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Calcutta High Court · body

2008 DIGILAW 437 (CAL)

Ratan Sen v. Kanailal Sinha

2008-04-24

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT 1. THIS first appeal is at the instance of the added defendants in a suit for eviction decreed on the ground of default in payment of rent and subletting and is directed against the judgment and decree dated 29th March, 1996 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Ejectment Suit no. 894 of 1983. 2. THE plaintiffs-respondents filed the aforesaid suit against one Kshitish chandra Sen Majumder on the ground of default in payment of rent and subletting by describing him as the sole tenant. In the said suit, the appellants before us filed application under Order I rule 10 of the Code of Civil Procedure and they were added as defendants on their allegation that they were sub-tenants with the consent of the previous owner of the property in writing. There is no dispute that the plaintiffs-respondents were subsequent purchasers. 3. THE suit was not contested by the heirs of the original defendants. However, the added defendants, the alleged sub-tenants, contested the suit by filing the written statements thereby denying the material allegations made in the plaint and their specific defence was that they were inducted by the tenant with specific consent in writing of the predecessor-in-interest of the plaintiffs. 4. THE learned Trial Judge, on consideration of the materials on record, disbelieved the case of the appellants and concluded that the added defendants were inducted without the written consent of the then owner of the property. In arriving at such conclusion, the learned Trial Judge also arrived at the conclusion that neither the original tenant nor the alleged sub-tenants ever issued any notice in terms of Section 16 (1) of the West Bengal Premises Tenancy act and thus, their plea of sub-tenancy should not be taken into account. Being dissatisfied, the added defendants have come up with the present first appeal. 5. Being dissatisfied, the added defendants have come up with the present first appeal. 5. AFTER hearing the learned counsel for the parties and after going through the materials on record we find that according to law, a landlord is under no obligation to make an alleged sub-tenant party to the proceedings for eviction against the tenant on any of the grounds referred to in Section 13 (1) of the Act if the tenant and the sub-tenant had not given any notice in terms of Section 16 of the Act and in such a situation, the sub-tenant shall be bound by the decree passed against the tenant. However, such sub-tenant if not made party to the proceedings for eviction can resist the decree in execution by taking recourse to order 21 Rule 97 or Rule 99 as the case may be and in such situation, the executing Court is entitled to examine whether any notice in terms of Section 16 of the Act was really given. Even if the sub-tenancy was created with the written consent of the landlord, the sub-tenant in the absence of a notice under Section 16 of the Act will nevertheless be liable to be bound by the decree passed against the tenant. In this connection we may appropriately refer to the following observations of the Supreme Court in the case of Biswantah Poddar vs. Archana poddar and another reported in AIR 2001 SC 2849 made following observations while commenting on the status of a sub-tenant who has not given notice under section 16 of the Act:- "having heard the arguments of the learned counsel and perused the records, we notice that under the provisions of the Act the requirement of previous consent of the landlord as also intimation in writing in the manner prescribed under the Act by the tenant as well as the sub-tenant within the time stipulated thereunder being a mandatory requirement, the creation of sub-tenancy without fulfilling these requirements becomes opposed to Section 14 of the Act. If it is a subtenancy created contrary to the provisions of the Act then as could be seen from Section 13 (2) of the Act, it becomes unnecessary for the landlord to implead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. If it is a subtenancy created contrary to the provisions of the Act then as could be seen from Section 13 (2) of the Act, it becomes unnecessary for the landlord to implead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. In the instant case, the parties before the executing Court have adduced evidence and based on that evidence the trial Court has come to the conclusion on facts that neither of the twin requirements, namely, the previous consent of the landlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of Section 13 (2) of the Act. " 6. ONCE the appellants were added as additional defendants in the suit although not required under the law, they got the opportunity to canvass in the suit itself without waiting for the levy of execution case by the landlord that the requirement of Section 16 of the Act was complied with and once they established such fact, the provisions of Sections 13 (2) and 13 (3) of the Act would have been attracted. In the case before us, it is not their case that any notice in terms of Section 16 of the Act was ever issued and thus, they are bound by the decree passed against the tenant on any of the grounds referred to in Section 13 (1) of the Act. Thus, once it has been established that the original defendants were defaulter in payment of rent and that the added defendants were sub-tenants without complying with the requirement of Section 16, the said decree would be binding upon the sub-tenants of the property because of the fact that they did not give any notice in terms of Section 16 of the Act. 7. WE, therefore, propose to affirm the judgment and decree passed by the learned Trial Judge on the aforesaid ground. The judgment and decree passed by the learned Trial Judge, thus, are affirmed. In the facts and circumstances, there will be, however, no order as to costs.