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PETITIONER: MD. SALIM

       Vs.

RESPONDENT: MD. ALl SINCE DECEASED THROUGH HISLRS. MD. ASSIM & ORS.

DATE OF JUDGMENT26/08/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2173            1987 SCR  (3)1087  1987 SCC  (4) 270        JT 1987 (3)   446  1987 SCALE  (2)407  CITATOR INFO :  D          1989 SC  93  (4,10)

ACT:     West  Bengal Premises Tenancy Act,  1956--Definition  of ’tenant’ in section 2(4) thereof--Whether the petitioner was a  sub-tenant  not bound by decree of eviction  against  the tenant.

HEADNOTE:     This  petition  for special leave to  appeal  was  filed against  the judgment and order of the High  Court,  whereby the  High Court had held that the petitioner was not a  sub- tenant and as such he was bound by the decree passed against the  tenant for eviction. The petitioner  challenged  before this Court the finding of the High Court and contended  that he  was a sub-tenant with the knowledge and consent  of  the landlord  and as such the decree of eviction passed  against the  tenant did not bind him because in the suit he had  not been a party. He should have been made a party to the suit. Dismissing the petition, the Court,     HELD:  The  High Court was right. The attention  of  the Court was drawn to an agreement of 1st September, 1966, with the  contention that that was an arrangement of  sub-letting and in that document one of the attesting witnesses was  the landlord  himself, and, therefore, the subletting  was  done with the knowledge and consent of the landlord and, as such, was valid. [1088G]     One of the attesting witnesses to the said agreement was Md. Ali, the respondent herein, who was at the relevant time the  landlord, now represented by his legal  representatives in this petition. On a construction of the different clauses of the aforesaid document, the Court was of the opinion that this was an agreement of the business of the tenant. It  was not and could not be construed as an agreement of  subtenan- cy.  There  was no parting of possession  of  the  premises. There  was  only a right to "manage" the  business,  looking after the existing business with fixed monthly payments  and this could not be construed as an agreement of  sub-tenancy. Therefore,  though the landlord had knowledge of  the  docu- ment, it could not be said to be consent to an agreement 1088

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of  sub-tenancy.  The attention of the Court  was  drawn  to section  2(4) on the expression ’tenant’ in the West  Bengal premises  Tenancy Act, 1956. That definition did not  affect the position of the petitioner in this case as there was  no sub-tenancy in the case. [1090C-E, G] The High Court was right in the view it took. [1088F]     M/s.  Girdhar Lal & Sons v. Balbir Nath Mathur and  oth- ers, [1968] 2 S.C.C. 237, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Special Leave Petition No. 4 120 of 1987.     From  the  Judgment and Order dated 24.12. 1986  of  the High Court of Calcutta in Civil Rule No. 676 of 1985. R.B. Mehrotra for the Petitioner. S.K. Bhattacharya for the Respondents. The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. This is a petition for  special leave  to appeal against an order and judgment of  the  High Court  of  Calcutta dated 24th September, 1986. By  the  im- pugned  judgment and order the High Court has held that  the present  petitioner was not a sub-tenant and as such he  was bound by the decree passed against the tenant for  eviction. The petitioner challenges that finding and contends that  he was a sub-tenant with knowledge and consent of the  landlord and as such it does not bind him because in the suit he  was not a party. There should have been a separate suit  accord- ing  to him. He should have been made a party to  the  suit. The  High Court has held against this contention. We are  of the  view that the High Court was right. Our  attention  was drawn  by Mr. Kacker to the agreement of 1st  of  September, 1966, contending that this was an arrangement of  subletting and in that document one of the attesting witness was  land- lord himself. Therefore, this is done with the knowledge and consent  of  the landlord and as such valid.  The  agreement states, inter alia as follows:               "THIS  MEMORANDUM OF AGREEMENT made  this  the               1st  September 1966 BETWEEN ABDUR RAHAMAN  son               of  late  Nabi Buksh by  religion  Muslim,  by               profession  business of 51/1, Watgunj  Street,               P.S. Watgunj               1089               District 24-Parganas, Calcutta-23, hereinafter               called the FIRST PARTY OF THE ONE PART AND MD.               SALIM son of Waris Ali, by religion Muslim  by               profession business residing at 2/3, Mominpore               Road  Police  Station Ekbalpore  District  24-               Parganas,  Calcutta-23 hereinafter called  the               SECOND  PARTY  OF THE OTHER PART  WHEREAS  tHE               FIRST PARTY having taken settlement of a  shop               room  its landlord Md. Mea has been running  a               business with the stock-in-trade as  described               in  the schedule below AND WHEREAS  THE  FIRST               PARTY feels it inconvenient to look after  and               manage  the  same personally  at  present  AND               WHEREAS THE SECOND PARTY is willing to  manage               the said business on behalf of the FIRST PARTY               on terms and conditions hereinafter appearing;               NOW THIS MEMORANDUM WITNESSES:               That the first party will remain the  proprie-               tor of the aforesaid business and the business               Licence  shall stand in the name of the  FIRST               PARTY  and the costs thereof shall be paid  by

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             the SECOND PARTY:               That house rent of the shop room shall be paid               by  the  FIRST  PARTY in his  name;  That  the               SECOND PARTY run the business in the shop room               with the stock-in-trade supplied by the  First               Party  as  described in the schedule  as  also               with  other articles and stock-in-trade to  be               supplied by him and manage the affairs of  the               said  business under his personal  supervision               for  two (2) years with effect from 1.9.66  to               31.8.66 on behalf of the First Party and  will               restore the business alongwith the said  arti-               cles in good condition with the expiry of  the               term  of this contract; That the second  party               will  pay  to the First Party a sum  of  Rs.90               (Rupees Ninety) only per month payable  within               the 7th day of each month for which it becomes               payable.  That the SECOND PARTY will be  enti-               tled  to  appropriate the  entire  issues  and               profits  arising  out of the business  in  its               entirely  subject to the aforesaid payment  to               be made to FIRST PARTY and the costs of Licen-               see  fees.  That the SECOND  PARTY  SHALL  not               encumber the business in any way and shall not               be  entitled  to raise any  loan  against  the               business and the business shall not be  liable               for  any such, debt, if any, incurred  by  the               SECOND PARTY That the SECOND PARTY shall  also               bear all incidental costs               1090               for  carrying out the business properly.  That               if  the SECOND PARTY fails or neglects to  pay               the dues reserved under this contract for  two               months  or  violates  any  of  the  conditions               mentioned herein then this agreement shall  be               treated as cancelled and of no effect and  the               First  party will be entitled to re-enter  the               shop  room and business and to take khas  pos-               session  of the same along with  the  articles               mentioned in the schedule."     One of the attesting witness to the .said agreement  was Md. Ali, the respondent herein, who was at the relevant time landlord and is now represented by his legal representatives to  this  application. On a construction  of  the  different clauses of the aforesaid document we are of the opinion that this was an agreement for management of the business of  the tenant.  It was not and cannot be construed as an  agreement of  sub-tenancy. There was no exclusive possession with  the respondent. There was no parting of possession of the  prem- ises,  there  was  only a right to  "manage"  the  business, looking  after  the  existing business  with  fixed  monthly payments  and  this cannot be construed as an  agreement  of sub-tenancy. Therefore, though the landlord had knowledge of the  document and as such can be said to have  consented  to the bargain it cannot be said to be consent to an  agreement of sub-tenancy.     Our attention was drawn to the decision of this Court in M/s  Girdbar  Lal & Sons v. Balbir Nath Matbur  and  Others, [19681  2  SCC 237 where considering  similar  provision  of Delhi  Rent  Control Act, 1958, it was held that  where  the landlord  had  in fact consented to the sub-tenancy  and  as such the sub-tenancy was valid and landlord was bound by it. But in the present case, there was no sub-tenancy created by the agreement mentioned herein. Hence the consent and knowl- edge  of  the landlord do not help. Our attention  was  also

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drawn  to  section 2(4) on the expression ’tenant’  in  West Bengal Premises Tenancy Act, 1956. That definition does  not affect the position of the petitioner in the instant case as there was no sub-tenancy in the present case.     In  view  of the above, we are of the opinion  that  the High Court was right in the view it took. The Special  leave petition is accordingly dismissed. There will be no order as to costs. S.L.                                                Petition dismissed. 1091