ANIL KUMAR MUKHERJEE Vs. MALIN KUMAR MAZUMDAR

JUDGEMENT

(1.) THIS Rule under Article 227 of the Constitution of India came up before Mr. Justice S. K. Sen sitting singly and His Lordship by an order dated 14th January, 1960 referred the case to Division Bench for disposal as he felt that it was desirable that the point involved should be set at rest by a decision of Division Bench in view of two conflicting decisions of two learned Judges of this Court sitting singly, one by Mr. Justice Bachawat reported in (1) 1959 C. L. J. page 117 and the other unreported decision (2) of my learned brother Mr. Justice Banerjee.

(2.) THE point is about interpretation of the words 'final order' occurring in section 39 of the West Bengal Premises Tenancy Act, 1956 in the background of sub-section (3) of section 16 of that Act for deciding the maintainability of an appeal. In the present case the point arises in this way: The disputed premises is a ground-floor shop-room in premises No. 139/3, Russa Road, Calcutta, since named Shamaprosad Mukherjee Road. It belonged to a partnership firm named Estate Amulya Dhan Mullick and Krishna Dhan Mullick, and under that firm Dr. Anil Kumar Mukherjee is a tenant in respect of that room. It is common ground of both the parties that in respect of front portion of the said room, Malin Kumar Mazumder was in occupation. Malin Kumar Mazumder's own case is that at first the front portion was sub-let to him at a monthly rent of Rs. 30/- and later on the whole room was sub-let to him at a monthly rent of Rs. 75/- and he claimed to be the sub-tenant under Dr. Anil Kumar Mukherjee and gave notice to his sub-tenancy to the landlord under section 16 (2) of the West Bengal Premises Act.

(3.) PRESENT application under section 16 (3) of the Act has been made by Malin Kumar Mazumder before the Rent Controller, Calcutta, within two months of the date of issue of notice by him and he has made both the landlord and the tenant parties. The landlord appeared before the Rent Controller and denied that there was consent by him to the sub-letting either in writing or orally. The tenant Dr. Anil Kumar Mukherjee contended before the Rent Controller that he had not sub-let any portion of the room to Malin Kumar Mazumder. His case was that Malin Kumar Mazumder was a licensee in respect of the front portion of the room at first at the rent of Rs. 30/- and later on, at the rate of Rs. 75/- per month.