MOHAMMAD SALIM Vs. MOHAMMAD ALT

JUDGEMENT

(1.) 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 impugned 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 according 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 witnesses was landlord himself. Therefore, this is done with the knowledge and consent of the landlord and as such valid. The agreement states, inter alia as follows:

(2.) One of the attesting witnesses 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 subtenancy. There was no exclusive possession with the respondent. 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 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.

(3.) Our attention was drawn to the decision of this Court in M/s. Girdhar Lal and Sons v. Balbir Nath Mathur, (1986) 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 knowledge of the landlord do not help. Our attention was also drawn to S. 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.