A sub-tenant has a lawful jural relation of landlord and tenant with his landlord, even if the sub-tenancy was made in violation of Section 14 of the West Bengal Premises Tenancy Act and has not been notified in accordance with the provisions of Section 16. The sub-tenant can resist execution of a decree for eviction passed against his landlord during the pendency of an appeal from the eviction decree.

A. M. BHATTACHARJEE, J.

( 1 ) THE respondent-landlord has obtained a decree for ejectment against its tenant and the appeal by the tenant against that decree is now pending in this Court. The two appellants in these two appeals have now filed two suits challenging that decree is not binding on them on the allegation that the two disputed premises have been lawfully sub-let to them by the tenant and they have filed applications for orders of temporary injunction restraining the superior landlord, the respondent, from proceeding with execution of that decree and from dispossessing them or disturbing their possession in any way in execution thereof. The applications have been rejected by the Trial Court and being aggrieved thereby these two appeals have been preferred by the two sub-tenants which are being disposed of by this common judgment.

( 2 ) THE appellants/sub-tenants being admittedly in possession of the disputed premises and carrying on business there, it can not be disputed that if (and only if) they have been able to make out a prima facie case in their favour requiring consideration, then, according to the well-established principles governing temporary injunctions, which have almost become platitudinous during all these centuries, temporary injunctions should be granted for maintenance of status quo ante because if they are not granted and the appellants are thrown out of possession during the pendency of their Suits, the injury they would suffer would be irreparable. We think that there should be no doubt that between a person claiming right to possession being thrown out of possession and a person entitled to recover possession being temporarily restrained from recovering possession for the time being, balance of convenience and inconvenience is in favour of the former and against the latter. That being the position, the only question that would require our consideration in these two appeals is whether the appellants have been able to make out such a prima facie case as would reasonably require consideration by the Trial Court.

( 3 ) ADMITTEDLY a decree for eviction has been passed against the tenant of the first decree under whom the appellants claim to be sub-tenants. Under the general law of landlord and tenant, a tenant, in the absence of a contract to the contrary, is entitled to sub-let the tenanted premises, but a decree for ejectment against the tenant would bind the sub-tenant. But Section 14 of the West Bengal Premises Tenancy Act, which governs the cases at hand, however, prohibits sub-letting by the tenant without the previous consent in writing of the landlord and Section 13 (1) (a) makes such unauthorised sub-letting a ground for ejectment of the tenant and Section 13 ( 3) provides that in ejectment decree passed on such ground would be binding on the sub-tenant. But even when the sub-letting has been made by the tenant with the previous consent in writing of the landlord, Section 16 (1) requires both the tenant and the sub-tenant to notify to the landlord the creation of such sub-tenancy within one month from the date of such sub-letting. And only when it is so done, Section 13 (2) would require every such sub-tenant to be made a party to the Suit for ejectment by the superior landlord against his immediate tenant, implying thereby that the decree for ejectment passed in any Suit by the superior landlord against the immediate tenant would not be binding on such a sub-tenant who was not made a party to that Suit.

( 4 ) THE appellants have urged that their landlord, i. e. , the tenant of the first degree, had the previous written consent of its landlord to sub-let the premises and reliance has been placed by them on Clause 7 of the agreement of tenancy between the superior landlord and the tenant of the first degree which is as hereunder :"that you will not be entitled to sub-let the said tenancy or any portion thereof under any circumstances. However, you may accommodate your sister concerns there

Click Here to Read the rest of this document