M N GHOSAL Vs. P K BANERJEE

JUDGEMENT

(1.) THE petitioner before us is an applicant under sec. 16 (3) of the new West Bengal Premises Tenancy Act of 1956 (West Bengal Act XII of 1956 ). He claims to be a sub-tenant in respect of the disputed premises, comprising a portion of Municipal premises No. 7/1-B, Russa Road, Bhowanipore, renumbered as 44-B, Syamaprosad Mookerjee Road. On November 26, 1956, the petitioner applied to the Rent Controller, Calcutta, for, inter alia, a declaration of his direct tenancy under the above section The application was registered as Case No. 2640b of 1956 and, in the said proceeding and pending the same, he applied for the issue of a temporary injunction, restraining opposite party No. 1, who is the owner of the disputed premises, from executing a decree for ejectment, obtained by him (opposite Party No. 1) against the predecessor-in-interest of opposite parties Nos. 2 to 5 (who, according to the petitioner, were his immediate landlords) as tenants under the said opposite party No. 1 and from ousting the petitioner thereby. That application, which was made on February 20, 1957, was rejected by the Rent Controller and, feeling aggrieved, the petitioner moved this Court and obtained the present Rule.

(2.) THE relevant facts lie within a short compass and they are as follows: two persons, Sanat Kumar Chatterjee and Jnanendra Nath Chatterjee, who were the predecessor-in-interest of opposite parties Nos. 2 to 5, were the tenants of the disputed premises under the owner Debendra Nath Banerjee, predecessor of opposite party No. 1. In Title Suit No. 424 of 1941 of the Third Court of the Munsif at Alipore, the said Debendra Nath Banerjee obtained a decree for ejectment against his said two tenants. That decree was passed in August, 1942, and it was put into execution in Title Execution Case No. 46 of 1943 of the said court on April, 9, 1943. Execution was resisted by the judgment-debtors and, on their death, by their heirs, opposite parties Nos. 2 to 5, and, thereafter, by the present petitioner who claimed to be the sub-tenant under them, and the execution case is still pending. The objections of the judgment-debtors and their heirs have failed and the petitioner's initial attempt to have a declaration of direct tenancy under sec. 11 (3) of the West Bengal Premises Rent Control Act of 1948 in Title Suit No. 41 of 1949 of the First Court of the Subordinate Judge at Alipore has also failed. Thereafter, he has filed another Title Suit No. 100 of 1955 in the court of the Second Munsif at Alipore for declaration of his direct tenancy under sec. 13 (2) of the Rent Control Act of1950. That suit is still pending but his application for a temporary injunction, restraining opposite party No. 1 from proceeding with the above Title Execution Case No. 46 of 1943, was dismissed upto this Count. Meanwhile, however, as already stated, on November 26, 1956, the petitioner has applied to the Rent Controller, Calcutta, for declaration of a direct tenancy under opposite parly No. 1 under sec. 16 (3) of the West Bengal Premises Tenancy Act of 1956 (which came into force on 31st March, 1956) and pending 'the proceeding, started on that application, he has applied for a temporary injunction which, as stated above, has been rejected by the Rent Controller.

(3.) THE Controller has taken the view that, as, under the new Act of 1956, a tenant, against whom a decree for ejectment has been obtained cannot be regarded as a tenant and as, without a tenant, there cannot be a sub-tenant, the petitioner cannot claim to be a subtenant and his application for temporary injunction would, therefore, fail for want of a prima facie case. The Controller was further of the opinion that he, as Rent Controller, had no power to issue a temporary injunction, particularly to restrain execution of a decree for ejectment, validly obtained. On both these grounds, he has dismissed the petitioner's application.