SURENDRA NATH MUKHERJEE Vs. LILAMOHAN SINGH ROY

JUDGEMENT

(1.) Respondent No. 2, Abdul Monsur, was the owner of Premises No. 16 Chakraberia Road, North, and he let out the said premises to respondent No. 3 Abdul Hamid at a monthly rental of Rs. 35/-. In or about September 1946, the tenant Abdul Hamid sublet the entire premises to the appellant Surendra Nath Mukherjee who is still in actual occupation of the same. On 8-8-1944, the landlord Abdul Monsur duly gave to his tenant Abdul Hamid a notice to quit asking him to vacate the premises with the end of August 1944 on the allegation that the premises were required by him bona fide for his own use and occupation. The landlord Abdul Monsur applied for and obtained from the Rent Controller on 3-8-1945 the necessary permission to sue for ejectment under the Calcutta House Rent Control Order 1943 which was then in force. No suit, however, was brought until 1-3-1947. In the meantime the Rent Control Order of 1943 had expired and the Calcutta Rent Ordinance of 1946 had come into force on and from 1-10-1946 but the plaintiff Abdul Monsur did not take any fresh permission under this ordinance and it was not also his case -- as it could not be under the law -- that the permission, obtained under the Rent Control Order of 1943, would be available for the purposes of the present suit. The suit was contested by the sub-tenant defendant No. 2. Defendant No. 1 filed a written-statement admitting his sub-letting of the entire premises to defendant No. 2 and, although he raised some other defences, he did not eventually appear at the trial.

(2.) On 9-9-1947, the plaintiff Abdul Monsur sold the disputed premises to the present respondent No. 1, Lila Mohan Singha Roy, who, on his own application, was added as a co-plaintiff to the pending suit on 25-2-48. Thereafter, the suit proceeded and eventually it was dismissed so far as the claim for ejectment and mesne profits was concerned, the learned Munsif merely passing a decree for rent for August 1949 which was also a part of the claim in suit. On appeal, this decision was affirmed by the learned Additional Subordinate Judge but, on second appeal to this Court, the case was remanded to the trial Court for re-hearing according to law. This re-hearing before the learned Munsif again resulted in a dismissal of the claim for ejectment and mesne profits but, on appeal, that decision was reversed by the learned Subordinate Judge who gave the added co-plaintiff a decree for ejectment and mesne profits in addition to the decree for rent, already made by the learned Munsif. Hence this appeal by the subtenant defendant.

(3.) Before passing on to the rival contentions of the parties in this appeal, it is necessary to state that, on the previous occasion, the decree for ejectment and mesne profits was refused by the two Courts below really on the ground that, in the absence of a permission from the Rent Controller under Section 13, Calcutta Rent Ordinance 1946, the suit for ejectment, wherein one of the grounds taken was bona fide requirement of the disputed premises for the landlord's own use and occupation, was not maintainable. Indeed, it appears clear that that was the very basis of the judgments of the two Courts below which were ultimately set aside by this Court in the second appeal, wherein the order of remand and re-hearing of the suit according to law was made.