BHUPESH CHANDRA DUTTA Vs. M N BOSE

JUDGEMENT

(1.) This is a revisional application under Section 115, Civil P. C., from the order of the learned Judge, 6th Bench of the Small Cause Court, Calcutta dismissing an application under Section 13(2), Rent Control Act, 1950,, on the ground that such an application is not maintainable in a summary proceeding for delivery of possession and allowing an application under Order 21 Rule 97, Civil P. C., and directing that the plaintiff decree-holder be put in possession of the premises with police help, if necessary. The premises in question, viz., 28A Mohan Bagan Lane, belonged to the opposite parties Nos. 1 and 2, Dr. M.N. Bose and another. Opposite party No. 3 Sasti Charan Sen was a direct tenant under the landlords opposite parties Nos. 1 and 2. The petitioner Bhupesh Chandra Dutt is a sub-tenant in respect of a portion of the premises in question. The landlords obtained an ejectment decree against the tenant opposite party No. 3 in Suit No. 493 of '1951 of the 6th Bench of the Small Cause Court, Calcutta. The grounds on which the ejectment was sought and granted were, firstly, that the tenant was in arrears, and secondly, that he had sublet a considerable portion of the premises to sub-tenants who had been in occupation for more than seven months. When the landlords tried to obtain possession of the premises they were resisted by the petitioner Bhupesh Chandra Dutt who claimed to have acquired a tenancy directly under the landlord under the provisions of Sub-section 2, Section 13, Rent Control Act, 1950. The landlords accordingly filed an application under Order 21, Rule 97, Civil P. C. and the petitioner filed an application under Section 13(2), Rent Control Act, pleading that he was a lawful sub-tenant and therefore should be deemed to be a tenant directly under the landlord, and so the landlord could not obtain delivery of possession against him. The learned Judge held that the sub-tenant was to obtain relief by a properly framed suit in a court of competent jurisdiction and that the application under Section 13(2) did not lie in a court of summary jurisdiction for delivery of possession. He allowed the application" under Order 21 Rule 97 Civil P. C. Against that order, the sub-tenant Bhupesh Chandra Dutt has filed this revisional application, contending that the court below acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to go into the question of the right of the sub-tenant under Section 13(2), Rent Control Act. This is the only point for consideration in this revisional application.

(2.) Under Section 13(2), Rent Control Act, 1950

(3.) The learned Advocate appearing for the opposite parties has urged that even if the court below has made a mistake of law" the mistake cannot be remedied in the revisional application, because there is nothing to show that the court acted beyond its jurisdiction, or did not exercise the jurisdiction lawfully vested in it. As to the scope of Section 115, there are contradictory rulings one of the latest on the point being -- 'Venkatagiri Ayyangar v. Hindu Religious Endowment Board', Mad, 76 Ind App 67 (P.C.) wherein it was held that where a court below has gone wrong in respect of an established provision of law the High Court under s. 115, Civil P. C., may always intervene. In this case also, the Court below has made a mistake as to the provision of law, and it is also against all ideas of, justice that a subtenant who has a right to remain in a part of, the premises should first be turned out and then be compelled to file a suit for establishing his right. Accordingly this Rule is made absolute and the order of the court below is modified; while the order dismissing the independent application under s. 13(2), Rent Control Act, 1950, is affirmed, the order allowing the application of the landlord under Order 21, Rule 97, Civil P. C. is set aside and the court below is directed to dispose of the application according to law after giving the petitioner an opportunity to contest the application by proving his right, if any, under Section 13(2), Rent Control Act. There will be no order as to costs.