S.N Talapatra v. M/S Bengal Bonded Warehouse & Anr. Opposite Parties.

Das, J.:— This Rule was obtained against an order of Mr. S.K Roy, learned Judge of the Presidency Court of Small Causes,. Sixth Bench, rejecting an application filed by the petitioner purporting to be under Order 21, rule 100, section 144 of the Code of Civil Procedure and section 13(2) of the Rent Control Act, 1950. The admitted facts are that the opposite party No. 2 was a tenant under the opposite party No. 1. The petitioner is a sub-tenant under opposite party No. 2 in respect of a portion of the premises held as tenant by the opposite party No. 2 under opposite party No. 1.

2. On 10.1.1951, the opposite party No. 1 obtained a decree in ejectment against opposite party No. 2 on the ground of default in payment of rent after service of a notice to quit. In execution of that decree the opposite party No. I wanted to eject the petitioner from the disputed property, but was resisted by the petitioner in taking possession. On the next date the opposite party No. 1, dispossessed the petitioner with police help. Thereafter the present application was filed by the petitioner for restoration of possession under Order 21, rule 100, section 144 of the Code of Civil Procedure and section 13(2) of the Rent Control Act, 1950, before the learned Judge of the Sixth Bench. An objection was raised by the opposite party No. 1 that the application was not maintainable. The learned Judge without deciding the merits of the application was of the opinion that the application as laid was not maintainable and dismissed the same. It is against this order that the petitioner has moved this Court in revision.

3. Mr. Dutta Roy, learned Advocate, who has appeared in support of the petition, has submitted that the application which was filed by the petitioner in the Court below was really an application under Order 21, rule 100 of the Code of Civil Procedure. Mr. Dutta Roy has contended that he was not the judgment-debtor and was not in possession on account of the judgment-debtor and as such he was entitled to be restored to possession under the provisions of Order 21, rule 100.

4. Mr. Ghosh, learned Advocate for the opposite party No. 1, has first submitted that this Court should not interfere in revision as the petitioner has other remedies. In this case the learned Judge of the Court of Small Causes dismissed the application on the preliminary ground. The question is whether on the face of the application the petitioner has a right to apply for restoration of possession. It seems to me that in the facts of this case there is no reason why we should not exercise our powers in revision and give the petitioner the remedy to which he is entitled under the statute. The learned Judge, in my opinion, has clearly misconceived the scope of the application under Order 21, rule 100 of the Code of Civil Procedure and the effect of section 13(2) of the Rent Control Act, 1950.

5. Mr. Ghosh has further contended that in effect the decree obtained by opposite party No. 1 against opposite party No. 3 was excutable as against the petitioner and as such the petitioner has no right to apply under Order 21, rule 100. He has referred us to a decision of the Bombay High Court in the case of Jairam Jadowji…(Applicant); v. Nowroji Jamshedji Plumber…(Opponent). (1) (I.L.R 46 Bombay 887), as also to the case of Sailendra Nath Bhattacharjee v. Bijan Lal Chakravarty (2) (49 C.W.N 133). These cases are clearly distinguishable. In these cases the decree for ejectment against the tenant was executable as against the subtenant, the decree having proceeded on a ground which determined the sub-tenancy as well. In order that the landlord can recover possession from the sub-tenant he must show that he has a right to treat the sub-tenancy at an end and to recover possession from the sub-tenant on the footing that the sub-tenancy no longer exists. In view of the provisions of section 13(2) of the Rent Control Act, 1950, as the ejectment decree did not proceed on the ground mentioned in section 12(1)(h) of the Rent Control Act, 1950, the petitioner, who was a sub-tenant under the tenant of the first degree, would be deemed to be a tenant under the landlord, that is, opposite party No. 1, on the same terms. We are not concerned with the question as to the terms of the tenancy. Under section 13, sub-section (2) of the Heat Control Act, 1950, the petitioner must be deemed to be a direct tenant under opposite party No. 1. In other words, the opposite party No. 1, had no right in spite of the decree obtained by him against his own tenant, i.e, the opposite party No. 2, to treat the petitioner, that is, the sub-tenant as trespasser. The decree for possession obtained by the opposite party No. 1 was, therefore, not executable against the petitioner. It may be noted that the word ‘judgment-debtor’ is defined in section 2(10) of the Code of Civil Procedure to mean any person against whom a decree has been passed or an order capable of execution has been made. In this case the decree obtained by the opposite party No. 1 against the opposite party No. 2 was hot directed against the petitioner nor it was enforceable against the petitioner; as such the petitioner cannot be regarded as judgment-debtor vis-a-vis the opposite party No. 1. The petitioner is accordingly entitled to an order for restoration of possession under Order 21, rule 100 of the Code of Civil Procedure.

6. The question then is whether we should direct this matter to be remitted to the Court below or make an order in this Court. In the Court below the only objection raised to the application under Order 21, rule 100 was that the application was not maintainable. It was not suggested that the tenancy created under section 13(2) of the Rent Control Act, 1950, had come to an end on any account whatsoever. It was not disputed in the Court below that the petitioner was a sub-tenant under the opposite party No. 2 and that the opposite party No. 2 was a direct tenant of the first degree under the opposite party No. 1.

7. In these circumstances it is not necessary to remit this case to the Court below, as no other fact need be investigated for the purpose of making an order in terms of this application under Order 21, rule 100.

8. The result, therefore, is that this Rule must be made absolute. The order of the learned Judge is set aside and the petitioner will be restored to possession, such possession as he had on the. 22nd of February, 1951, on which date he was turned out of possession. The petitioner is entitled to his costs of this application, hearing-fee being assessed at two gold mohurs.

9. The records of this case must be sent down as early as possible.

Debabrata Mookerjee, J.:— I agree.

A.K.D.G