SAMAD MISTRI Vs. SK MD OMAR

JUDGEMENT

(1.) The Petitioners have obtained the present Rule against the order dated April 5, 1974, passed by the learned Judge, Fifth Bench, City Civil Court at Calcutta, allowing an application of the decree-holder opposite party No. 1 under Order XXI, Rule 97 of the Code of Civil Procedure for giving delivery of possession of the suit premises with Police help.

(2.) Golam Hossain, who was the judgment-debtor in the aforesaid execution case, was a monthly tenant in respect of one shop room, one workshop and another room at No. 277 Bepin Behari Ganguly Street. Sk. Md. Omar, opposite party No. 1, filed Ejectment Suit No. 69 of 1959 in the Fourth Bench of the City Civil Court at Calcutta against the said Golam Hossain, the Defendant No. 1 and ten others as Defendants Nos. 2 to 11, who were described as subtenants under Golam Hossain, The case of the Plaintiff was that the Defendant No. 1 was liable to be ejected on the ground of subletting within the meaning of Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956. The trial Court had struck off the names of the Defendants Nos. 2 to 11 from the records of the said ejectment suit. Thereafter, the trial Court decreed the suit in favour of the Plaintiff landlord. The Defendant No. 1 preferred F.A. No. 496 of 1961 in this Court. On August 1, 1967, D.N. Sinha C.J. and Arun, Kumar Mukherjee J. delivered their judgment in the said appeal finding, inter alia, that the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, would apply in the said case. The sub-tenancies having been created by the Defendant No. 1 before coming into force of the West Bengal Premises Tenancy Act, 1956, Section 13(1)(a) of 1956 Act would not apply. Their Lordships held that the Plaintiff in the said case was entitled to a decree against the Defendant No. 1 under Section 12(1)(c) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Such right, obligation and liability under the 1950 Act had been preserved by Section 40 of the 1956 Act. Their Lordships, however, held that the Defendant No. 1 was entitled to remain in that portion which was in his khas possession and which had not been sublet. Their Lordships, accordingly, remanded the case to the trial Court to find out the respective boundaries of the portion which was in khas possession of the Defendant No. 1 and that which was in possession of the sub-tenants. The appeal was kept pending.

(3.) Thereafter, the trial Court recorded the finding in terms of the aforesaid remand order and the first appeal again came up before the Division Bench consisting of Arun Kumar Mukherjee and Murari Mohan Dutt JJ. The learned Judges by their judgment dated June 9, 1971, confirmed the original decree of eviction of the Defendant No. 1 in respect of the portion of the premises in possession of his sub-tenants. But they allowed the appeal in part by permitting the Defendant-Appellant to retain possession of room No. 18 for which the Defendant-Appellant was to pay a rent of Rs. 5 per month. Their Lordships clearly recorded in their judgment that they were applying the proviso to Section 12(1)(c) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.