Judgement

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.

2. Sometime before 1948, respondent No. 2 was inducted as a monthly tenant under Rai Sahib Chandan 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 filed a Title Suit No. 171 of 1949 in the Court of the 1st 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 1959 Act came into force on March 1, 1950. The suit was eventually decree 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. 2 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.

3. On behalf of the appellant the argument put forward was that the sub-lease granted by respondent No. 2 in favour of respondent No. 1 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 1959 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 1959 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-s. (1), and the sub-lease 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 Cl. (h) of the proviso to sub-s. (1) of S. 12, the sub-lessee shall be deemed to be a tenant in respect of such premises or part, as the case 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