MOHAMMED HAJI GANI Vs. A. MOHSIN RAJA

JUDGEMENT

(1.) THE question in this Civil Revision Petition is whether the respondent was entitled to maintain a suit for the ejectment of the petitioner under Section 41 of the Presidency Small Cause Courts Act, in view of the provisions of the Madras Buildings (Lease and Rent Control) Act of 1946 (Madras Act XV of 1946). The respondent had let No. 5, Anderson Street, George Town, Madras, to one M.S. Moosa Sait., and Moosa Sait had sublet a godown attached to No. 5, Anderson Street to the petitioner. Before the application was made under Section 41 of the Presidency Small Cause Courts Act the respondent had sent a notice to Moosa Sait terminating his tenancy. The learned Small Cause Court Judge held that Section 41 of the Presidency Small Cause Courts Act was applicable to a sub -tenant, and in support of his conclusion referred to the case of Suryanarayana v. : AIR1929Mad396 and he held also that although Moosa Sait himself might have resisted the action by virtue of Madras Act XV of 1946, his sub -tenant, the petitioner, could not do so as he was not a terant within the meaning of the Act and Moosa Sait was not himself in possession oft he property. He, therefore, decreed the suit. In Suryanarayana v. : AIR1929Mad396 , the tenant was made a party to the suit as the first defendant. He did not contest the suit and he had vacated the premises in his occupation. If the position of Moosa Sait was the same as the position of the tenant in the Bombay case there can be no doubt that a decree in ejectment could have been properly passed against the petitioner under Section 41 of the Presidency Small Cause Courts Act. His petition, however, is not the same. He was not made a party to the suit, and there is no reason to believe that, if he had been made a party, he would have consented to a decree against the petitioner. It is argued for the petitioner that the suit under Section 41 of the Small Cause Courts Act against the petitioner alone is merely an attempt to evade the provisions of the Madras Buildings (Lease and Rent Control Act since, by virtue of the provisions of Section 7 of that Act Moosa Sait remains in possession even though his tenancy has been terminated. Section 7(1) of Madras Act XV of 1946 enacts that

(2.) THE civil revision petition is, therefore, allowed with costs.