AMAR KISHORE GHOSE Vs. RAJAT KANTI BANERJEE

JUDGEMENT

(1.) THIS rule was obtained by the judgment-debtor and it is directed against an order dated 3rd february, 1973 rejecting an application under section 17d of the West Bengal premises Tenancy Act, 1956. The facts relevant for the present purpose are. as follows : -The petitioner was a monthly tenant under the opposite party in respect of premises No. 54a, Shyampukur Street, calcutta. The petitioner's tenancy was in respect of the entire house which consisted of 3 floors. In the year 1955 a suit was filed by the opposite party against the petitioner, being title Suit No. 1677 of 1955, for the eviction of the petitioner on the ground of default in payment of rent. The suit was decreed on 23rd May, 1956 one Gopendra Lal Roy was a subtenant under the petitioner in respect of the ground floor of the disputed premises. The West Bengal Premises tenancy Act, 1956 (hereinafter referred to as the 1956 Act)having come into operation in the meantime gopendra Lal Roy filed as application under section 16 (3) of the said Act, and an order was made thereon on 6. 5. 57 declaring him to be a direct tenant under the opposite party. After the ejectment decree was put into execution by the opposite party one Surendra Nath mitra, who was the father-in-law of the petitioner, filed a suit in the City civil Court, being Suit No. 360of 1958, for a declaration that he was a subtenant under the petitioner in a portion of the disputed premises and that the decree was not binding against him. That suit was dismissed by the trial court, and Surendra Nath Mitra having died in the meantime, his daughters and son preferred an appeal to this Court which was ultimately dismissed on September 1, 1969. It was found that the said Surendra Nath mitra was not a sub-tenant as alleged by him. It is the case of the opposite party that after the daughters and son of Surendra Nath Mitra lost the appeal in this Court they amicably vacated two rooms on the first floor of the disputed premises in favour of the landlord opposite party, who is admittedly in possession of the said two rooms at present. Section 17d was introduced in the 1956 Act by the West Bengal premises Tenancy (Second Amendment) Act (Act 34 of 1969) which came into force on the 14th November, 1969. Thereafter on 17th December 1969 the petitioner filed the application under section 17d of the Act as amended by the aforesaid amending Act. This application was rejected by the trial court on the ground that the defendant judgment debtor is not entitled to get any relief as possession of major part of the premises has been delivered to the plaintiff after the decree.

(2.) MR. Bagchi, learned Advocate appearing on behalf of the petitioner, has, in the first place contended that the landlord opposite party had taken forcible possession of the two rooms on the first floor and this possession was, therefore unlawful possession. He argued that there are three rooms in each floor in the disputed premises and the possession of the opposite party of the two rooms on the first floor being unlawful possession, the petitioner must deemed to be in possession of all the six rooms on the first and the second floor. He, therefore, contended that the opposite party was not in possession of the major part of the premises as wrongly held by the trial court. It is to be noticed however is that the case of the opposite party has been that he obtained possession amicably from the heirs of the aforesaid Surendra Nath Mitra after the dismissal of the appeal which was filed by them in this court. On behalf of the opposite party it was denied that they had obtained forcible possession as alleged by the petitioner. On this point the trial court has believed the evidence adduced on behalf of the opposite party got delivery of possession of the two rooms on the first floor from the sons and daughters of the aforesaid Surendra nath Mitra. This is a finding of fact which is binding upon me. I must therefore proceed on the basis that the opposite party has obtained possession of the said two rooms on the first floor of the disputed premises amicably from the heirs of Surendra Nath Mitra. In this connection another fact has also get to be taken into consideration. As has already been stated that one Gopendra Lal Roy was a sub-tenant under the petitioner in respect of three rooms on the ground floor. The ejectment decree was passed against the petitioner on the 23rd May, 1956. Shortly thereafter the said sub-tenant made an application under section 16 (3) of the 1956 Act and he obtained an order in his favour. Sub-section (2) of section 13 of the West Bengal premises Rent Control (Temporary provisions) Act, 1950 (hereinafter referred to as the 1950 Act) provided that where the tenancy of a tenant is determined otherwise than on the ground of the landlord's reasonable requirement for building or rebuilding or his own use and occupation the subtenant will become a direct tenant under the landlord. A similar provision has also been made in sub-section (5) of section 13 of the 1956 Act. The present suit having been filed at a time when the 1950 Act was in force there could not be any question cf serving any notice by the sub-tenant under section 16 of the 1956 Act. After the 1956 act came into force the sub-tenant gopendra Lal Roy made an application under section 16 of the said Act and an order was made declaring him to be a tenant under the landlord opposite party in respect of the ground floor of the disputed premises. The decree for ejectment against the petitioner having been passed before the said subtenant made the application under section 16 of the 1956 Act he become a direct tenant under the landlord opposite party by virtue of the provisions contained in section 13 (2) of the 1950 act. The statutory provision contained in section 13 (2) of the 1950 Act became applicable to the said sub-tenant as soon as the decree for eviction against the petitioner was passed, and soon as it was found that the aforesaid gopendra Lai Roy was a sub-tenant under the petitioner. It was contended on behalf of the petitioner that the elevation of the aforesaid sub-tenant to the position of a direct tenant under the opposite party was solely the result of an order under section 16 (3)of the 1956 Act and it had nothing to do with the decree for eviction which was passed against the petitioner. No doubt the order that was passed was one under section 16 (3) of the 1856 act, but as we have seen that as soon as the said Gopendra Lal Roy was found to have been a sub-tenant under the petitioner, together with the fact that there was a decree for eviction against the petitioner, the provisions of section 13 (2) of the 1950 Act came into play and Gopendra Lal Roy became a direct tenant under the opposite party.

(3.) IT was argued on behalf of the petitioner that in order to exclude the application of the provision of section 17d of the 1956 Act the decree holder must have recovered possession from the tenant in execution of the decree through court. I was contended that if possession is recovered by the landlord otherwise than in execution through court such recovery of possession will not bar the application of section 17d of the 1956 Act. In my view this would amount to reading something into the section which is not there. The relevant provision of 17d of the 1956 Act is as follows: -