Judgement

WANCHOO, J. : This is an appeal by special leave against the judgment of the High Court of Calcutta. The appellant is the owner of premises bearing No. P-16, Bentinck Street, Calcutta. It had let out a suit on the second floor of the premises on a monthly rental of Rs. 66 to Gee Tsing Po. The exact date when the suit was let to Po is not on the record but it was sometime before June 1954. In June 1954, Po sublet the entire suite to respondent No. 1, Messrs. Serajuddin and Company, which will hereafter be referred to as the respondent. In July, 1954, the appellant gave notice to Po terminating his tenancy with the expiry of August 1954. In September, 1954, the appellant filed a suit against Po praying for his ejectment on certain grounds under the West Bengal Premises Rent Control (Temporary Provisions) Act, No. XVII of 1950, which was then in force. That suit was still pending when the West Bengal Premises Tenancy Act, No. XII of 1956 (hereinafter referred to as the Act) came into force from March 31, 1956. Section 16 (3) of the Act gave certain rights to subtenants. As the appeal turns on the interpretation of that provision, it is necessary to set it out here :

"16(1) * * *

2. Where before the commencement of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give notice to the landlord of such sub-letting in the prescribed manner within six months of the commencement of the 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 consents, 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 tenant s interest in so much of the premises as has been sub-let shall cease and that the sub-tenant 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."

2. The respondent took action under S. 16(3) as apparently the subletting to him by Po was not with the consent of the landlord, and made an application thereunder to the Controller on June 4, 1956 and prayed that the Controller should declare that the interest of the tenant had ceased and respondent had become the tenant directly under the landlord in respect of the suite in question. It was also prayed that fair rent of the premises should be fixed at Rs. 66 per mensem.

3. The application was opposed on behalf of the appellant and two main points were urged in that connection, namely,- (i) The tenancy of Po had been lawfully terminated at the end of August 1954 and the suit for his ejectment was pending in the Small Cause Court and therefore the respondent could not take advantage of the Act in 1956, for it never became a subtenant in law before the act was passed; and (ii) the respondent was not in fact the tenant of Po from before March 31, 1956.

4. The matter came up before the Controller on August 9, 1956. The Controller accepted the respondent s case that it had become the sub-tenant of Po in fact from June 9, 1954. The Controller further held that in view of this fact, the respondent became a sub-tenant under the appellant in law, for in any case, the tenancy of Po had not been determined till August 1954 even on the case put forward by the appellant. He therefore made the following order :

"The applicant (i.e. Serajuddin & Co.) is therefore entitled to be declared to be a direct ten