(Delivered by the Chief Justice.)
This is an appeal against an order of Krishnaswami Nayudu, J., passed on 17th July 1951 by which he disposed of 4 applications in C.S No. 419 of 1947 on the Original Side of this Court. Though there were four applications before Krishnaswami Nayudu, J., the appeal relates only to one of the applications in which the respondent is the only party interested.
The facts necessary for disposal of this appeal are as follows: Premises Nos. 177 to 179, Mount Road, Madras, were originally leased to Bosotto Brothers Ltd., by the then owners of the building, Jamal Mahomed. On 22nd May 1946, the Express Estate Ltd., the appellant before us, purchased the premises. By an order dated 13th June 1947, the Government exempted the building from the operation of the Madras Buildings (Lease and Rent Control) Act, 1946. On 26th September 1947, the appellant filed a suit, C.S No. 419 of 1947 on the Original Side of this Court, for recovery of possession from Bosotto Brothers Ltd., and also for the recovery of rent at an enhanced rate. Pending the suit, the Government, by a subsequent order dated 11th March 1950 cancelled their prior order exempting the premises from the Rent Control Act. On 31st July 1950, a decree was passed in the suit for possession and for enhanced rent till deliverey of possession. The appellant filed an application for execution of the decree, E.P No. 233 of 1950. After notice to Messrs. Bosotto Brothers Ltd., the judgment-debtor in the case, the application was ordered. When the representative of the appellant went along with the bailiff to take delivery of possession, he found that portions of the premises were in occupation of 4 persons, one of whom was the respondent before us, namely, the Modern Furnishing House. The said persons obstructed the delivery of possession and claimed that they were entitled to remain in possession in their own right. Thereupon the appellant filed an application for removal of obstruction, E.A No. 788 of 1951. The learned Judge dismissed the application on the ground that the obstruct ors were entitled to remain in possession, because, the decree for possession could not be executed on account of the provisions of S. 7 of Madras Act XXV of 1949 (which had replaced the Act of 1946).
The reasoning of the learned Judge was shortly as follows: Under S. 7 (1) of the Rent Control Act, a tenant shall not be evicted in execution of a decree or otherwise except in accordance with the provisions of that section. The expression “tenant” in S. 7(1) of the Act does not mean and include only a tenant in actual possession but will also include a tenant in constructive possession with the result that even though a tenant might have vacated a portion of the building and had let in sub-tenants in other portions of the building, the tenant must be deemed to be in constructive possession of the entire premises, and there can be no execution of a decree for ejectment against such a tenant.
With respect to the learned Judge, we think he has overlooked one important fact in this case. Whether in actual possession or in constructive possession, there can be no doubt whatever that the tenant of the premises was Bosotto Brothers Limited. It is common ground that Bosotto Brothers Limited did not raise any objection to the execution of the decree for possession. It may be that they could have raised an objection under S. 7 (1) of the Rent Control Act, but actually they did not. After notice to them, a final order for execution was passed by this Court. The question is, can the respondent who admittedly was a sub-tenant of Bosotto Brothers Limited having been let into possession by them sometime in 1949 when the ejectment suit was pending, be heard to say that the decree cannot be executed against them? It was contended on behalf of the respondent company that as they claimed under Bosotto Brothers Limited they could raise all objections which Bosotto Brothers Limited themselves could have raised to the execution and they could take advantage of S. 7 of the Rent Control Act, advantage of which could have been taken by Bosotto Brothers Ltd. We do not agree with this contention. The right given by S. 7(1) of the Act is expressly given to the tenant and the definition of “tenant” in S. 2 (4) of the Act would not include a person placed in occupation of a building by its tenant, that is, a person in the position of the respondent. While therefore S. 7(1) cannot, according to a proper construction of its language, apply to the respondent and confer any rights on him, we cannot permit the respondent to get the same benefit indirectly on the ground that they claim under Bosotto Brothers Ltd. We reject this contention.
Reference was made to an amendment to S. 2(3) of the Act by Act VIII of 1951. By S. 3 of the Act, an Explanation was inserted after the definition of “landlord” in S. 2(3) of the Act. It ran as follows:
“A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant,”
In our opinion, this Explanation would not help the respondent. It may be that if Bosotto Brothers Ltd. wanted to evict the respondent under the, provisions of the Act, the respondent would be entitled to the protection afforded by S. 7 (2) of the Act. That is to say, the respondent could not be evicted except on one of the grounds mentioned in that sub-section; for example, failure to pay rent, causing damage to the premises, etc. Except to this extent, we do not think the effect of the amendment in any way affects the rights of the original landlord. The effect of the Explanation is certainly not to enable a sub-tenant to raise an objection to being evicted by the landlord either under the provisions of the Rent Control Act or otherwise, as for example, in execution of a decree for possession. The expression “tenant” in S. 7(1) would not include a sub-tenant in relation to the original landlord.
Reference may be made to the recent ruling of a Division Bench of this Court in Devaraja Bhatt v. V.S. Raja(1) [which included Krishna-swami Nayudu J.] in which it was held that the Rent Control Act does not recognise any rights in a subtenant. Govinda Menon J. delivering the judgment of the Bench observed as follows:
“Under the Madras Buildings (Lease and Rent Control) Act, a sub tenant as such is not recognised and if a landlord brings a suit in ejectment a sub-tenant let into possession cannot raise any question and submit that he has a status under the Act which should be safeguarded by its provisions.”
The insertion of the Explanation does not make any difference.
In this view, the appeal must be allowed and the order of the learned Judge dismissing the application of the decre-eholder for removal of obstruction should be set aside. There will be an order directing the removal of the obstruction caused by the respondent. The appellant will be entitled to the costs of this appeal. The respondent will have time to deliver possession till 2nd January 1953.
V.C.S