RAM AWATAR SINGH Vs. KHAJAN SINGH

JUDGEMENT

(1.) This appeal is by the plaintiff and it arises out of a suit for declaration that the plaintiff is a subtenant under the defendant in respect of one shop room on the ground floor of premises No. 123 Chittaranjan Avenue, Calcutta. The plaintiff's case in short is that he has been a sub-tenant under the defendant in respect of the disputed shop room from before the commencement of the W. B. Premises Tenancy Act, 19-56 (hereinafter referred to as the Act). The tenancy is alleged to be held at a daily rent of Rs. 4. After the Act came into force, the plaintiff served a notice under Section 16 (2) of the Act upon the superior landlord Bhimraj Periwal Charitable Trust. The plaintiff then started a proceeding, being case No. 1038-A of 1956 under Section 16 (3). The Rent Controller held that the plaintiff was a sub-tenant. The defendant filed an application for review of the said order, whereupon the Rent Controller dismissed the plaintiff's application under Section 16 (3) of the Act. The plaintiff moved this Court under Article 227 of the Constitution and obtained a Rule. But the Rule was ultimately discharged on the ground that an appeal lay before the Court of Small Causes, Calcutta. The plaintiff thereupon preferred an appeal to the Court of Small Causes along with a petition under Section 5 of the Limitation Act for condonation of delay in filing the appeal. That application was rejected. The plaintiff thereafter started another proceeding, being Case No. 309-B of 1963 against the defendant before the Rent Controller for fixation of fair rent. The application was resisted by the defendant who claimed that the plaintiff was a licensee. The Rent Controller held that the plaintiff was a sub-tenant and fixed the rent. The defendant preferred an appeal before the Court of Small Causes and the plaintiff also filed a cross-objection, contending that the rent fixed by the Rent Controller was too high. The appeal was allowed and the cross-objection was dismissed. The plaintiff filed a revisional application to this Court against the said order. In the meantime, the defendant filed a petition under Section 41 of the Presidency Small Cause Courts Act and it was registered as Suit No. 2449 of 1963. The plaintiff contested the said suit and the suit was dismissed. Thereupon the defendant moved this Court and the application under Section 41 was allowed. It is alleged by the plaintiff that on July 23, 1966 he came to know for the first time that the revisional application which was filed by him and on which Civil Rule Nos. 1557 and 1558 of 1956 were issued were discharged as not pressed. The plaintiff further alleged that he never instructed his lawyer not to proceed with the said Rules. In these circumstances, the plaintiff filed the instant suit out of which this appeal arises for declaration of his tenancy right.

(2.) The suit was contested by the defendant and his defence was that the plaintiff was never a sub-tenant under him. According to the defendant he took lease of the disputed shop room from the superior landlord in 1944. On account of his illness in 1953 the defendant had to go away to his native place in the Punjab and at that time he asked the plaintiff to look after the shop on condition that the plaintiff would pay Rs. 4 to the defendant per day, excluding holidays and days on which the shop would remain closed. The defendant thus claimed that the plaintiff was a mere licensee.

(3.) Several issues were framed in the suit of which one was whether the suit was barred by res judicata in view of the earlier decisions in course of various proceedings between the parties. This issue was answered by the trial court in the negative and in this court the learned Advocate for the appellant did not advance any argument on this issue. On the other issue whether the plaintiff was a sub-tenant or a licensee, the trial court found that the plaintiff was a licensee. The trial court accordingly dismissed the suit. Against this decision the plaintiff has come up in appeal.