JATINDRA MOHAN DAS Vs. KHITIPATHINATH MITRA

JUDGEMENT

(1.) THE rule was issued on the application of the petitioner who was a sublessee of premises No. 81 Pataldanga Street, Calcutta. Opposite party No. 2 was the lessee and Opposite party No 1 was the landlord. On 4th August 1947 the landlord gave a notice to his tenant opposite party No. 2 to quit by the last date of August 1947. As the premises were not vacated and peaceful possession delivered the landlord on 10th October 1947 brought a suit in ejectment at the Calcutta Court of Small Causes being Suit No. 5772 of 1947. The suit was decreed on 8th March 1948 by consent whereby the tenant agreed to vacate by 9th September 1948. Opposite party No. 2 brought a suit in the Original Side of this Court being Suit No 3079 of 1948 for a declaration that the ejectment decree was null and void. In that suit by consent it was ordered in September 1948 that opposite party No. 2, the tenant, was to give up vacant possession on 31st January 3949. It is said that opposite party No. 2 has now given up possession. On 24th January 1949 the petitioner who was the sub tenant in portion of the premises filed an application before the Court of Small Causes purporting to be under Section 11(3) and Section 18, West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. It was not in execution as the petition itself shows as also the consent decree, that there was no execution proceedings pending at the time. The Small Cause Court Judge on 1st February 1949 dismissed the application on contest but without costs holding that the provisions of Section 18 did not apply to consent decree and further that the petitioner had no locus standi to file an application under Section 18 and thereby make a prayer before the Court for varying the decree which was passed on confession. Against this order a petition in revision was filed and the present rule was issued.

(2.) THE main question which arises in this case is whether the petitioner has locus standi to ask the Court under Section 18 of the Act to vary or rescind the decree itself. It appears that in a decision in the case of Brojendra Kumar v. Moslem Ali Molla in Civil Revn. case No. 465 of 1949 dated 12th May 1949 : (A. I. R. (36) 1949 Cal. 610), our learned brother Sen J. made an obiter dicta that a sub -tenant could come under Section. 11 (3) for variation or rescinding of a decree under Section 18 of the Act. It was not necessary at all in that decision to go into that question. Section 18 is a section which vests a Court with certain powers and does not in any other way interfere with ordinary civil law as to the rights of parties. Under the ordinary civil law, a person who is not a party to a suit or proceeding has no right to come to the Court to have the decree in that suit varied or rescinded and a perusal of Section 18 would be quite sufficient to show that no such new right was conferred by that section upon any third party. Section 11 (3) of the Act has conferred some independent rights to a sub -tenant, provided his case is within that section, to claim a statutory tenancy under the landlord under certain circumstances. But nowhere in this Act is there any provision which entitles such a subtenant to intervene in any proceedings between other parties, namely, the landlord and the tenant. How this right given to him is to be enforced by him or used as a shield by him is a matter with which we are not at present concerned and so we express no opinion. The sub -tenant not having any right to intervene in a proceeding between the landlord and the tenant under the Act itself if he claims any such right it must be under the general law and it may be at once said that under the general law he has no such right. Therefore a subtenant has no right when he claims a statutory tenancy under Section 11 (3) to intervene and ask for a variation or rescission of the decree. It is immaterial whether such a decree is a consent decree or a decree on contest or ex parte. We pass no opinion whether a consent decree can be varied or rescinded under this section at the instance of any of the parties to the suit.

(3.) THE rule is, therefore, discharged, Each party to bear his own costs.