Full Judgment Text
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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