UDIT KUMAR MUKHERJEE Vs. KHAITAN CONSULTANTS LTD

JUDGEMENT

(1.) The appellant claims to be a sub-tenant under the tenant against whom the landlord obtained a decree for eviction on 18th of December, 1998 in Ejectment Suit No. 338 of 1998, This decree was put into execution on 24th March, 1999. The decree was executed through police help on 4th July, 2001 excepting the portions occupied by the alleges(sic) sub-tenants/appellants in view of the fact that the appellants/sub-tenants had filed an application under Order 21 Rule 101 of the Code of Civil Procedure (CPC), being Misc. Case No. 3824 of 1999 on 2nd of May, 1999. During the pendency of the said Misc. case, on 10th of July, 2001, the West Bengal Premises Tenancy Act, 1997 (1997 Act) came into force repealing West Bengal Premises Tenancy Act, 1956 (1956 Act). The sub-tenant alleged to have given a notice under section 26(2) of 1997 Act on 16th May, 2003 and applied before the Rent Controller under section 26(3) of the 1997 Act for a declaration that the sub-tenant had become a direct tenant under the superior landlord. On this ground the appellant had prayed for stay of further proceedings of Misc. Case No. 3824 of 1999 till the decision by the Rent Controller on the said application under section 26(3) of the 1997 Act. But this prayer was rejected by the learned Court below on 30th August, 2003 out of which the present appeal arises. Submission on behalf of the Appellant:

(2.) Mr. Sanyal, learned Counsel appearing on behalf of the appellants, had contended that section 26(3) is independent of section 26(2). According to him, as soon such an application is made before the Rent Controller, the Rent Controller has no alternative but to decide the question. Therefore, a right has been created in the sub-tenant to get his right adjudicated and such right being the foundation of the claim made by the sub-tenant to resist the execution, the execution proceedings cannot proceed. Inasmuch as this question cannot be decided by the executing Court and as such there is no alternative but to wait till the decision is given by the competent authority. According to him, all questions raised in the proceedings under Order 21 Rule 97 CPC are to be decided in the same proceedings in view of Rule 101 CPC. The Court cannot avoid its jurisdiction without determining the question relevant for the purpose, namely, to ascertain as to whether the sub-tenant is claiming on the basis of his right independent of the tenant to resist execution, whether the sub-tenant has become a direct tenant by reason of service of notice under section 26(2) of the 1997 Act can be determined only by the authority under section 26(3) of the said Act, not by the executing Court, upon which the decision of the competent authority is binding. He relied on a decision in Shefali Roychowdhury & Ors. vs. A.K. Dutta, AIR 1976 SC 1810 to contend that the right conferred under section 26(2) is a new right created in favour of the sub-tenant under the new Act being the 1997 Act which cannot be denied to the sub-tenant even though the decree has been passed in view of the fact that the said question has been raised before the decree is executed as against the sub-tenant. According to him, eviction of the tenant will not affect the right of a sub-tenant conferred by him under section 26(2) to obtain an adjudication of his status under section 26(3). Therefore', the order appealed against should be set aside. Submission on behalf of the Respondent:

(3.) Mr. Anindya Mitra, learned Senior Counsel, on the other hand, contended that the argument advanced by Mr. Sanyal is fallacious. According to him, unless the sub-tenant can claim any right under-section 26(2), he has no right to obtain the adjudication under section 26(3). Section 26(2) would be available to a sub-tenant under a tenant provided the relationship between the superior landlord and the tenant continues or exists. Section 26(2) has no manner of application in a case where the relationship between the superior landlord and the tenant had ceased. According to him, by reason of the definition of "tenant" under section 2(g) of the 1997 Act [section 2(b) of the 1956 Act] the tenancy continues between the landlord and the tenant despite termination of tenancy if the tenant continues in occupation until the decree of eviction is passed. According to him, by reason of such definition, the tenancy ceased with the passing of the decree. Admittedly, in the present case, the decree has become final and has already been partly executed and would have been completely executed but for the application under Order 21 Rule 101 CPC by the appellants/sub-tenants. Therefore, in the absence of any relationship between the landlord and the tenant, the sub-tenancy cannot continue. It also ceased with the cessation of the tenancy under whom the sub-tenancy is claimed. In such a situation, section 26(2) has no manner of application. 3.1. The second point he had raised is that by reason of section 45 sub- section (2), the provision of 1997 Act would not be applicable. Inasmuch as the suit having been decreed before the 1997 Act came into force, the provision of the 1997 Act would not apply. The 1997 Act does not apply to a pending suit commenced before the commencement of the 1997 Act. Therefore, the benefit of section 26 would not be available to the sub-tenant. He also distinguished the decision in Shefali Roychowdhury (supra) on the ground that in that case there was no suit for eviction, pending between the tenant and the superior landlord. The tenancy between the tenant and superior landlord was governed by 1956 Act, though the suit for eviction between the tenant and the sub-tenant was governed by the 1950 Act. But this would not prevent the sub-tenant from claiming right under section 16(3) of the 1956 Act. On facts, the ratio laid down therein is clearly distinct and different and is distinguishable. The Apex Court had proceeded on the basis of a new right created under the 1956 Act, which was not available under the 1950 Act. But this is not a case here where the right contemplated under section 26(2) was very much available under the 1956 Act. Therefore, this decision does not apply. 3.2. In support of his third point, he had relied on a decision in Laxmi Debt Loyalka vs. Frank Ross & Co. & Ors., 1961 CLJ 168: 65 OWN 167 to support his contention that the relationship between the superior landlord and the tenant and that between the tenant and the sub-tenant can be governed by two different statutes and by reason of the relation between the tenant and the sub-tenant under one statute, the relationship between the superior landlord and the tenant governed by another statute can be eclipsed. He also relied on the decision in Biswanath Poddar vs. Archana Poddar & Anr., 2001 8) SCC 187 relied upon by the learned Trial Court to contend that the decree passed by the tenant is binding on the sub-tenant and, therefore, the right of the sub-tenant, if there be any, ceased with the passing of the decree. Therefore, the appeal should be dismissed. Whether 1997 Act applies to pending proceedings :