Rampuria & Ors Vs. Vega Trading Corporation & Ors  INSC 220 (1 August 1989)
L.M. (J) Sharma, L.M. (J) Kania, M.H.
1989 AIR 1819 1989 SCR (3) 632 1989 SCC (3) 552 JT 1989 (3) 301 1989 SCALE
INFO : RF 1991 SC2053 (16)
Bengal Premises Tenancy Act, 1956: ss. 13, 14 & 16-Tentant--Eviction of on
ground of sub-letting without written consent-General authority granted in
lease deed--Held, not sufficient.
13(1)(a) of the West Bengal Premises Tenancy Act, 1956 provides for recovery of
possession where the tenant or any person residing in the premises let to the
tenant without the previous consent in writing of the land- lord transfers,
assigns or subsets in whole or in part the premises held by him. Section 14
forbids the tenant from sub-letting the premises without the previous consent
in writing of the landlord. Sub-section (1) of s. 16 requires the tenant and
every sub-tenant to whom the premises are sub.let to give notice to the landlord
of the creation of the sub-tenancy within one month from the date of such sub-
letting and also to notify the termination of such sub- tenancy within one
month of such termination. Sub-section (2) prescribes such a notice in respect
of sub-tenancies created with or without the consent of the landlord before the
commencement of the Act, within the time specified therein. Where there is no
such consent in writing from the landlord, sub-section (3) provides for
cessation of tenant's interest in the portion sub-let and the sub-tenant
becoming a tenant directly under the landlord in certain circum- stances.
6 of the lease-deed creating tenancy for a period of 'three years from 1st May
1948 permitted the respondent- tenant to sub.let any portion of the demised
premises which was left unused or surplus. After expiry of the lease period in
1951, the said tenant continued in possession, and by holding over became a
month to month tenant. It had, however, created certain sub-tenancies within
the period covered by the lease and before the Act came into force. A suit for
its eviction brought by the landlord in 1960 was dismissed by the trial court.
landlord filed a fresh suit in 1972 on the Found that the tenant had created
sub. tenancies in the premises after the dismissal of the earlier suit. The
tenant advanced the plea of res judicata and con- 632 633 tended that it was
and is entitled to grant sub-tenancies under cl. 6 of the lease-deed which
continues to bind the parties. Rejecting the case of res judicata, the trial
court held that a number of sub-tenants who were in possession of the premises
at the time of the earlier suit had been sub- stituted later by another set of
sub-tenants after the coming into force of the Act, and that the entire premises
was let out to sub-tenants which was not consistent with the terms of the
permission as mentioned in cl. 6. Allowing the appeal, the High Court, however,
held that the suit was barred by the rule of res judicata.
this appeal by special leave, it was contended for the appellants that since a
large portion of the disputed property was sublet to fresh sub-tenants after
the institution of the earlier suit of 1960 there was no scope for applying the
doctrine of res judicata, and that the consent contemplated by the 1956 Act has
to be specific in regard to each sublease, which requirement was not satisfied
by the general permission granted by cl. 6 of the lease-deed.
1. In the earlier suit all the sub-lessees were inducted during the period the
lease was operative, i.e., much before the Tenancy Act was passed. The question
of violation of the provisions of the said Act, therefore, did not arise there.
The earlier judgment cannot thus operate by way of res judicata. [637A]
provisions of s. 16 of the Act clearly indicate that permission to the tenant
to sub-let in general terms cannot be deemed to be consent for the purposes of ss.
13 and 14. [637F] 2.2. The Act contemplates that while one sub-tenant may be
evicted another may continue in the premises as a tenant directly under the
landlord, depending on the circumstances.
previous consent in writing of the landlord with respect to each sub-letting
separately is essential. Since in the instant case consent of the appellant
landlord was not obtained specifically for each of the sub-tenancies, the
respondent-tenant must be held to have violated section 14.
appellants are thus entitled to succeed under s. 13(1)(a). [638F, H] M/s
Shalimar Tar Products Ltd. v. H.C. Sharma & Ors.,  1 SCC 70, referred
was not the case of the respondent that any of the sub- 634 tenants had sent
any notice to the landlord as prescribed by the Act. Therefore, the eviction
suit cannot fail on the ground of non-impleading of the sub-tenants. However,
the sub-tenants cannot be bound by that finding in the suit.
will be entitled to be heard if and when the landlord seeks their eviction.
APPELLATE JURISDICTION: Civil Appeal No. 331 of 1978.
the Judgment and Order dated 3.9.1976 of the Cal- cutta High Court in Appeal from Original decree No. 407 of
A.K. Verma and S. Suikumaran for the Appellants.
Chandra Ray and H.K. Puri for the Respondents.
Judgment of the Court was delivered by SHARMA, J. This appeal by special leave
arises out of a suit filed by the appellants for eviction of the
respondent-tenant (hereinafter referred to as the Corpora- tion) from certain
premises on Lalbazar
Street, Calcutta, on the ground of sub-letting. The City Civil Court, Calcutta, decreed the suit, but on appeal by the tenant Corporation,
the Calcutta High Court reversed the judgment and dismissed the suit.
Admittedly the defendant-Corporation was inducted as a tenant under a
registered deed of lease dated 23.4.1948 for a period of three years from
1.5.1948. After expiry of the period in 1951, the Corporation continued in
possession, and by holding over became a month to month tenant. The premises
consists of a big room, described as room No. 3, along with a small room for
the use of a Darwan (porter), staying there as guard. The big room was, from
time to time, leased out by the tenant-Corporation in portions to different
subtenants and in 1960 the landlord brought a suit, registered as Ejectment
Suit No. 978 of 1960, for the eviction of the Corporation on several grounds
including sub- letting. In the meantime West Bengal Premises Tenancy Act, 1956
had been enacted, and the provisions of S. 13(1)(a) which are in the following
terms, were relied on by the parties:
13. Protection of tenant against evic- tion. (1) Notwithstanding anything to
the contrary in any other law, no 635 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 except on one or more of the following grounds, namely:
where the tenant or any person residing in the premises let to the tenant
without the previous consent in writing of the landlord transfers, assigns or
sub-lets in whole or in part the premises held by him ....; ...."
tenant-Corporation contended that it was permit- ted to create sub-leases under
clause 6 of the lease docu- ment which is quoted below and it cannot,
therefore, be accused of sub-letting without the consent of the landlords:
the lessees shall use the demised prem- ises as office in connection with their
busi- ness and shall be entitled to sublet the portion which may not be used by
them." It was asserted on behalf of the tenant-Corporation that all the subtenants
had been inducted in the premises in question in pursuance of the aforesaid
permission and before the expiry of the lease period in 1951. The City Civil Court decided the issue ,n favour of the
tenant-Corporation on the ground that all the sub-tenancies had been created
within the period covered by the lease deed and before coming in force of the
West Bengal Premises Tenancy Act, 1956. The suit was held to be not
maintainable also on the ground that a legally valid notice terminating the
tenancy had not been served on the tenant. The suit was thus dismissed on 30.8.
1962 by the judgment Ext. B(2).
present suit was filed in 1972 alleging that the tenant Corporation has,
without the consent of the land- lords, created fresh sub-tenancies in the
premises in favour of other sub-tenants after the dismissal of the earlier
suit. The case is that after the original lease exhausted itself by efflux of
time, and otherwise also came to an end by the landlords' notice terminating
it, the general permis- sion under clause 6 of the lease deed, mentioned above,
also disappeared. Alternatively the appellants have contended that even
assuming that the term in clause 6 continues to bind the parties, it does not authorise
the respondent- Corporation to sub-let the entire premises. The dominant
purpose of the lease was actual user by the tenant itself for the purpose of
running its office and clause 6 permitted it to sub-let 636 only such portion
which was left unused as surplus. The appellants have also alleged default of
payment of rent, but the plea has been rejected by the trial court and has not
been pressed before us.
suit was defended by the respondent-Corporation contending that as held in the
earlier suit the defendant was and is entitled to grant sub-tenancies, and the
plain- tiffs' case is fit to be dismissed. Reliance was placed, besides the
plea of res judicata, on the language of clause 6 which according to the
defendant continues to bind the parties. The City Civil Court rejected the
defendant's case of res judicata and agreeing with the plaintiffs on the
question of sub-letting, decreed the suit. It held that a number of sub-tenants
who were in possession of the premises at the time of the earlier suit have
been substituted later by another set of sub-tenants after the coming into
force of the Act. The learned Judge also agreed with the plaintiffs that the
entire premises was let out to sub-tenants which was not consistent with the
terms of the permission as mentioned in clause 6. The Court, holding that the
tenant had violated the provisions of the 1956 Act, passed a decree for
eviction in favour of the plaintiffs. The tenant-Corpo- ration appealed before
the Calcutta High Court.
High Court disagreed with the City Civil Court on the interpretation of clause
6 of the lease deed, and held that by reason of the judgment in the earlier
suit, the present suit was barred by the rule of res judicata. The appeal was,
accordingly, allowed and the suit dismissed.
B. Sen, the learned counsel appearing in support of the appeal contended that
since large portion of the disputed property was sub-let to fresh sub-tenants
after the institution of the earlier suit of 1960, there was no scope for
applying the doctrine of res judicata to the present litigation. He inter alia
argued that having regard to the change in the law brought about by the 1956
Act and special- ly in view of the provisions of ss. 13, 14 and 16, the
appellants are entitled to a decree.
factual position is that there are 16 sub-ten- ants as mentioned in Annexure B
to the plaint who are occu- pying the disputed room now. Out of them 5 had been
inducted before the 1960 suit and were parties thereto (as was right- ly
pointed out by the respondent Corporation in its applica- tion dated 17.12.1973
for amendment of the written state- ment). The other 11 sub-lessees were let in
after the earli- er suit, when the 1956 Act was in force. The question is
whether the creation of these sub-tenancies violated the provisions of the Act.
the earlier suit all the sub-lesses were inducted during the period the lease
was operative, i.e., much before the present Act was passed. The question of
violation of the provisions of the present Act, therefore, did not arise there.
It follows that so far this issue is concerned the earlier judgment can not
operate by way of res judicata.
main question which remains to be decided is whether in the circumstances, the
plaintiffs' case, based on alleged violation of the Act can be accepted. S. 14
enjoins that after the commencement of the Act no tenant shall, without the
previous consent in writing of the landlord, sub-let the whole or any part of
the premises held by him as a tenant; or transfer or assign his rights in the
tenancy or in any part thereof. According to Mr. Tapas Ray, the learned counsel
of the respondent-Corporation, clause 6 of the lease deed, which continued to
bind the parties by reason of the Corporation holding over, must be treated to
contain the necessary consent of the appellants. As has been seen earli- er,
this clause granted a general permission to the tenant to induct a sub-tenant.
Can such a provision in general terms satisfy the requirements of the Act? Or,
as has been suggested on behalf of the appellant, the consent contem- plated by
the Act has to be specific in regard to each sub- lease?
13 protects a tenant from eviction except on the grounds, enumerated therein
and one of the grounds in clause (a) of sub-s. (1) is in the following terms:
where the tenant or any person residing in the premises let to the tenant
without the previous consent in writing of the landlord transfers, assigns or
sub-lets in whole or in part the premises held by him;" The language of
Ss. 13 and 14 by itself does not resolve the issue. However, the provisions of
S. 16 which is quoted below clearly indicate that permission to the tenant to
sub-let in general terms can not be deemed to be consent for the purposes of
Ss. 13 and 14:
16 Creation and termination of sub-tenan- cies to be notified--(1) Where after
the commencement of this Act, any premises are sub-let either in whole or in
part by the tenant with the previous consent in writing of the landlord, the
tenant and every sub-tenant to whom the premises are sub-let shall give notice
to the landlord in the prescribed manner of the creation of the sub-tenancy
within one 638 month from the date of such sub-letting and shall in the
prescribed manner notify the termination of such subtenancy within one month of
such termination- (2) Where before the commencement of this Act, the tenant
with or without the consent of the landlord, has sub-let 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 sub-letting in the
prescribed manner (within six months) of the commencement of this Act and shall
in the prescribed manner notify the termination of such sub-tenancy within one
month of such termination- (3) Where in any case mentioned in sub-section (2)
there is no consent in writing of the landlord and the landlord denies that he
gave oral consent, the Controller shall, on an application made to him in this
behalf either by the landlord or the sub-tenant within two months of the date of
the receipt of the notice of sub-letting by the landlord or the issue of the
notice by the sub-tenant, as the case may be, by order declare that the ten-
ant's interest in so much of the premises as has been sub-let shall cease and
that the subtenant shall become a tenant directly under the landlord from the
date of the order. The Controller shall also fix the rents payable by the
tenant and such sub-tenant to the landlord from the date of the order. Rents so
fixed shall be deemed to be fair rent for purposes of this Act." It is
plain from the above that the Act contemplates that while one sub-tenant may be
evicted another may continue in the premises as a tenant directly under him,
depending on the circumstances. We are, therefore, of the view that previous
consent in writing of the landlord with respect to each sub-letting separately
is essential and a general authority to the tenant in this regard will not be suffi-
cient in law. Our view is supported by the observations in M/s Shalimar Tar
Products Ltd. v. H.C. Sharma and Others,  1 SCC 70; a case arising under
the Delhi Rent Control Act. An examination of Ss. 14(1)(b), 16, 17 and 18 of
the Delhi Rent Control Act would show that the two Acts (West Bengal Act and
the Delhi Act) are similar so far the present question is concerned. In the
present case, since it is not suggested on behalf of the respondent that
consent of the appellants was obtained specifically for each of the sub-
tenancies, the respondent-Corporation 639 must be held to have violated S. 14.
The appellants have thus, established the ground mentioned in S. 13(1)(a) and
are entitled to succeed.
None of the sub-tenants has been impleaded in the present suit, but as it is
not the case of the tenant-Corpo- ration that any of them had sent any notice
to the plain- tiffs, the suit, so far the present respondent is concerned, can
not fail on the ground of their non-impleading. However, the sub-tenants can
not be bound by the finding in this suit that they have failed to serve a
notice as prescribed by the Act on the plaintiffs and will be entitled to be
heard if and when the plaintiffs seek their eviction. So far the sub-tenants
who had been inducted in the premises earlier and were parties to the 1960 suit
may have still a better claim on the strength of the decree in their favour and
may insist that they would be entitled to continue in possession as tenants
directly under the plaintiffs.
For the reasons mentioned above, the decision of the High Court is set aside
and the decree of eviction passed by the City Civil Court against the
respondent-Corporation is restored. The appeal is accordingly allowed with