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PETITIONER: SHANTILAL RAMPURIA & ORS.

       Vs.

RESPONDENT: VEGA TRADING CORPORATION & ORS.

DATE OF JUDGMENT01/08/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1989 AIR 1819            1989 SCR  (3) 632  1989 SCC  (3) 552        JT 1989 (3)   301  1989 SCALE  (2)250  CITATOR INFO :  RF         1991 SC2053  (16)

ACT:     West  Bengal  Premises Tenancy Act, 1956: ss. 13,  14  & 16-Tentant--Eviction  of  on ground of  sub-letting  without written   consent-General   authority   granted   in   lease deed--Held, not sufficient.

HEADNOTE:     Section  13(1)(a)  of the West Bengal  Premises  Tenancy Act,  1956  provides for recovery of  possession  where  the tenant  or  any person residing in the premises let  to  the tenant without the previous consent in writing of the  land- lord  transfers, assigns or subsets in whole or in part  the premises  held  by him. Section 14 forbids the  tenant  from sub-letting  the  premises without the previous  consent  in writing  of the landlord. Sub-section (1) of s. 16  requires the  tenant  and every sub-tenant to whom the  premises  are sub.let  to give notice to the landlord of the  creation  of the sub-tenancy within one month from the date of such  sub- letting  and  also to notify the termination  of  such  sub- tenancy  within one month of such  termination.  Sub-section (2)  prescribes  such a notice in respect  of  sub-tenancies created  with or without the consent of the landlord  before the  commencement  of  the Act, within  the  time  specified therein. Where there is no such consent in writing from  the landlord, sub-section (3) provides for cessation of tenant’s interest in the portion sub-let and the sub-tenant  becoming a  tenant  directly under the landlord  in  certain  circum- stances.     Clause 6 of the lease-deed creating tenancy for a period of ’three years from 1st May 1948 permitted the  respondent- tenant to sub.let any portion of the demised premises  which was left unused or surplus. After expiry of the lease period in  1951,  the said tenant continued in possession,  and  by holding over became a month to month tenant. It had,  howev- er, created certain sub-tenancies within the period  covered by the lease and before the Act came into force. A suit  for its  eviction brought by the landlord in 1960 was  dismissed by the trial court.     The  landlord  filed a fresh suit in 1972 on  the  Found

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that  the tenant had created sub.tenancies in  the  premises after the dismissal of the earlier suit. The tenant advanced the plea of res judicata and con- 632 633 tended  that it was and is entitled to  grant  sub-tenancies under  cl. 6 of the lease-deed which continues to  bind  the parties. Rejecting the case of res judicata, the trial court held that a number of sub-tenants who were in possession  of the  premises at the time of the earlier suit had been  sub- stituted  later  by  another set of  sub-tenants  after  the coming  into force of the Act, and that the entire  premises was let out to sub-tenants which was not consistent with the terms of the permission as mentioned in cl. 6. Allowing  the appeal,  the  High Court, however, held that  the  suit  was barred by the rule of res judicata.     In  this appeal by special leave, it was  contended  for the  appellants that since a large portion of  the  disputed property was sublet to fresh sub-tenants after the  institu- tion  of  the earlier suit of 1960 there was  no  scope  for applying the doctrine of res judicata, and that the  consent contemplated by the 1956 Act has to be specific in regard to each  sublease, which requirement was not satisfied  by  the general permission granted by cl. 6 of the lease-deed. Allowing the appeal,     HELD:  1. In the earlier suit all the  sub-lessees  were inducted  during the period the lease was  operative,  i.e., much  before  the Tenancy Act was passed.  The  question  of violation of the provisions of the said Act, therefore,  did not arise there. The earlier judgment cannot thus operate by way of res judicata. [637A]     2.1 The provisions of s. 16 of the Act clearly  indicate that  permission to the tenant to sub-let in  general  terms cannot  be deemed to be consent for the purposes of  ss.  13 and 14. [637F]     2.2. The Act contemplates that while one sub-tenant  may be evicted another may continue in the premises as a  tenant directly under the landlord, depending on the circumstances. Therefore, previous consent in writing of the landlord  with respect  to each sub-letting separately is essential.  Since in  the instant case consent of the appellant  landlord  was not obtained specifically for each of the sub-tenancies, the respondent-tenant must be held to have violated section  14. The  appellants  are  thus  entitled  to  succeed  under  s. 13(1)(a). [638F, H]     M/s  Shalimar Tar Products Ltd. v. H.C. Sharma  &  Ors., [1988] 1 SCC 70, referred to. 3.  It  was not the case of the respondent that any  of  the sub- 634 tenants had sent any notice to the landlord as prescribed by the  Act.  Therefore, the eviction suit cannot fail  on  the ground  of non-impleading of the sub-tenants.  However,  the sub-tenants  cannot  be bound by that finding in  the  suit. They  will be entitled to be heard if and when the  landlord seeks their eviction. [639B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  331  of 1978.     From  the Judgment and Order dated 3.9.1976 of the  Cal- cutta  High Court in Appeal from Original decree No. 407  of 1974.

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B. Sen, A.K. Verma and S. Suikumaran for the Appellants. Tapash Chandra Ray and H.K. Puri for the Respondents. The Judgment of the Court was delivered by     SHARMA, J. This appeal by special leave arises out of  a suit   filed   by  the  appellants  for  eviction   of   the respondent-tenant  (hereinafter referred to as the  Corpora- tion) from certain premises on Lalbazar Street, Calcutta, on the  ground of sub-letting. The City Civil Court,  Calcutta, decreed  the suit, but on appeal by the tenant  Corporation, the Calcutta High Court reversed the judgment and  dismissed the suit.     2. Admittedly the defendant-Corporation was inducted  as a  tenant under a registered deed of lease  dated  23.4.1948 for  a period of three years from 1.5.1948. After expiry  of the period in 1951, the Corporation continued in possession, and  by  holding over became a month to  month  tenant.  The premises  consists of a big room, described as room  No.  3, along  with a small room for the use of a  Darwan  (porter), staying there as guard. The big room was, from time to time, leased out by the tenant-Corporation in portions to  differ- ent  subtenants  and in 1960 the landlord  brought  a  suit, registered as Ejectment Suit No. 978 of 1960, for the  evic- tion  of the Corporation on several grounds  including  sub- letting.  In the meantime West Bengal Premises Tenancy  Act, 1956  had  been enacted, and the provisions of  S.  13(1)(a) which  are  in the following terms, were relied  on  by  the parties:               "S.  13.  Protection of tenant  against  evic-               tion.  (1)  Notwithstanding  anything  to  the               contrary in any other law, no               635               order or decree for the recovery of possession               of any premises shall be made by any Court  in               favour of the landlord against a tenant except               on  one  or  more of  the  following  grounds,               namely:               (a) where the tenant or any person residing in               the  premises  let to the tenant  without  the               previous  consent in writing of  the  landlord               transfers, assigns or sub-lets in whole or  in               part the premises held by him ....; ...."     3. The tenant-Corporation contended that it was  permit- ted  to create sub-leases under clause 6 of the lease  docu- ment  which  is quoted below and it  cannot,  therefore,  be accused of sub-letting without the consent of the landlords:               "That the lessees shall use the demised  prem-               ises as office in connection with their  busi-               ness  and  shall  be entitled  to  sublet  the               portion which may not be used by them." It was asserted on behalf of the tenant-Corporation that all the subtenants had been inducted in the premises in question in  pursuance  of the aforesaid permission  and  before  the expiry  of  the lease period in 1951. The City  Civil  Court decided the issue ,n favour of the tenant-Corporation on the ground  that all the sub-tenancies had been  created  within the  period covered by the lease deed and before  coming  in force  of  the West Bengal Premises Tenancy Act,  1956.  The suit was held to be not maintainable also on the ground that a legally valid notice terminating the tenancy had not  been served  on the tenant. The suit was thus dismissed on  30.8. 1962 by the judgment Ext. B(2).     4. The present suit was filed in 1972 alleging that  the tenant  Corporation  has, without the consent of  the  land- lords, created fresh sub-tenancies in the premises in favour of  other  sub-tenants after the dismissal  of  the  earlier

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suit.  The case is that after the original  lease  exhausted itself by efflux of time, and otherwise also came to an  end by the landlords’ notice terminating it, the general permis- sion under clause 6 of the lease deed, mentioned above, also disappeared.  Alternatively  the appellants  have  contended that  even assuming that the term in clause 6  continues  to bind  the  parties, it does not  authorise  the  respondent- Corporation  to  sub-let the entire premises.  The  dominant purpose  of the lease was actual user by the  tenant  itself for the purpose of running its office and clause 6 permitted it to sub-let 636 only  such  portion which was left unused  as  surplus.  The appellants have also alleged default of payment of rent, but the  plea has been rejected by the trial court and  has  not been pressed before us.     5.  The suit was defended by the  respondent-Corporation contending  that as held in the earlier suit  the  defendant was  and is entitled to grant sub-tenancies, and the  plain- tiffs’  case  is fit to be dismissed. Reliance  was  placed, besides the plea of res judicata, on the language of  clause 6  which  according to the defendant continues to  bind  the parties. The City Civil Court rejected the defendant’s  case of  res  judicata and agreeing with the  plaintiffs  on  the question  of sub-letting, decreed the suit. It held  that  a number of sub-tenants who were in possession of the premises at the time of the earlier suit have been substituted  later by another set of sub-tenants after the coming into force of the  Act. The learned Judge also agreed with the  plaintiffs that  the entire premises was let out to  sub-tenants  which was  not  consistent  with the terms of  the  permission  as mentioned  in clause 6. The Court, holding that  the  tenant had violated the provisions of the 1956 Act, passed a decree for eviction in favour of the plaintiffs. The  tenant-Corpo- ration appealed before the Calcutta High Court.     6. The High Court disagreed with the City Civil Court on the  interpretation of clause 6 of the lease deed, and  held that  by  reason of the judgment in the  earlier  suit,  the present  suit  was barred by the rule of res  judicata.  The appeal was, accordingly, allowed and the suit dismissed.     7. Mr. B. Sen, the learned counsel appearing in  support of  the  appeal contended that since large  portion  of  the disputed property was sub-let to fresh sub-tenants after the institution of the earlier suit of 1960, there was no  scope for  applying  the doctrine of res judicata to  the  present litigation.  He inter alia argued that having regard to  the change in the law brought about by the 1956 Act and special- ly  in  view  of the provisions of ss. 13, 14  and  16,  the appellants are entitled to a decree.      8.  The factual position is that there are 16  sub-ten- ants as mentioned in Annexure B to the plaint who are  occu- pying the disputed room now. Out of them 5 had been inducted before the 1960 suit and were parties thereto (as was right- ly pointed out by the respondent Corporation in its applica- tion  dated 17.12.1973 for amendment of the  written  state- ment). The other 11 sub-lessees were let in after the earli- er  suit,  when the 1956 Act was in force. The  question  is whether  the  creation of these sub-tenancies  violated  the provisions of the Act. 637 In the earlier suit all the sub-lesses were inducted  during the  period the lease was operative, i.e., much  before  the present  Act  was passed. The question of violation  of  the provisions  of  the present Act, therefore,  did  not  arise there.  It follows that so far this issue is  concerned  the

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earlier judgment can not operate by way of res judicata.     9.  The  main question which remains to  be  decided  is whether in the circumstances, the plaintiffs’ case, based on alleged violation of the Act can be accepted. S. 14  enjoins that  after  the commencement of the Act  no  tenant  shall, without  the  previous consent in writing of  the  landlord, sub-let the whole or any part of the premises held by him as a tenant; or transfer or assign his rights in the tenancy or in any part thereof. According to Mr. Tapas Ray, the learned counsel of the respondent-Corporation, clause 6 of the lease deed,  which continued to bind the parties by reason of  the Corporation  holding  over, must be treated to  contain  the necessary consent of the appellants. As has been seen earli- er,  this clause granted a general permission to the  tenant to  induct  a sub-tenant. Can such a  provision  in  general terms  satisfy the requirements of the Act? Or, as has  been suggested  on behalf of the appellant, the  consent  contem- plated by the Act has to be specific in regard to each  sub- lease?     10. S. 13 protects a tenant from eviction except on  the grounds, enumerated therein and one of the grounds in clause (a) of sub-s. (1) is in the following terms:               "(a)  where the tenant or any person  residing               in the premises let to the tenant without  the               previous  consent in writing of  the  landlord               transfers, assigns or sub-lets in whole or  in               part the premises held by him;" The language of Ss. 13 and 14 by itself does not resolve the issue.  However,  the provisions of S. 16  which  is  quoted below  clearly  indicate that permission to  the  tenant  to sub-let in general terms can not be deemed to be consent for the purposes of Ss. 13 and 14:               "S. 16 Creation and termination of  sub-tenan-               cies  to  be  notified--(1)  Where  after  the               commencement  of  this Act, any  premises  are               sub-let  either  in whole or in  part  by  the               tenant with the previous consent in writing of               the landlord, the tenant and every  sub-tenant               to  whom the premises are sub-let  shall  give               notice  to  the  landlord  in  the  prescribed               manner  of  the creation  of  the  sub-tenancy               within one               638               month  from the date of such  sub-letting  and               shall  in  the prescribed  manner  notify  the               termination  of  such  subtenancy  within  one               month of such termination-               (2) Where before the commencement of this Act,               the tenant with or without the consent of  the               landlord,  has sub-let any premises either  in               whole  or in part, the tenant and  every  sub-               tenant to whom the premises have been  sub-let               shall  give  notice to the  landlord  of  such               sub-letting  in the prescribed manner  (within               six  months) of the commencement of  this  Act               and shall in the prescribed manner notify  the               termination  of  such sub-tenancy  within  one               month of such termination-               (3) Where in any case mentioned in sub-section               (2)  there  is no consent in  writing  of  the               landlord and the landlord denies that he  gave               oral  consent,  the Controller  shall,  on  an               application made to him in this behalf  either               by  the landlord or the sub-tenant within  two               months  of  the  date of the  receipt  of  the

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             notice  of sub-letting by the landlord or  the               issue of the notice by the sub-tenant, as  the               case  may be, by order declare that  the  ten-               ant’s  interest in so much of the premises  as               has  been  sub-let shall cease  and  that  the               subtenant shall become a tenant directly under               the  landlord from the date of the order.  The               Controller shall also fix the rents payable by               the tenant and such sub-tenant to the landlord               from  the  date of the order. Rents  so  fixed               shall  be deemed to be fair rent for  purposes               of this Act." It  is plain from the above that the Act  contemplates  that while one sub-tenant may be evicted another may continue  in the  premises as a tenant directly under him,  depending  on the  circumstances.  We  are, therefore, of  the  view  that previous consent in writing of the landlord with respect  to each  sub-letting  separately  is essential  and  a  general authority  to the tenant in this regard will not  be  suffi- cient  in law. Our view is supported by the observations  in M/s  Shalimar Tar Products Ltd. v. H.C. Sharma  and  Others, [1988] 1 SCC 70; a case arising under the Delhi Rent Control Act.  An examination of Ss. 14(1)(b), 16, 17 and 18  of  the Delhi  Rent Control Act would show that the two  Acts  (West Bengal Act and the Delhi Act) are similar so far the present question is concerned. In the present case, since it is  not suggested  on behalf of the respondent that consent  of  the appellants  was obtained specifically for each of  the  sub- tenancies, the respondent-Corporation 639 must  be  held to have violated S. 14. The  appellants  have thus,  established the ground mentioned in S.  13(1)(a)  and are entitled to succeed.     11.  None of the sub-tenants has been impleaded  in  the present suit, but as it is not the case of the tenant-Corpo- ration  that any of them had sent any notice to  the  plain- tiffs, the suit, so far the present respondent is concerned, can not fail on the ground of their non-impleading. However, the sub-tenants can not be bound by the finding in this suit that they have failed to serve a notice as prescribed by the Act  on the plaintiffs and will be entitled to be  heard  if and  when  the plaintiffs seek their eviction.  So  far  the sub-tenants  who had been inducted in the  premises  earlier and  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 would be entitled to continue in possession as tenants directly under the plaintiffs.     12. For the reasons mentioned above, the decision of the High Court is set aside and the decree of eviction passed by the  City Civil Court against the respondent-Corporation  is restored.  The  appeal  is accordingly  allowed  with  costs throughout. P.S.S.                                                Appeal allowed. 640