Payment of rent to a sub-tenant cannot be considered as payment to the landlord under a statutory tenancy.

Sinha, J. :- This is an appeal from an order made by Banerjee J. dated 14-2-1950, whereby he dismissed the application of the applt. for an injunction restraining reap. 1 from executing a decree for possession obtained by him against resp. 2.

2. Respondent 2 (hereinafter referred to as the tenant) was a tenant under resp. 1 (hereinafter referred to as the landlord) in respect of Room No. 12, in premises No. 29, Waterloo street, at a monthly rent of Rs. 51. In August 1949, the tenant sub-let a portion of the said room to the applt. at a monthly rent of Rs. 70. The tenant did not pay any rent to the landlord for June, July and August 1949. On 9-9-1949, the landlord through his attorney wrote to the tenant to vacate the room within three days. The tenant not having vacated, on 21-9.1949, the landlord filed Suit No. 3938 of 1949 against the tenant for recovery of possession and for arrears of rent.

3. The applts. case is that in January 1950 he came to know that the landlord had filed a suit for possession against the tenant and was going to obtain a decree. The appellant thereupon offered to pay rent to the landlord which was refused. On 10-1-1950, the applt. wrote to the landlord through his attorney alleging that the interest of the tenant having been determined, the applt. should be deemed to be a tenant directly under the landlord.

4. The landlords suit against the tenant was decreed on 20-1-1950.

5. The applt. on the next day filed the suit out of which this appeal arises for a declaration that the said decree dated 20-1-1950, could not be executed against him, for a declaration that he was a tenant under the landlord direct and for an injunction restraining the landlord from executing the decree against him.

6. On 1-2-1950, notice of motion was taken out for an injunction restraining the landlord from proceeding with the execution of the decree dated 20-1-1950.

7. The learned Judge was of opinion that the tenant having defaulted in payment of rent for 3 consecutive months viz. June, July and August 1949, the interest of the tenant stood ipso facto determined. The result was that under S. 11 (3) the apt., who was a lawful subtenant, became a statutory tenant holding directly under the landlord on the same terms and conditions on which he was holding under the tenant. The appt., therefore, became liable to pay the rent under the statutory tenancy to the landlord from September onwards. He did not pay any rent and his statutory tenancy determined ipso facto by reason of non-payment of rent for 3 consecutive months.

8. It was contended before the learned Judge that the interest of the tenant did not determine till the decree had been made on 20-1-1950. It was not contended before the learned Judge that the aplt. was not a defaulter if he was deemed to have become a tenant under the provisions of S. 11 (3) immediately after the determination of the interest of the original tenant. It was, however, argued that though the tenancy of the original tenant had determined at the end of August 1949, he had a right to continue in possession till the decree for ejectment had been made against him and his interest as a tenant continued and was not lawfully determined till the decree had been made. The learned Judge did not accept this contention and held that the pltf. had not been able to make out a prima facie case and refused the appln.

9. Before us it was not urged that the interest of the tenant had not been lawfully determined till the decree for ejectment was made. It was, however, contended that the applt. had paid the rent to his immediate landlord regularly and this payment should be deemed to be payment to the landlord. If so the applt. was not in default and had made out a prima facie case and was entitled to the injunction.

10. Section 50, T. P. Act, was relied on which provides that no person shall be chargeable with any rents or profits of any immovable property, which he has in good faith paid or delivered to any person of