes of sub-leases and states
that if the sub-lease has been made by a tenant of the first degree, the
sub-lessee shall be deemed to be a tenant in respect of the premises demised to
him if the tenancy of such tenant is lawfully determined under the provisions
of the Act otherwise than by virtue of a decree in a suit obtained by the
landlord by reason of any of the grounds specified in el. (h) of the proviso to
sub-section (1) of section 12. In the case of second class of sub-leases, i.e.,
sub-leases created by a tenant inferior to the, tenant of the 1st degree also
the sub-lessee will acquire the status of a tenant as mentioned in the statute
but in this class of sub- leases the rights of the tenant are conferred on the
sub- lessee only if the sub-lease is binding upon the landlord.
In enacting s. 13(1) and (2) of the 1950 Act
the legislature has deliberately made a distinction between the two classes of
sub-tenancies and provided that in the case of sub-lease of the first class,
namely, sub-leases created by a tenant of the first degree, the sub-lessee will
acquire the status of the tenant in respect of the premises demised, though the
sub-lease is not binding upon the landlord according to the agreement of lease.
The legislature has further provided that in the case of sub-lease of the
second class the sub- lessee will acquire the status of a tenant of the
premises only if the sub-lease is binding upon the "landlord" as
defined in s. 13(1). It follows that in the case of sub- letting by a tenant of
the first degree no consent of the landlord to sub-letting is required as a
condition precedent for acquisition by the sub-lessee of the tenant's right but
in the case of sub-letting by a tenant inferior to the tenant of the first
degree the consent of the landlord and 333 also of the tenant of the superior
degree above him to the subletting is necessary if the sub-lessee is to acquire
the rights of the tenant contemplated by s. 13(2). It was argued on behalf of
the appellant that the clause "and the sub- lease is binding on the
landlord of such last mentioned tenant" in s. 13(2)governs both classes of
tenancies, namely, sub-tenancies created by "tenant of the first
degree" and also by "a tenant inferior to the tenant of the first
degree" as defined in s. 13(1). We do not consider that there is any
justification for this argument. Having regard to the grammatical structure and
Context of the clause it is obvious that it imposes a qualification only upon
sub-tenancies of the second class. It was also submitted on behalf of the
appellant that if a sub-lease is granted by the tenant of the first degree
against the terms of the contract of lease the landlord is entitled under s. 12(1)(c)
of the 1950 Act to bring a suit for eviction of the tenant and that in such a
suit the tenant and the sub- lessees are both liable to be evicted from the
premises in question. It was submitted, therefore, that the rights mentioned in
s. 13(2) are conferred upon the sub-lessee only in a case where sub-letting is
not in violation of the agreement for lease. In our opinion, there is no
substance in this argument. Section 12(1)(c) states:
"12. (1) Notwithstanding anything to the
contrary in any other Act or law, no order or decree for the recovery of
possession of any premises shall be made by any court in favour of the landlord
against a tenant, including a tenant whose lease has expired:
Provided that nothing in the sub- section
shall apply to any suit for decree for such recovery of possession,-- (c)
against a tenant who has sub-let the whole or a major portion of the premises
for more than seven consecutive months:
Provided that if a tenant who has sub-let
major portion of the premises agree to possess as a tenant the portion of the
premises not sub-let on payment of rent fixed by the Court, the Court shall
pass a decree for ejectment from only a portion of the premises sub-let and fix
proportionately fair rent for the portion kept in possession of such tenant,
which portion shall thenceforth constitute premises under clause (8) of section
2 and the rent so fixed shall be deemed standard rent fixed under section 9,
and the rights and' obligations of the sub-tenants of the portion from which
the tenant is ejected shall be the same as of sub-tenants under the provision
of section 13;".
It is manifest that s. 12(1)(c) saves the
right of sub- tenants even in a case in which the landlord has brought a suit
for eviction against 334 the tenant under s. 12(1)(c) and the rights and
obligations of subtenants would be governed by the provisions of s. 13.
Counsel on behalf of the appellant also
referred to the provisions of s. 11(3) of the 1948 Act which states:
"11.(3) 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:
It was pointed out that rights are conferred
by the statute only upon sub-lessees to whom the premises have been
"lawfully" sublet by a tenant. It was contended that though the 1948
Act was repealed and substituted by the 1950 Act, the provisions of s. 13(2) of
the latter Act have to be construed in the context of the language of s. 11(31)
of the 1948 Act. We are unable to accept this argument as correct.
It is manifest that in enacting s. 13 of 1950
Act the legislature has deliberately enlarged the class of sub- tenants to be
protected from eviction by the landlords and the language of the section
dealing with the sub-lessees has been deliberately changed and proper effect
and interpretation must be given to the language of the new section.
For the reasons expressed, we hold that the
suit of respondent No. 1 has been rightly decreed and this appeal must be
dismissed with costs.
Appeal dismissed.
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