RAI MOHAN CHOWDHURY Vs. S K DUTTA GUPTA

JUDGEMENT

(1.) THIS is a revisional application directed against an order passed under section 16 (3) of the West Bengal premises Tenancy Act, 1956. One Haridas Banerjee was a tenant in respect of two shop rooms under opposite party No. 2, S. K. Paul at the rent of Rs. 16/- per month. In respect of one of the shop rooms the petitioner Rai Mohan Chowdhury became the subtenant under Haridas Banerjee. After the West Bengal Premises Tenancy Act, 1956 had come into force, the petitioner gave notice of the sub-tenancy and filed an application under section 16 (3) for being declared as a direct tenant in respect of the shop room in his possession and for fixation of fair rent for the shop rooms. The tenant Haridas Banerjee was not made a party to this application. The Rent Controller by his order dated 30th July, 1957 allowed the application and declared that the petitioner has become a direct tenant and fixed Rs. 12/- per month as the fair rent in respect of the shop in the occupation of the petitioner. Opposite party No. 2, the superior landlord, filed an appeal; in the memorandum of appeal several grounds were taken, for instance, that the application under section 16 (3) was not maintainable as no notice under section 16 (2) had been issued, that the application was not maintainable because the tenant of the first degree, Haridas Banerjee, had not been joined as a party and that the rent fixed by the Rent Controller was unduly low and Rs. 24/- which was the rent payable by the petitioner to Haridas Banerjee should have been fixed as the fair rent. The learned appellate Judge did not deal with the point whether the application was maintainable in the absence of the tenant of the first degree As regards service of notice under section 16 (2) he observed that though in the application under section 16 (3) the petitioner, the sub-tenant, had not averred that the notice required under section 16 (2) was duly served, still the service return of such notice was proved before the Rent Controller and, therefore, the objection that no notice was served could not be accepted. As regards the fair rent, the learned Judge accepted the objection of opposite party No. 2 and fixed Rs. 24/-- as the fair rent.

(2.) AGAINST that decision the petitioner, who was the sub-tenant, has filed the revisional application. His contention is that the rent at Rs. 24/-as fixed by the learned appellate Judge was too high. It appears to me, however, that the order of the courts below must be held to be without jurisdiction in view of the fact that the tenant of the first degree, Haridas Banerjee was not made a party. Under section 16 (3) the Rent Controller has to make the declaration that the tenant's interest in so much of the premises as has been sub-let has ceased and the sub-tenant has become a direct tenant thereof under the superior landlord: the Rent Controller has also to fix the fair rent payable by the tenant for the remaining portion of the premises and by the sub-tenant who is declared to be the direct tenant. The very fact that the Rent Controller has to make all these orders would show that the tenant of the first degree is a necessary party in a proceeding under section 16 (3 ). If in the absence of the tenant, any order is made that the sub-tenant has become a direct tenant, the tenant of the first degree would not be bound by that order; for instance, in this case Haridas Banerjee can still claim that Rai Mohan Chowdhuri, the petitioner, is the tenant directly under him and can sue for arrears of rent and ejectment. Mr. Naliniranjan Bhattacharyya appearing for the petitioner urged at one stage that in this case the tenant of the first degree was not a necessary party, because the sub-tenancy was co-extensive with the tenancy. This, however, does not appear to be correct, because it is clear from the judgment of the lower appellate court that Haridas Banerjee was the tenant in respect of two shop rooms and only one of them was sub-let to the petitioner. Therefore, it was necessary not only to declare that Haridas Banerjee's tenancy in one of the shop rooms had ceased and the petitioner has become direct tenant but also to fix the fair rent payable by Haridas Banerjee for the remaining shop room.

(3.) I may also point out that some other conditions are to be satisfied before an order under section 16 (3) could be passed, and these were not considered by the learned Controller; for instance, it is necessary that there should be no written consent of this superior landlord to the creation of the sub-tenancy and that the superior landlord should deny that he gave even oral consent. These points were not at all considered by the Rent Controller. Mr. Bhattacharyya has urged that the case should be sent back to the Rent Controller so that the tenant of the first degree Haridas Banerjee may now be made a party and the application disposed of according to law. But Haridas Banerjee ought to have been made a party when the application was originally filed. There is a time limit for filing such an application, because it must be filed within two months of the sub-tenant issuing notice under section 16 (2 ). After more than three years have passed the tenant could rightly refuse to be added as a party to the application because naturally the tenant would lose by the declaration that the sub-tenant has become a direct tenant of the landlord. In the circumstances, even though the petitioner asked for the relief by way of reduction of the fair rent assessed, I am constrained to hold that the orders were altogether without jurisdiction and, therefore, all the orders must be set aside. I must also observe that opposite party No. 1, Sri S. K. Dutta Gupta, the Subordinate Judge, who disposed of the appeal, was unnecessarily made a party and has had to appear through the learned Government Pleader. In the circumstances, the petitioner must pay the costs of this Court to opposite party No. 1. This Rule is, therefore, made absolute and the order of the learned Controller as well as of the appellate Judge is set aside, and it is ordered that the application under section 16 (3) do stand dismissed. Opposite party No. 1 will get his casts from the petitioner.