A sub-tenant's right under Section 13 (2) of the West Bengal Premises Rent Control Act, 1950, cannot be enforced by an application in a proceeding for possession. The only remedy is a regular civil suit. A court should not grant police help if a bona fide claim of sub-tenancy is made. A contract of lease entered into by a guardian on behalf of a minor is invalid if it is not for the benefit of the minor's existing estate.

( 1 ) THE subject matter of the present litigation is one godown on the ground floor in premises No. 18/1 Nimtola Ghat Street, Calcutta. The godown was admittedly held by Kanai Lal Marwari under the owners Brojen Dutt and Bejoy Krishna Dutt. On 29th March 1948, they filed an application for possession of the godown. The application was allowed and possession was directed to be delivered on 25th May 1949. The date of delivery of possession was extended from time to time till at last on 20th June 1951, the present petitioner Sew Sankar Lal filed an application purporting to be one under Order 21 Rules 98 and 99, Civil P. C. read with Section 13 (2), West Bengal Premises Rent Control Act, 1950, alleging that he had been a subtenant in respect of the godown since the latter part of 1947 that he had a right to remain (in?) possession under the provisions of Section 13 (2), West Bengal Premises Rent Control Act, 1950, that the landlord's application for police help should be treated as one under the provisions of Order 21 Rule 97, Civil P. C. and so the Court should act under the provisions of Order 21 Rules 98 and 99 of the Code and the order for police help which had been passed earlier should be vacated. This application has been refused.

( 2 ) IT has been held in the case of -- 'thakurdas Pushpraj v. Dwarka Prasad', 87 Cal. LJ 181, (that?) the right created in favour of a sub-tenant by Section 11 (3) of the Act of 1948 cannot be enforced by way of an application in a proceeding for possession, and the only remedy of the sub-tenant is to enforce his right by regular civil suit instituted for the purpose. It was contended, however, that when a person in whose favour an order for possession has been made is resisted and he instead of filing an application under the provisions of Order 21, Rule 97, Civil P. C. asks for police help, the Court should not grant police help if it appeared to the Court that a bona fide claim has been made under the provisions of Section 11 (3), W. B. Premises Rent Control Act, 1948, or Section 13 (2), W. B. Premises Rent Control Act, 1950.

( 3 ) WHETHER the Court should order police help or not is a matter of discretion and I am of the opinion that the fact that a claim is made by the person offering resistance that he is entitled as of right to be in possession, is a matter which the Court must take into consideration in exercise of that discretion. I am further of the opinion that if the Court thinks that a bona fide claim of a sub-tenancy has been made and there is nothing on the face of it to reject the case of a sub-tenancy, the Court ought not to grant police help.

( 4 ) IT has been urged, however, on behalf of the opposite parties that on the face of it in this case there was no legal sub-letting as the person claiming to be the lessee is a minor. Quite clearly, the lease on which the petitioner claims relief is said to have come into existence when the petitioner was a minor. No case is made that the minor's father was a sub-tenant. It is the minor himself who claims to be the first sub-tenant in the case. On the authority of the decision of the Judi- cial Committee in the case of -- 'mohori Bibee v. Dharmodas Ghose', 30 Cal 539 (PC), a contract of lease if it was entered into by the minor himself was void.

( 5 ) IT was argued, however, that if the lease was taken by his guardian during his minority for his benefit, then on the authority of the decision of the Privy Council in the case of -- 'hunooman Persaud Panday v. Mt. Babooee Munraj Koonweree', 6 Moo Ind App 393 (PC), the lease would be valid and binding. It is important to notice, however, a point which has been brought out in several later decisions that in 'hanooman Persaud's case' their Lord- -ships of the Privy Council were considering the question of benefit to the existing estate of the minor. In the case of -- 'indur Chunder Singh v. Radhakishore Ghose', 19 Ind App 90 (PC), their Lordships of the Privy Counci