MOHAMMED HAJI GANI Vs. AMOHSIN RAJA

JUDGEMENT

(1.) THE question in this Civil Revision Petition is whether the respondent was entitled to maintain a suit for the ejectment of the petitioner under Section 41 of the Presidency Small Cause Courts Act, in view of the provisions of the Madras Buildings (Lease and Rent Control) Act of 1946 (Madras Act XV of 1946). THE respondent had let No. 5, Anderson Street, George Town, Madras, to one M.S. Moosa Sait., and Moosa Sait had sublet a godown attached to No. 5, Anderson Street to the petitioner. Before the application was made under Section 41 of the Presidency Small Cause Courts Act the respondent had sent a notice to Moosa Sait terminating his tenancy. THE learned Small Cause Court Judge held that Section 41 of the Presidency Small Cause Courts Act was applicable to a sub-tenant, and in support of his conclusion referred to the case of Suryanarayana V/s. Narasimha (1929) 56 M.L.J. 394 and he held also that although Moosa Sait himself might have resisted the action by virtue of Madras Act XV of 1946, his sub-tenant, the petitioner, could not do so as he was not a terant within the meaning of the Act and Moosa Sait was not himself in possession oft he property. He, therefore, decreed the suit. In Suryanarayana V/s. Narasimha (1929) 56 M.L.J. 394, the tenant was made a party to the suit as the first defendant. He did not contest the suit and he had vacated the premises in his occupation. If the position of Moosa Sait was the same as the position of the tenant in the Bombay case there can be no doubt that a decree in ejectment could have been properly passed against the petitioner under Section 41 of the Presidency Small Cause Courts Act. His petition, however, is not the same. He was not made a party to the suit, and there is no reason to believe that, if he had been made a party, he would have consented to a decree against the petitioner. It is argued for the petitioner that the suit under Section 41 of the Small Cause Courts Act against the petitioner alone is merely an attempt to evade the provisions of the Madras Buildings (Lease and Rent Control Act since, by virtue of the provisions of Section 7 of that Act Moosa Sait remains in possession even though his tenancy has been terminated. Section 7(1) of Madras Act XV of 1946 enacts that A tenant in possession of a building shall not be evicted therefrom, whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, except in accord-ance with the provisions of this section. None of the provisions which follow would entitle the respondent to evict Moosa Sait and the only provision that has any relevance to the facts of this case is Clause (it)(a) of Sub-section (2) of Section 7 which provides that a tenant within the meaning of the Act may be evicted if he has transferred his right under the lease or sub-let the entire building or any portion thereof after the commencement of the Act without the written consent of the landlord. In the present case it is not disputed that the petitioner was let into possession by Moosa Sait before the commencement of the Act. It is argued by learned Counsel for the respondent that the provisions of Section 7 do not help the petitioner because Moosa Sait is not in physical possession and there can be no question of evicting him. THEre seems to me no substance in this contention. Section 7 provides among other things that a tenant can be evicted if he lets in a sub-tenant after the commencement of the Act without the written consent of the landlord. By implication, therefore, he cannot be evicted merely because he has let a sub-tenant into possession before the commencement of the Act; and, notwithstanding the fact that his tenancy has been terminated, his possession through the sub-tenant cannot be disturbed. THE view expressed by the learned Small Cause Court Judge that Moosa Sait could have himself resisted the action is, therefore, in my judgment, correct; but he does not seem to me to have drawn the proper inference from it. If Moosa Sait is entitled to remain in possession through his sub-tenant, the sub-tenant himself cannot be evicted by the landlord. A landlord can only maintain a suit for eviction of a sub- tenant if he is himself entitled to immediate possession, which, in the present case he is not, or if he is seeking to recover possession on behalf of the tenant which, in the present case, he does not pretend to be doing.

(2.) THE civil revision petition is, therefore, allowed with costs.