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High Court Of Calcutta
C. Mookerjee, Sharma, J.
Debabrata Mukherjee – Appellant
Versus
Kalyan Kumar Roy – Respondent
F.M.A.T, No. 2532 of 1980.
Decided On: March 09, 1981
PRESIDENCY SMALL CAUSE COURTS ACT - SECTION 41 - WEST BENGAL PREMISES TENANCY ACT - SECTION 14 - TRANSFER OF PROPERTY ACT - SECTION 108 - CONTRACT ACT - SECTION 23 - RENT CONTROL LEGISLATION - SUB-LETTING - LEGALITY - EFFECT OF UNAUTHORISED SUB-LETTING - RELATIONSHIP BETWEEN TENANT AND SUB-TENANT - TEMPORARY INJUNCTION - BALANCE OF CONVENIENCE.
Fact of the Case:
Plaintiff-appellant filed a suit against the defendant-respondent for a declaration of his tenancy right under the latter in respect of a flat and for permanent injunction to restrain the defendant from executing the order for possession passed under Section 43 of the Presidency Small Cause Courts Act, 1882. The trial court dismissed the plaintiff's application for granting temporary injunction. Hence, the plaintiff preferred an appeal.
Finding of the Court:
1. The defendant-respondent is a tenant in respect of the disputed flat under the Official Trustee of West Bengal. 2. Since 1962, the plaintiff has been occupying the said flat. 3. The plaintiff alleged that the defendant had inducted him as a sub-tenant under him subject to certain terms and conditions. The defendant denied that the plaintiff was ever a tenant under him and claimed that the plaintiff was a licensee under him and that the said license had been since determined. 4. The defendant filed an application under section 41 of the Presidency Small Cause Courts Act for recovery of possession of the disputed flat from the plaintiff. The plaintiff filed an application for adding him as a defendant in Ejectment Suit No. 1152 of 1974 brought by the Official Trustee of West Bengal against the defendant. 5. The learned Judge, 3rd Bench, City Civil Court at Calcutta dismissed Ejectment Suit No. 1152 of 1974 on the ground that the plaintiff, Official Trustee of West Bengal, had failed to prove that any notice under section 13 (6) of the West Bengal Premises Tenancy Act was served upon the defendant, Kalyan Kumar Roy, and therefore the ejectment suit was not maintainable. 6. The learned Judge, 6th Bench, Court of Small Causes, Calcutta, allowed the defendant's application under section 41 of the Presidency Small Cause Courts Act and passed an order for possession in his favour. 7. The plaintiff instituted the instant suit for declaration of his tenancy right under the defendant respondent and for permanent injunction. 8. The learned Judge of the court below dismissed the plaintiff's application for temporary injunction on the ground that the status of the plaintiff had been conclusively decided in the aforesaid ejectment suit brought by the Official Trustee in the City Civil court against the defendant and to which plaintiff on his own initiative was added as a party defendant.
Issues: 1. Whether the decision in the ejectment suit in which the plaintiff and the defendant were co-defendants operated as res judicata? 2. Whether the findings made by the learned Judge, 3rd Bench, City Civil Court in Ejectment Suit No. 1152 of 1974 to the effect that Kalyan Kumar Roy did not sub-let the present plaintiff was not a sub-tenant now operate as res judicata? 3. Whether there is a legal relationship as between a tenant and his sub-tenant whom he had inducted without prior consent in writing of his landlord?
Ratio Decidendi: 1. The court held that it was premature to decide the issue of res judicata at this stage as the suit was yet to be decided and the defendant had not yet filed his written statement. 2. The court observed that the decision of the learned Judge in the ejectment suit that the defendant did not sub-let the present plaintiff was not a sub-tenant may operate as res judicata, but it depends upon the pleadings in the former case, issues struck therein, and the decision in the suit. 3. The court held that even when a subletting is without the prior consent of the superior landlord, there would be a legal relationship as between the tenant and his sub-tenant. The court reasoned that the West Bengal Premises Tenancy Act does not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him.
Final Decision: The court allowed the appeal, set aside the order of the trial court, and directed that an unconditional order of temporary injunction in plaintiff's favour will remain in force for two months. The court further directed that the plaintiff must deposit a sum of Rs. 15000/- in the trial court as a condition for granting an order of temporary injunction in his favour. The court also directed that the trial court would dispose of the suit within 31st January, 1982.
1. THE plaintiff appellant has filed a suit against the defendant respondent in the City Civil court at Calcutta, inter-alia, for a declaration that he is a tenant under the latter in respect of Flat No. 18, Premises No. 26, Chowringhee Road and for permanent injunction to restrain the defendant from executing the order for possession passed under Section 43 of the Presidency Small Cause Courts Act, 1882 in Case No. 2408 of 1975 and from disturbing the plaintiff's possession in the said flat. After contested hearing the trial court has dismissed the plaintiff's application for granting temporary injunction in the above terms. Thereafter, the plaintiff appellant has preferred the instant appeal.
2. UNDISPUTEDLY, the defendant respondent is a tenant in respect of the disputed flat under the Official Trustee of West Bengal. It is also not very much disputed that since the year 1962 the plaintiff has been occupying the said that The plaintiff has alleged that the defendant had inducted him as a subtenant under him subject to certain terms and conditions. The defendant has denied that the plaintiff was ever a tenant under him and his case is that the plaintiff was a licencee under him and that the said licence had been since determined. The defendant has claimed that, therefore he is entitled to recover possession of the flat in question.
It has also transpired from the materials produced before the trial court that the Official Trustee, West bengal, had instituted in the City Civil court at Calcutta, Ejectment Suit No. 1152 of 1974 against the present defendant, interalia, on the allegation that the defendant was a tenant in respect of Flat No. 18. He was allegedly a defaulter in payment of rent and that he had illegally and unlawfully sublet the premises without the consent of his landlord. The defendant contested the said suit denying that he was a defaulter and claimed that he had paid advance rent of Rs. 5000/- adjustable from the monthly rent. He also denied that he had sublet the premises. The defendant further denied the receipt of any notice of ejectment.
3. IN the meantime, the present defendant, Kalyan Kumar Roy, filed in the Court of Small Causes, Calcutta, an application under section 41 of the Presidency Small Cause Courts Act for recovery of possession of the disputed flat from the present appellant. He alleged that the present appellant was a licencee under him and the permission granted to him had been terminated. Thereupon, the present appellant had filed an application for adding him as a defendant in Ejectment buit No. 1152 or 1974 Drought by the Official Trustee of West Bengal against the present defendant, Kalyan Kumar Roy. After the said application was allowed, he had filed a Written Statement in the said suit claiming that he was a sub-tenant under the defendant No. 1. On his application under section 10 of the Code of civil Procedure the aforesaid proceeding under section 41 of the Presidency, small Cause Courts Act had remained stayed. The defendant No. 1 had filed an additional written statement denying that the defendant No. 2 (The plaintiff herein) was a sub-tenant under him and he claimed that the defendant No. 2 was given permission to live with his family in the suit premises.
4. ON 22nd February, 1979 the learned Judge, 3rd Bench City Civil court at Calcutta dismissed Ejectment suit No. 1152 of 1974. The learned Judge, inter-alia, found that the plaintiff, official Trustee of West Bengal, had failed to prove that any notice under section 13 (6) of the West Bengal Premises Tenancy Act was served upon the defendant, Kalyan Kumar Roy, and therefore the ejectment suit was not maintainable. The learned Judge also dealt with the other issues assuming that the uit was maintainable. The learned Judge recorded that the arrear rent having been paid by the defendant, there was no scope for holding that the defendant was a defaulter. The learned Judge further held that the plaintiff, Official Trustee h
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