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HIGH COURT OF CALCUTTA
Tarun Chatterjee & D.K. Jain, JJ.
J.C. Chakraborty & Co.
Vs.
Santilal Rampuria & Ors.
F.M.A. No. 1608 of 1997
Decided On : April 23, 1998
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 16(2), 30(5) - PRE-ACT SUB-TENANCY - NOTICE OF SUB-LETTING - NON-SERVICE OF NOTICE - EFFECT - SUB-TENANT NOT BOUND BY DECREE AGAINST TENANT - DIRECT TENANCY UNDER LANDLORD NOT ESTABLISHED.
Fact of the Case:
The appellant, an alleged sub-tenant, filed a petition under Order 21 Rules 98, 100, and 101 of the Code of Civil Procedure, seeking a declaration that he was a tenant in respect of his occupation of the disputed property and that he was not bound by the decree obtained by the decree-holder respondents against the tenant-corporation. The petition was dismissed by the trial court, and the appellant unsuccessfully appealed to the High Court.
Finding of the Court:
The High Court held that the appellant was not entitled to a declaration of tenancy or to be protected from eviction because he had failed to serve a notice of sub-letting on the landlord as required by section 16(2) of the West Bengal Premises Tenancy Act, 1956. The court found that the requirement of section 16(2) was mandatory and that a sub-tenant would have no protection against eviction under the general law except for this provision. The court also held that the appellant's argument that he had become a direct tenant under the landlord due to the permission given in the lease deed to sublet and the landlord's knowledge of the sub-tenancy was not supported by the factual record.
Issues: 1. Whether the appellant, as a sub-tenant, was bound by the decree obtained by the decree-holder respondents against the tenant-corporation in the absence of a notice of sub-letting served on the landlord under section 16(2) of the West Bengal Premises Tenancy Act, 1956? 2. Whether the appellant could establish a direct tenancy under the landlord based on the permission given in the lease deed to sublet and the landlord's knowledge of the sub-tenancy, despite the failure to serve a notice under section 16(2)?
Ratio Decidendi: 1. Section 16(2) of the West Bengal Premises Tenancy Act, 1956, imposes a mandatory obligation on sub-tenants to give notice of their sub-tenancies to the landlord within six months from the commencement of the Act. This requirement is essential for sub-tenants to be protected under the Act, including protection from eviction. 2. Failure to serve a notice of sub-letting under section 16(2) means that the sub-tenant is not entitled to the protection of the Act and is bound by a decree for eviction obtained against the tenant. 3. The appellant's argument that he had become a direct tenant under the landlord due to the permission given in the lease deed to sublet and the landlord's knowledge of the sub-tenancy was not supported by the factual record and could not be considered in the absence of a proper factual basis.
Final Decision: The High Court dismissed the appellant's appeal, upholding the trial court's decision to dismiss the petition under Order 21 Rules 98, 100, and 101 of the Code of Civil Procedure. The appellant was not entitled to a declaration of tenancy or protection from eviction due to his failure to serve a notice of sub-letting under section 16(2) of the West Bengal Premises Tenancy Act, 1956.
Tarun Chatterjee, J.: This case has a chequered history. Therefore, we like to narrate the facts anterior to the filing of the present appeal.
2. The predecessor-in-interest of the respondent Nos. 1 to 14 inducted M/s. Vega Trading Corporation (In short “the Corporation”) a firm carrying on business on and from B-8, Lalbazar Street, P.S. Hare Street, Calcutta under a registered deed of lease executed by them on 23rd April, 1948. The Corporation, thereafter, inducted several tenants in different portion of the premises in question. In the year 1960, the predecessor-in-interest of the respondent Nos. 1 to 14 brought an ejectment suit being Ejectment Suit No. 978/60 in the City Civil Court at Calcutta seeking eviction of the Corporation on the grounds of non-payment of rent and sub-letting. The eviction suit was however, dismissed by the City Civil Court at Calcutta. In 1972, the respondent Nos. 1 to 14 filed another suit for eviction in the City Civil Court at Calcutta which was registered as, Ejectment Suit No. 650/72 on the grounds of non-payment of rent and sub-letting. This time on 26th February, 1974, the aforesaid Ejectment Suit was however, decreed in favour of respondent Nos. 1 to 14. Against the aforesaid judgment and decree of the City Civil Court at Calcutta, the Corporation preferred an appeal before this Court and by a judgment and decree dated 3rd September, 1976, the judgment and decree of the City Civil Court Calcutta dated 26th February, 1976 passed in Ejectment Suit No. 650/72 was set aside by this Court and the suit was dismissed. Against the aforesaid judgment of this Court passed on 3rd September, 1976, the respondent nos. 1 to 14 filled a Special Leave Petition before the Hon'ble Supreme Court. By a final judgment dated 1st August, 1989, the Apex Court of our country had set aside the judgment and decree of this Court on a reversal of the findings of this Court and restored the findings of the City Civil Court at Calcutta with the following observations:
“None of the sub-tenants has been impleaded in the present suit, but as it is not a case of tenant-corporation that any of them has sent any notice to the plaintiffs of the suit, so far as the present respondent is concerned, cannot fail on the ground of their non-pleading. However, the sub-tenants cannot be bound by the findings in this suit that they have failed to serve a notice as prescribed by the Act. Plaintiffs would be entitled to be heard if and when the plaintiffs seek their eviction so far as the sub-tenants who had been inducted in the premises earlier were parties to the 1960 suit may have still a better claim on the strength of the decree in their favour and may insist that they will be entitled to continue in possession as tenants directly under the plaintiffs”.
3. After the judgment of the Supreme Court decreeing the suit for eviction of the respondent nos. 1 to 14 which was passed against the Corporation, the sub-tenants who were inducted by the Corporation had filed a declaratory suit in the City Civil Court at Calcutta which was registered as T.S. No. 1626/89. Be it mentioned herein that the said suit was filed by the present appellant along with sixteen other alleged subtenants. However, in the year 1990, the aforesaid Declaratory Suit being T.S. 1626/89 was withdrawn at the instance of the alleged sub-tenants, one of whom is the appellant before us. The alleged sub-tenants including the appellant filed another suit being T.S. 231/91 in the City Civil Court at Calcutta on 19th February, 1991, in which the present appellant was also a plaintiff out of the sixteen other plaintiffs. In that suit the Corporation was also made a party. In the said declaratory suit, an injunction application was moved by the alleged sub-tenants. By a judgment and order dated 19th April, 1991, the learned Judge, 7th Bench of the City Civil Court at Calcutta rejected the application for injunction filed in the aforesaid suit being T.S. No. 231/91. Feeling a
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