Ghaffar Haji Shakoor v. S.M Saeed .

1. These two appeals are at the instance of the defendants and they arise out of a suit for eviction on the grounds of default in payment of rent subletting of the suit premises and reasonable requirement of the plaintiff of the suit premises for his own use and occupation.

2. The case of the plaintiff is that the plaintiff is the owner of premises No. 15, Zakaria Street, Calcutta. The defendant No. 1 had been a monthly tenant under the plaintiff in respect of twelve rooms numbered as rooms Nos. 10 to 21 in the first floor of the said premises at a monthly rent of Us. 190/- payable according to the English Calendar month. The defendant No. 1 has renumbered the said rooms as rooms Nos. 10 to 14, 15 and 15-A to 20. The tenancy of the defendant No. 1 was terminated by a notice to quit dated February 20, 1967. It is alleged that the defendant No. 1 has sublet and/or transferred the suit premises to the defendants Nos. 2 to 5 who had given notices under Section 16(2) of the West Bengal Premises Tenancy Act, 1956. The plaintiff, however, contends that the said notices were not legal and valid notices. It is further alleged that after the passing of the West Bengal Premises Tenancy Act, 1956, the defendant No. 1 sublet or transferred the suit premises to the following persons without the knowledge and consent of the plaintiff:—

(1) Calcutta Memon Jamat, (2) Som Still Co., (3) Adambhai Hazi, (4) Zakaria Shariff and (5) Calcutta Young Memon Association. As to the ground of default, it is alleged that the defendant No. 1 is a defaulter in payment of rent since April, 1967.

3. The further case of the plaintiff is that the present residence of the plaintiff in the rented flat at 191, Park Street, Calcutta is quite insufficient for the accommodation of the plaintiff and the members of his family. It is alleged that the said flat consists of two bed rooms and one dining room. The family of the plaintiff consists of himself, his wife, three grown-up sons, one unmarried daughter and one married daughter. One of the sons of the plaintiff is an Advocate and the other two are medical students, of the second year and the fourth year. The plaintiff contends that he reasonably requires the suit premises for the residence of himself and the other members of his family for bed rooms, chambers, store rooms, kitchens, drawing room, dining room and one parlour. Upon the aforesaid allegations, the plaintiff instituted the suit for the eviction of the defendants.

4. The defendants Nos. 1 to 5 entered appearance in the suit and contested the same by filing written statements. The defendant No. 1 filed a separate written statement while the defendant Nos. 2 to 5, the sub-tenants filed a joint written statement. The defendant No. 1 denied that the plaintiff was the owner of the suit premises. As to the allegation of subletting, it is alleged by the defendant No. 1 that prior to him one Uptelwalla was a tenant in respect of the suit premises under the plaintiff's mother Musst. Maryan Bi. The said Uptelwalla had a number of sub-tenants under him and the defendant No. 1 was also a sub-tenant under the said Uptelwalla in respect of room No. 15 of the suit premises. On July 1, 1949 the said Uptelwalla with the consent of the plaintiff's mother surrendered his tenancy in respect pf the suit premises along with the sub-tenants in favour of the defendant No. 1. The defendant No. 1 was, thereafter, accepted as a tenant by the plaintiff's mother and the other sub-tenants became sub-tenants under the defendant No. 1. A letter of tenancy dt. July 12/13, 1949 was executed by and between the defendant No. 1 and the plaintiff's mother through the plaintiff, and the defendant No. 1 was given the right to sublet as before. It is alleged that sometime back, the plaintiff sent his son Md. Yahya to the defendant No. 1 with a request to have a look into the said letter of tenancy. The representative of the defendant No. 1 showed the said document to the plaintiff's son in good faith, but the plaintiff's son tried to destroy the same and tore off a portion thereof. It is further alleged that the sub-tenants are all old tenants in occupation from long before 1956. It is alleged that the sub-tenant Zakaria Shariff has been in occupation of a room in the suit premises since 1949.

5. As to the allegation of default, the defendant No. 1 has denied that he is a defaulter in payment of rent since April, 1967. It is alleged that the defendant No. 1 validly deposited rent from the month of May, 1967 upto the month of January, 1968 with the Kent Controller, Calcutta as the plaintiff refused to accept rents in spite of timely tenders made by the defendant No. 1. The defendant No. 1 has further alleged that he also tendered the rent for the month of April, 1967, but the plaintiff refused to accept the same. The rent for the said month had been duly deposited by the defendant No. 1 in Court and that he has been depositing rent from February, 1968 in Court.

6. The defendant No. 1 has denied that the flat at 191, Park Street, Calcutta is a rented flat, but it is alleged that the said premises No. 191, Park Street, Calcutta belong to the plaintiff. It is contended by the defendant No. 1 that the accommodation available to the plaintiff in the said premises No. 191, Park Street, Calcutta is quite sufficient for the plaintiff and the members of his family. It is further alleged that the suit premises is not suitable for residential purposes, but the suit premises was so constructed that it can only be used for office and business purposes.

7. The defendants Nos. 2 to 5 denied the material allegations in the plaint It was alleged by them that they had been in occupation of the suit premises as sub-tenants under the defendant No. 1 from long before the enactment of the West Bengal Premises Tenancy Act, 1956. They alleged that they served notices on the plaintiff under Section 16(2) of the West Bengal Premises Tenancy Act, 1956. These defendants supported the case of the defendant No. 1 in all respect.

8. It has been already stated that the defendant No. 1 challenged the owner-ship of the plaintiff of the suit premises. In order to substantiate his case, the defendant No. 1 filed interrogatories relating to the owner-ship of the said premises No. 15, Zakaria Street, Calcutta including the suit premises. In answer to the interrogatories it is stated by the plaintiff that his mother purchased the half share of the said premises from her husband Sheikh Md. Ismail on March 4, 1949 and that she got the remaining half share by gift from her sons who inherited the same from their father. It is further stated that the plaintiff's mother died living the plaintiff as her sole heir; that the defendant No. 1 became the tenant of the plaintiff's mother with effect from July 1, 1949 and that after the death of the plaintiff's mother in April, 1955, the defendant No. 1 became the tenant under the plaintiff. The interrogatories also included an enquiry as to whether one Abdul Sakoor Umar Sahigra was a tenant of the said premises No. 15, Zakaria Street, Calcutta. This interrogatory was answered by the plaintiff by saying that there was no tenant by the name of Abdul Sakoor Umar Sahigra, but there had been a tenant of the name of M/s. Abdul Sakoor Umar Sahigra and Co. in respect of two rooms, the rent for one room being Rs. 25 per month and for the other Rs. 35/- per month, and that the said company had been a tenant under the plaintiff from August, 1956. Although, the interrogatories of the defendant No. 1 were as many as five in number, one of them relating to the said Abdul Sakoor Umar Sahigra, the defendant No. 1 did not ask for any particulars of the sub-tenants as alleged in paragraph 4 of the plaint, particularly the sub-tenants who are alleged to have been sublet the suit premises without the knowledge and consent of the plaintiff after the enactment of the West Bengal Premises Tenancy Act, 1956.

9. The learned Judge City Civil Court, Calcutta came to the finding that the defendant No. 1 was not a defaulter in payment of rent and that in any event the defendant No. 1 having complied with the requirement of Section 17(2) of the West Bengal Premises Tenancy Act, 1956 no decree on the ground of default could be passed against the defendant No. 1. The learned Judge, however, found that the defendant No. 1 sublet the suit premises after the enactment of the West Bengal Premises Tenancy Act, 1956. The learned Judge found that the plaintiff was the owner of the suit premises and that the plaintiff reasonably required the same for his own use and occupation. The notice to quit was held by the learned Judge to be legal and valid and it was also found to have been duly served upon the defendant No. 1. Upon the aforesaid findings, the learned Judge decreed the suit for eviction. Hence, these two appeals, one at the instance of the defendant No. 1 being F.A No. 221 of 1970 and the other at the instance of the defendants Nos. 2 to 5, the sub-tenants being F.A No. 215 of 1970. These two appeals were heard analogously as they involve common questions of law and facts.

10. The first point that has been argued on behalf of the appellants is that the plaintiff is not the owner of the suit premises and as such no decree on the ground of reasonable requirement of the plaintiff of the suit premises for his own use and occupation can be passed. There can be no doubt that unless the plaintiff is the owner of the suit premises he is not entitled to a decree for eviction on the ground of his requirement of the same for his own use and occupation. The learned Judge has found that the plaintiff is the owner of the suit premises. I have already referred to the answers given by the plaintiff to the interrogatories filed by the defendant No. 1. The plaintiff has no doubt made some confusion in his evidence relating to his title to the suit premises, but the answer of the plaintiff to the interrogatories of the defendant No. 1 is clear. According to the plaintiff, premises No. 15, Zakaria Street, Calcutta which consists of the suit premises belonged to his father. After the death of his father, the plaintiff's mother and her sons including the plaintiff inherited the said premises. It is the plaintiff's case that the plaintiff and his brothers gifted their half share in the said premises to their mother so that the plaintiff's mother became a full owner of the said premises. Further, the plaintiff states in his answer to the interrogatory that his mother died leaving the plaintiff as her sole heir and that the plaintiff became the sole owner of the suit premises. Although the plain-tiff made some confusion in his evidence, his statement in answer to the interrogatories is corroborated by his oral evidence. On behalf of the appellants it is contended that the plaintiff not having filed the document of title to the said premises, particularly the alleged deed of gift executed by the plaintiff and his brothers in favour of their mother, it should be held that the plaintiff is not the sole owner of the said premises. I am unable to accept this contention of the appellants. The plaintiff has filed a copy of the entries in the D. Register which is Exhibit 2 and the Corporation tax receipts which are Exhibit 3 series. It will appear from Exhibit 2 that the plaintiff has been recorded therein as the sole owner of the said premises No. 15, Zakaria Street, Calcutta. The Corporation tax receipts also describe the plaintiff as the sole owner of the said premises. The evidence of the plaintiff that he is the sole owner of the said premises has not also been seriously challenged on behalf of the appellants in the cross-examination of the plaintiff. In the circumstances, merely because the plaintiff has not produced the deed of gift in favour of his mother, it cannot be said that the plaintiff has failed to prove his sole ownership of the said premises including the suit premises. Agreeing with the learned Judge, I also hold that the plaintiff is the sole owner of the said premises No. 15, Zakaria Street, Calcutta.

11. It has been argued by Mr. Sen that in view of the proviso to Sub-section (2) of Section 13 no decree for ejectment on the ground of reasonable requirement of the landlord for his own occupation can be passed against a subtenant who has given a notice under Section 16(2). It is contended by him that as the defendants Nos. 2 to 5, the subtenants have given notices under Section 16(2), no decree for eviction can be passed against them on the ground of reasonable requirement of the plaintiff of the suit premises for his own occupation. Sub-section (2) of Section 13 is as follows:—

“(2) The sub-tenants, if any, referred to in Section 16 who have given notice of their sub-tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord:

Provided that except in cases covered by clause (f) or clause (g) of sub-section (1), no decree or order for ejectment shall be passed against any such subtenant unless any of the grounds mentioned in clauses (b) to (e) and (h) apply to him.”

12. Clause (f) was amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969 and Cl. (f) and clause (ff) were substituted in place of original clause (f). The substituted clauses (f) and (ff) are as follows:—

“(f) Subject to the provisions of subsection (3-A) and Section 18-A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations, cannot be carried out without the premises being vacated;

(ff) Subject to the provisions of subsection (3-A) where the premises are reasonably required by the landlord for his own occupation if he is the owner or the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.”

13. The grounds now contained in the substituted clauses (f) and (ff) were there in clause (f) before it was amended. Before the amendment, under the proviso to Sub-section (2) of Section 13 a decree passed in a case covered by Cl. (f), that is, either on the ground of building or re-building or for making thereto substantial additions or alterations, or on the ground of reasonable requirement for the landlord's own occupation, a decree for eviction could be passed against a sub-tenant even though he had given a notice under Section 16(2). After the amendment of clause (f), the provisions of the West Bengal Premises Tenancy Act, 1956 were amended accordingly substituting clauses (f) and (ff) in place of clause (f). In the proviso to sub-section (2), however, the clause (f) was not substituted into clauses (f) and (ff). It is argued that clause (f) in the proviso refers to the substituted clause (f), as a result of which it is only in a case covered by clause (f), that is, when the ground for ejectment is for building or rebuilding the premises or for making thereto substantial additions or alterations, the decree can be passed against a sub-tenant also; but no decree for ejectment can be passed against a sub-tenant on the ground of reasonable requirement of the premises for the own occupation of the landlord.

14. If the proviso to Section 13(2) is construed in terms of the language used therein the contention made on behalf of the defendant No. 1 is to be upheld. In my opinion, it will be erroneous and improper in the facts and circumstances stated above, to construe this proviso on the basis of the plain meaning of the language used therein. It is necessary to consider also the intention of the legislature. While suitable amendments were made in the other provisions of the Act by substituting clauses (f) and (ff) in place of clause (f), there was an omission to substitute clause (f) in the proviso. On a reference to sub-sec. (4) of Section 13, it is manifestly clear that it was the intention of the legislature that a decree for ejectment can be passed against the sub-tenant who has given notice under Section 16(2) on the ground of the reasonable requirement of the landlord of the premises for his own occupation. Sub-section (4) of Section 13 provides for partial eviction where the decree has been passed either on the ground as mentioned in clause (f) or in clause (ff). It provides that the tenant or a sub-tenant may be evicted from a part only of the premises where the Court forms an opinion that the requirement of the landlord may be substantially satisfied by such partial eviction. If it is held that the proviso to Section 13(2) applies to a case for eviction on the ground of building or rebuilding of the premises or for making thereto substantial additions or alterations, in that case, Sub-section (4) of Section 13 would become nugatory. It is apparent that there has been a clerical error or omission to substitute clauses (f) and (ff) in place of clause (f) in the proviso to Sub-section (2) of Section 13.

15. The question naturally arises whether the Court can read clause (f) as substituted by clause (f) and clause (ff) in the proviso to Section 13(2). In this connection I may quote the following observations made in Maxwell's Interpretation of Statutes — 11th Edition, Page 243—

“Clerical errors may be read as amended, as where, for instance, an Act refers to another by title and date, and mistakes the latter.

It has been asserted that no modification of the language of a statute is ever allowable in construction except to avoid an absurdity which appears to be so not to the mind of the expositor merely, but to that of the legislature, that is, when it takes the form of a repugnancy. In this case the legislature shows in one passage that it did not mean what its words signify in another, and a modification is therefore called for, and sanctioned beforehand, as it were, by the author. But the authorities do not appear to support this restricted view. They would seem rather to establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt text, when satisfied, on solid grounds, from the context or history of the enactment, or from the injustice, in-convenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention and that this amendment probably does.”

16. It has been already stated above, that the legislature intended that a decree for eviction on the ground of building or re-building of the premises or for making additions or alterations thereto or on the ground of reasonable requirement of the premises for the landlord's own occupation can be passed even against the sub-tenant who had given notice under Section 16(2). The clause (f) in the proviso to Section 13(2) is obviously a misprint for clause (f) and clause (ff). In Craies on Statute Laws, 7th Edition, Page 521, the same view as in Maxwell's has been expressed which is apparent from the following passage:—

“But if there is an obvious misprint in an Act of Parliament the Courts will not be bound by the letter of the Act, but will take care that its plain meaning is carried out “It is our duty,” said Tindal C.J in Everett v. Wells, (1841) 2 M. & G. 269, 277, “neither to add to nor to take away from a statute, unless we see good grounds for thinking that the legislature intended something which it has failed precisely to express.” Thus, in Chancellor of Oxford v. Bishop of Coventry, (1615) 10 Co Rep 53b, it was resolved that “when the description of a corporation in an Act of Parliament is such that the true corporation intended is apparent ………… though the name of the corporation is not precisely followed, yet the Act of Parliament shall take effect.” So in R. v. Wilcock, (1845) 7 QB 317, 338, the Payment of Workmen's Wages Act, 1818 in part repealed several-Acts described by their titles and dates. Among these was an Act said to have been passed in the 13th Geo 3, but agreeing in title with 17th Geo 3, c. 56, and with no Act passed in 13th Geo 3. Lord Denman C.J said: “Secondly, whether the penalty is properly distributed by the adjudication is assumed to depend on the question whether the Act just alluded to (17 Geo 3, c. 56) was in these particulars repealed by the statute 58 Geo 3, c. 51, which repeals ‘an Act passed in the 13th year of’ Geo III entitled ‘an Act for,’ etc., and here is set out the title of 17 Geo 3, c. 56, not that of any Act passed in the 13th year of Geo HI, nor, as we presume, of any other Act whatever. A mistake has been committed by the legislature; but having regard to the subject-matter, and looking to the mere contents of the Act itself, we cannot doubt that the intention was to repeal the Act of 17 Geo 3, and that the incorrect year must be rejected.”

17. In view of the above principles of law as paid down in Craies on Statute Law and in view of the finding that clause (f) in the proviso to sub-section (2) is an obvious clerical mistake, in my opinion, clause (f) in the proviso should be read as amended by the substitution in its place by clause (f) and clause (ff), or in other words, clause (f) should be read as clause (f) and clause (ff). The above contention of the defendant No. 1, therefore fails.

18. Now I may consider the plaintiff's case of reasonable requirement of the suit premises. At present, the plaintiff resides in a flat at 191, Park Street, Calcutta. The members of the family of the plaintiff consists of himself, his wife, his three sons and an unmarried daughter. The plaintiff has in his occupation only two bed rooms, one drawing room, a kitchen, privy and a small verandah. The case of the defendants was that the plaintiff has in his possession eight rooms in the said premises No. 191, Park Street, Calcutta. In this Court, at the instance of the defendants there was a local inspection of the flat at 191, Park Street, Calcutta by an Advocate Commissioner for the purpose of ascertaining the accommodation available to the plaintiff in the said flat. The report of local inspection of the learned Advocate Commissioner, the formal proof of which was dispensed with by the consent of parties and marked as Exhibit 13, supports the plaintiff's version about the extent of accommodation available to him in the said flat. There is no foundation of the defendants' case that the plaintiff has in his possession eight rooms in the said flat. According to the plaintiff he is a tenant in respect of the said flat. The plaintiff has also produced some rent receipts. The defendants, however, alleged that the plaintiff is the joint owner of the said premises No. 191, Park Street, Calcutta along with his step-brothers. The defendants have failed to prove the said allegation by any satisfactory evidence. In view of the evidence of the plaintiff and the rent receipts produced by him, there can be no doubt that the plaintiff is a tenant in respect of the said flat at 191, Park Street, Calcutta.

19. Prima facie it appears that the accommodation available to the plaintiff in the said flat is insufficient for the plaintiff and the members of his family. Mr. Sen, learned Advocate appearing on behalf of the defendants Nos. 2 to 5, the sub-tenants concedes the same. He, however, submits that the plaintiff has no intention to shift to the suit premises for the purpose of residing therein with the members of his family. The suit premises is situate in a business locality. This has been admitted by the plaintiff in his cross-examination. Further, the plaintiff admits that there are many offices in the disputed premises. The second floor is also tenanted and there are eight tenants of the plaintiff therein. It is contended by Mr. Sen that in view of the fact that the suit premises is situate in a business locality and is meant for office and business purposes, the same is not suitable for residential purposes, nor does the plaintiff intend to occupy the suit premises for residential purposes. In support of the said contention, my attention has been drawn to the notice to quit which is Exhibit 4. The notice to quit is dated February 20, 1967. The only ground upon which the plaintiff sought to determine the tenancy of the defendant No. 1 is that the defendant No. 1 sublet or transferred the suit premises to others without the knowledge and consent of the plaintiff. In this notice, the plaintiff has not mentioned that he reasonably requires the suit premises for his own use and occupation as one of the grounds for determination of the tenancy of the defendant No. 1. It is strenuously urged by Mr. Sen that while it is true that no ground is required to be mentioned in a notice to quit and that non-mention of the ground of reasonable requirement in the notice to quit does not render the same illegal or invalid, but non-mention of the ground of reasonable requirement in the notice leads to an inference that the plaintiff has no intention to occupy the suit premises for the purposes of his residence. It is contended by Mr. Sen that according to the plaintiff, the plaintiff had been suffering from an acute shortage of ac-commodation in the flat at 191, Park Street,. Calcutta at the time he issued the notice to quit. In spite of the same, the plaintiff chose to determine the tenancy only on the ground of sub-letting. If the plaintiff really require the suit premises for the purpose of his residence, in that case, the plaintiff would have surely mentioned the same in the notice to quit. Mr. Sen submits that this points to the conduct of the plaintiff and it has a great bearing on the question whether the plaintiff reasonably requires the suit premises for his own occupation. My attention has also been drawn to a letter dated October 19, 1966 written by the plaintiff to one G.S Ram Sett. The letter has been marked on admission as Exhibit ‘‘A’. It transpires from the evidence of D.W 2 Hazi Siddique that G.S Ram Sett was the constituted Attorney of the defendant No. 1 G.S Ram Sett remitted to the plaintiff rent for the suit premises by postal money-order. By this letter (Exhibit ‘A’), the plaintiff calls upon G.S Ram Sett to disclose his identity and it is stated that if he fails to comply with the same, the plaintiff shall be constrained to refuse to accept further payments from him by money-order or otherwise and shall take steps to recover possession of the suit premises. It is contended by Mr. Sen that since October 19, 1966, the plaintiff had been contemplating to re-cover possession of the suit premises not on the ground of his reasonable requirement but for some other reasons and about four months thereafter the notice to quit was issued by the plaintiff on the ground of sub-letting. In my opinion, there is substance in the contention of Mr. Sen. The plaintiff was not required to state any ground in the notice to quit but when he chose to mention a ground in the notice to quit, it may be taken that the plaintiff sought to determine the tenancy of the defendant No. 1 only on that ground. There is, however, no bar to the plaintiff's praying for the eviction of the defendants on the ground of his reasonable requirement of the suit premises for his own occupation. In considering the same, the Court is entitled to consider the conduct of the plaintiff. The conduct of the plaintiff is apparent from the omission to mention in the notice to quit that the plaintiff reasonably requires the suit premises for his own occupation as a ground for determining the tenancy. Moreover, as it transpires from the evidence of the plaintiff himself that the suit premises is situate in a business locality it can be reasonably assumed that the building in which the suit premises is situate was not constructed for residential purposes. In view of the status of the plaintiff and the facts stated above, I accept the contention of Mr. Sen that the plaintiff had or has no intention to occupy the suit premises for the purpose of his residence. In the circumstance, in my opinion, the plaintiff has failed to prove reasonable requirement of the suit premises for his own occupation. The learned Judge has not considered this aspect of the matter while considering the question of plaintiff's reasonable requirement.

20. It now remains to consider the ground of sub-letting. It is, however, argued on behalf of the defendant No. 1 that under the agreement of tenancy dated July 12/13, 1949 marked as Ext. ‘D’, between him and the plaintiff's mother, the defendant No. 1 was authorised to induct sub-tenant. Exhibit ‘D’ is a letter written by the defendant No. 1 to the plaintiff's mother. The relevant portion of the letter is as follows:—

“This letter of Tenancy may be terminated by a Notice on either side as required by law, and we shall quit and deliver up the entire premises occupied by us in the name of our said firm, on receiving such aforesaid Notice according to law, or shall transfer the rights of sub-tenancy of the then subletted portion in your name if agreed upon.”

21. It is alleged that the letter of tenancy was accepted by the plaintiff's mother through the plaintiff who put his signature thereon Before considering whether it was accepted by the plaintiff's mother or not, I may, for the present, assume that it was accepted by the plain-tiffs mother. The terms which have been quoted above do not expressly authorised the defendant No. 1 to sublet the suit premises, but apart from anything else, it may be said that impliedly the defendant No. 1 was so authorised, for, under the terms, on the determination of the tenancy of the defendant No. 1, he has to transfer the sub-tenancies, to plaintiff's mother, if agreed upon. In other words, the plaintiff's mother may accept the sub-tenants as her direct tenants. In this connection, it is necessary to refer to the case of the defendant No. 1. It is the specific case of the defendant No. 1 that previously one Uptelwalla was the tenant of the suit premises under the plaintiff's mother. The said Uptelwalla had a number of sub-tenants including the defendant No. 1. Uptelwalla with the consent of the plaintiff's mother surrendered his tenancy in respect of the suit premises in favour of the defendant No. 1 on July 1, 1949, as a result of which the defendant No. 1 became the direct tenant of the, plaintiff's mother and the other sub-tenants became the sub-tenants of the defendant No. 1. In this back ground, if we consider the terms quoted above, it becomes manifestly clear that the subtenants mentioned therein refer to the sub-tenants who were already there in the suit premises. In the circumstance, in the above context the terms do not by necessary implication authorised the defendant No. 1 to sublet the suit premises.

22. Let me now consider whether the said letter of tenancy was accepted by the plaintiff's mother. It has been alleged that the plaintiff put his signature in the letter on behalf of his mother. The portion of the letter alleged to have contained the plaintiff's signature is torn. The case of the defendant No. 1 in this regard is that the;plaintiff sent his son Md. Yahya to the defendant No. 1 with a request to have a look into the said letter of tenancy. One Ram Sett, the representative of the defendant No. 1 showed the letter of tenancy to Md. Yahya, but the latter tried to destroy the same and tore off a portion thereof Ram Sett is dead and there is no direct evidence in support of the said allegation. Md. Yahya has categorically denied the said allegations. The defendant No/1 relied on certain letters which were written on his behalf to the plaintiff. In the said letters, the said allegation about the plaintiff's son tearing off a portion of the letter of tenancy has been made. The learned Judge has not believed the said allegation. I do not also find any reason to believe such an absurd story. Md.-Yahya is an Advocate and I refuse to believe that he would ask for the inspection of the alleged letter of tenancy and then try to destroy the same or tear off a portion thereof containing his father's signature. The defendant No. 1 has failed to prove that the plaintiff's mother accepted the said letter of tenancy containing the terms. It has been already found by me that the letter of tenancy did not authorised the defendant No. 1 to sublet the suit premises. In the circumstance, I reject the contention of the defendant No. 1 based on the letter of tenancy.

23. Now I may consider the question of sub-letting on merits. There is no denial by the defendant No. 1 that he sublet the suit premises to various persons including the defendants Nos. 2 to 5. The question is whether the defendant No. 1 sublet the suit premises after the enactment of the West Bengal Premises Tenancy Act, 1956. In paragraph 4 of the plaint, the plaintiff admits that the defendants Nos. 2 to 5 served him with notices under Section 16(2) of the West Bengal Premises Tenancy Act, 1956. Besides the defendants Nos. 2 to. 5, the plaintiff alleges that the defendant No. 1 sublet or transferred the suit premises to (1) Calcutta Memon Jamat, (2) Som Still Co. (3) Adambhai Hazi, (4) Zakaria Shariff and (5) Calcutta Young Memon Association after the passing of the West Bengal Premises Tenancy Act,.1956 without the knowledge and consent of the plaintiff. In his evidence, the plaintiff has admitted receipt of notices in 1956 under Section 16(2) from the defendants Nos. 2 to 5. The plaintiff does not say that the defendant No. 1 sublet the suit premises to these defendants after the enactment of the West Bengal Premises Tenancy Act, 1956. The plaintiff, however, has categorically stated that the defendant No. 1 sublet the suit premises to the said five persons, namely, Calcutta Memon Jamat and others after the enactment of the said Act. The defendant has not challenged that statement of the plaintiff in his cross-examination. Further, the D.W 2 Hazi Siddique who is the constituted Attorney of the defendant No. 1 does not deny in his evidence that the said five persons were sublet the suit premises after the enactment of the said Act. The defendants have, however, examined Zakaria Shariff as D.W 1. He claims to be a subtenant in respect of one room in the suit premises since 1949. In support of his allegation he produced a Corporation Trade Licence (Exhibit ‘C’)- for the year 1949–50 which shows that Zakaria Shariff was carrying on business in the suit premises in that year. The learned Judge has observed that it may be quite possible that he was a sub-tenant in 1949–50 and vacated the suit premises since then and again was inducted sometime after 1956. This observation of the learned Judge is based on mere surmise and conjecture. In view of the said trade licence (Ext. ‘C’), I do not find any reason to disbelieve the evidence of D.W 1 Zakaria Shariff that he had been a sub-tenant in one of the rooms in the suit premises since 1949. The plaintiff's case is that Zakaria Shariff was sublet the suit premises after the enactment of the West Bengal Premises, Tenancy Act, 1956 fails. Besides the sub tenancy of Zakaria Shariff no satisfactory evidence has been given by the defendants to disprove the plaintiff's allegation that the suit premises were sublet to Calcutta Memon Jamat, Som Still Co., Adambhai Hazi and Calcutta Young Memon Association after the enactment of the West Bengal Premises Tenancy Act, 1956 without the knowledge and consent of the plaintiff. It has been already stated by me that the defendants have not denied in their evidence the said allegation of the plaintiff. The D.W 2 the constituted Attorney of the defendant No. 1 has not said a word about these four persons. In the circumstance, it must be held that the plaintiff has been able to prove that the defendant No. 1 sublet the suit premises to these four persons without the knowledge and consent of the plaintiff after the enactment of the West Bengal Premises Tenancy Act, 1956. Zakaria Shariff admits in his evidence that he has not given any notice under Section 16(2). He has, therefore, no protection under the provisions of the Act. The defendants Nos. 2 to 5 have served notices under Section 16(2). It is, however, argued by Mr. Ganguly, learned Advocate for the plaintiff that the notices were addressed to the deceased mother of the plaintiff and as such the notices must be held to be illegal and the defendants Nos. 2 to 5 are not entitled to any protection against eviction. I am, however, unable to accept this contention of Mr. Ganguly. In his evidence, the plaintiff did not challenge the notices as illegal. On the contrary, the plaintiff seems to have accepted the said notices as legal and valid. In my opinion, the plaintiff has waived any illegality or irregularity in the said notices given by the defendants Nos. 2 to 5. The defendants Nos. 2 to 5 are, therefore, protected from eviction. The plaintiff is, accordingly, entitled to a decree for eviction on the ground of sub-letting by the defendant No. 1 of the suit premises to the said four persons, namely, Calcutta Memon Jamat and three others after the enactment of the West Bengal Premises Tenancy Act, 1956 without the knowledge and consent of the plaintiff. As it has been held by me that the defendants Nos. 2 to 5 are not liable to be evicted, the plaintiff is only entitled to a decree for eviction of the defendant No. 1 from the suit premises. The defendants Nos. 2 to 5 will become the direct tenants under the plaintiff in respect of rooms Nos. 17, 11, 12, 18 and 14 in possession of the defendants Nos. 2 to 5 respectively. The plaintiff will recover khas possession of the remaining seven rooms of the suit premises.

24. In the result, the judgment and decree of the learned Judge is modified to this extent that the suit is decreed in part for the eviction of the defendant No. 1 from the suit premises. It is directed that excepting rooms Nos. 17, 11, 12, 18 and 14 which are in the occupation of the defendants Nos. 2 to 5 the plaintiff shall be entitled to recover khas possession of the remaining seven rooms of the suit premises from the defendant No. 1 by evicting the sub-tenants therefrom. The defendants Nos. 2 to 5 shall, with effect from the date of the decree, become tenants directly holding under the plaintiff in respect of rooms Nos. 17, 11, 12, 18 and 14 in their respective possession, namely, the defendant No. 2 becomes a direct tenant under the plaintiff in respect of room No. 17, the defendant No. 3 in respect of room No. 11, the defendant No. 4 in respect of rooms Nos. 12 and 18 and the defendant No. 5 in respect of room No. 14; all in the first floor of the said premises No. 15 Zakaria Street, Calcutta. There is no dispute about the amount of rent which each of the defendants Nos. 2 to 5 has been paying to the defendant No. 1 in respect of their respective sub-tenancies. It is prayed by Mr. Ganguly that each such amount of rent should be increased by ten per cent. Mr. Sen does not oppose the said prayer. In the circumstances, the amount of rent which each of the defendants Nos. 2 to 5 is now paying to the defendant No. 1 in respect of their respective sub-tenancies about which there is no dispute is increased by ten per cent and the increased amount is fixed as fair rent payable by each to the plaintiff according to the English Calendar month, that is, the defendant No. 2 shall pay Rs. 27.50 per month for room No. 17, the defendant No. 3 Rs. 33/- per month for room No. 11, the defendant No. 4 Rs. 60.50 per month for rooms Nos. 12 and 18 and the defendant No. 5 Rs. 33/- for room No. 14.

25. The two applications which were filed on behalf of the plaintiff on February 20, 1973 while these two appeals had been reserved for judgment have been taken up for hearing today. By these two applications the plaintiff challenges the legality of the proviso to sub-section 13(2) of the West Bengal Premises Tenancy Act, 1956 for the omission to substitute Cl. (f) and Cl. (ff) in the proviso.

26. In other words, it is contended by the plaintiff that he is entitled to a decree for eviction against the sub-tenants on the ground of his reasonable requirement of the suit premises for his own occupation. The point as raised in these two applications is not required to be decided in view of my finding that Cl. (f) in the proviso to sub-section 13(2) is a clerical error and it should be taken to have been amended by the substitution in its place by clause (f) and clause (ff) as incorporated by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. For the reasons aforesaid, these two applications are dismissed.

27. In the result, the First Appeal No. 221 of 1970 is dismissed and the First Appeal No. 215 of 1970 is allowed. In view of the facts and circumstances of the case, there will be no order as to costs in either of these two appeals in this Court.

28. Order accordingly.