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Smart Summary

Summary of Opinion — Rule on behalf of Defendants in Ejectment Suit

Factual and Procedural Background

This Rule was brought by the Defendants in a suit for ejectment tried in the Court of Small Causes, Calcutta. The Small Causes Court judge decreed the suit on 20 November 1947 and fixed the time to vacate for the Defendants as 6 January 1948. The Defendants obtained the Rule on 15 December 1947, together with an ad interim stay of ejectment pending disposal of the Rule.

The Plaintiff's pleaded case was that the Defendants were monthly tenants of a ground-floor shop-room (No. 15, Mallick Street, Calcutta) at a monthly rent of Rs. 135, the tenancy being according to the Hindi calendar. By a notice dated 17 February 1947 (Falgoon Budhi 12, Sambat 2003) the Plaintiff purported to determine the tenancy; the Defendants were called upon to vacate on expiry of Chait Sudi 15, Sambat 2004 (5 April 1947).

The Plaintiff further alleged that the Defendants had sublet a portion of the shop-room without the Plaintiff's consent in writing, an allegation framed in light of Sec. 12(1) of the Calcutta Rent Ordinance, 1946. The learned Small Causes Court judge's decree was described in his judgment as "a suit for ejectment on the ground of subletting."

Legal Issues Presented

  1. Whether the learned Judge's finding of "subletting" was sufficient to bring the Defendants within clause (b) of the proviso to Sec. 12(1) of the Calcutta Rent Ordinance, 1946 — i.e., whether the subletting was shown to be without the landlord's consent in writing and in the absence of any contract to the contrary.
  2. Whether subletting that took place before the Ordinance came into force could be treated as attracting clause (b) of the proviso to Sec. 12(1) when the subletting continued after the Ordinance's commencement (the question of retrospective effect).
  3. Whether, in light of the Ordinance, a landlord seeking ejectment must prove both (a) a valid notice to quit under the general law or contract and (b) that the tenant falls within one of the provisos (e.g., proviso (b)) so as to be deprived of the Ordinance's protection.

Arguments of the Parties

Petitioner's Arguments (Defendants / Mr. Mukherjee)

  • Challenge to the adequacy of the finding of "subletting": the learned Judge did not state whether the subletting was with or without the landlord's written consent, nor whether there was any contract to the contrary; therefore the finding did not explicitly establish the condition required by clause (b) of the proviso to Sec. 12(1).
  • Temporal / non-retrospective point: the alleged subletting occurred before the Ordinance came into effect, so clause (b) (which restricts immunity where the tenant has, "in the absence of any contract to the contrary," sublet without written consent) should not be applied retrospectively to penalize a pre-existing subletting.

Respondent's Arguments (Plaintiff)

  • The Plaintiff relied on proof of subletting (alleged to be without written consent) and proceeded on the assumed position that, once subletting was established under clause (b), a decree of ejectment would follow — the parties appear to have treated the notice to quit as admitted or sufficient without detailed contest at trial.
  • In the supplementary affidavit before the Court, the Plaintiff pointed to a reply letter from the Defendants denying subletting but not specifically denying service or legality of the notice to quit; the Plaintiff contended that the denial was not a specific answer to the notice to quit and that proof of subletting without consent sufficed to defeat the Ordinance's protection.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court set out the legal interaction between the general law (notably the Transfer of Property Act and related provisions) and Sec. 12(1) of the Calcutta Rent Ordinance, 1946. Under general law (clause (j) of Sec. 108 of the Transfer of Property Act) a tenant, in the absence of contract to the contrary, has a power to sublet. Sec. 12(1) of the Ordinance, however, removes the landlord's right to obtain a decree for recovery of possession so long as the tenant pays rent and performs tenancy conditions; the proviso (b) to Sec. 12(1) then provides an exception where the tenant has, "in the absence of any contract to the contrary," sublet the premises without the landlord's consent in writing.

From this statutory framework the Court distilled the following legal propositions, as applied to the facts:

  • Where the Ordinance applies, a landlord seeking ejectment must not only show entitlement under the general law or contract (for example, by proving a valid notice to quit) but must also show that the tenant cannot claim the Ordinance's protection because one of its provisos (such as proviso (b) for subletting without written consent) applies.
  • The learned Judge's description of the suit as "for ejectment on the ground of subletting" raised doubt whether he had adequately considered the notice-to-quit issue; the Court therefore requested supplementary affidavits to determine if notice had been contested below. Those affidavits showed that the Defendants denied subletting but did not specifically contest service or legality of the notice to quit, and the parties had proceeded on the assumption that proof of subletting would be determinative.
  • On the narrow question before the Court (whether the finding of subletting was proper), the Court examined the challenge that the finding did not explicitly state whether the subletting was without written consent. The Court observed that the Defendants' pleaded case was a denial of subletting, not a claim that any subletting (if it occurred) had been with the landlord's written consent. The Plaintiff affirmatively asserted that no written consent had been given. The tenancy terms were not proved, which suggested there was no restriction on subletting under the tenancy; but the Ordinance requires an express written consent to avail of its protection where subletting has occurred. In those circumstances the Court considered it reasonable to infer from the pleaded positions and evidence that any subletting found by the trial court was without the landlord's written consent.
  • On the argument that clause (b) could not operate because subletting occurred before the Ordinance took effect, the Court rejected the contention. The Court reasoned that although the subletting may have commenced before the Ordinance, the tenancy and the subletting continued after the Ordinance came into force; the continuing existence of sub-tenants after the Ordinance's commencement was relevant. Unless the tenant proved that written consent had been obtained from the landlord after the Ordinance commenced, the continuing subletting could be relied upon to attract clause (b). Therefore the pre-ordination commencement of the subletting did not prevent clause (b) from applying to a continuing subletting.

Holding and Implications

Holding: The Court held that the Rule must be discharged. The Rule was discharged with costs (hearing-fee: one gold Mohur).

The Court also adjusted the date for vacation: although the Small Causes Court had fixed 6 January 1948 as the expiration of time to vacate, the present Court fixed 21 May 1948 as the date by which the Defendants must vacate.

Implications:

  • Direct effect on the parties: the Rule brought by the Defendants is dismissed (discharged) with costs, and the Defendants are required to vacate the premises by 21 May 1948.
  • The opinion does not purport to lay down a broader new precedent beyond its application of Sec. 12(1) and proviso (b) of the Calcutta Rent Ordinance, 1946 to the facts before the Court; it confines its decision to the evidence as to subletting, the parties' pleaded positions, and the statutory framework described in the judgment.

Filed decision excerpt concludes: "In this view of the matter the Rule is discharged with costs, hearing-fee one gold Mohur. ... I fix the 21st May, 1948, as the date by which the Defendants must vacate."

Show full summary ...

    Messes. Gurupada Haldar Jiban Krishna Das, A Firm v. Arjun Das Goenka Opposite Party.

    1. This is a Rule on behalf of the Defendants in a suit for ejectment. The suit was tried in the Court of Small Causes Calcutta, and was decreed by the learned Judge on the 20th November, 1947. Time was given to the Defendants to vacate till the 6th January, 1948. This Rule was obtained on the 15th December, 1947, with an ad interim stay of ejectment pending the disposal of this Rule.

    2. The Plaintiff's case was that the Defendants were monthly tenants under him in respect of a shop-room on the ground floor of premises No. 15, Mallick Street, Calcutta, on a monthly rental of Rs. 135, the tenancy being according to the Hindi calendar expiring with the end of a month in terms of that calendar. By a notice dated the 17th February, 1947, corresponding to Falgoon Budhi 12, Sambat 2003, the Plaintiff purported to determine the tenancy. The Defendants were called upon to make over possession on the expiry of Chait Sudi 15, Sambat 2004, corresponding to the 5th April, 1947, that being the end of a month of the tenancy. The Plaintiff further alleged that the Defendants had sublet a portion of the shop-room to other people without his consent in writing. This last allegation was evidently made in view of the provisions of Sec. 12(1) of the Calcutta Rent Ordinance, 1946. Sec. 12(1) provides as follows:

    “Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872, no order or decree, for the recovery of possession of any premises shall be made as long as the tenant pay rent to the full extent allowable by this Ordinance and performs the condition of the tenancy”.

    3. Then there follows a proviso consisting of several clauses of which clause (b) alone is relevant in this case and it is to this effect:

    “Provided that nothing in this Sub-section shall apply…… (b) where in the absence of any contract to the contrary the tenant has without the consent in writing of the landlord sublet the premises in whole or in part”.

    4. Reading Sec. 12(1) along with clause (b) of this proviso, the position appears to be that even in a case where under the Transfer of Property Act or under the Presidency Small Cause Courts Act or under the Indian Contract Act, the landlord would be entitled to a decree for ejectment, the Ordinance would disentitle him to such a decree where the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy. According to clause (j) of Sec. 108 of the Transfer of Property Act, it is in the absence of a contract or local usage to the contrary, a condition of a tenancy that the lessee may sublet the whole or any part of his interest in the property. In other words, unless there is an express restriction on subletting by the terms of the tenancy, a tenant will be at liberty to sublet. Where, therefore, in the absence of a contract to the contrary a tenant sublets he can not be said to be infringing the conditions of the tenancy. Proviso (b) to Sec. 12(1) of the Ordinance, however, provides that although that is the position under the general law as embodied in the Transfer of Property Act, the tenant will still lose the immunity from eviction conferred by Sec. 12(1) where in the absence of a contract to the contrary, the tenant has without the consent of the landlord in writing sublet the premises. In other words, the tenant will be entitled to claim the protection of the Ordinance in a case of subletting only if he can show that he has sublet with the express consent in writing of the landlord. It will not be enough for him to rely on the general power of subletting which the Transfer of Property Act concedes to him. That power, as already stated, is a power to sublet, unless there is a restriction on subletting by the terms of the tenancy. What the Ordinance requires is that there must be an express consent in writing to the subletting in order that the tenant may get the benefit of the Ordinance. In this state of the law as modified by the terms of the Ordinance it becomes necessary, therefore, for a landlord seeking to evict his tenant to prove not only that the tenant is liable to ejectment under the general law or under the contract of tenancy, but also that the tenant can not claim protection from ejectment by reason of the provisions of the Ordinance, because he comes within the mischief of one or other of the provisos to Sec. 12(1). In the present case the only part of the proviso, which was relevant, was clause (b) relating to sub-letting.

    5. Reading the order of the learned Judge I was in a state of doubt as to whether he had correctly appreciated the legal position, because he opened his judgment with this description of the suit.

    “This is a suit for ejectment on the ground of subletting”.

    6. That led me to think that he overlooked that the ejectment was really based on the notice to quit, under which the landlord would be entitled to a decree of ejectment in accordance with the Transfer of Property Act. By merely proving such notice he could not however get a decree because of the Ordinance. It was necessary for him to prove the further fact that the tenant had clone something which debarred him from the protection which he would otherwise have been entitled to under the Ordinance. The Plaintiff's case was that the tenant had sublet without the consent in writing of the Plaintiff and he had therefore to prove that fact in addition to proving the service of notice to quit. Not one word, however, appeared in the judgment regarding the factum or validity of the notice to quit. This might be due, as I have already suggested, to the fact that the learned Judge had not correctly apprehended the legal position or it might be due to the fact that the parties were not in issue at all at the trial upon the question of notice. At one stage I was inclined to direct a remand in order that the question of notice might be gone into but instead of that I gave the Plaintiff a chance to file a supplementary affidavit in this Court in order to find out whether the question of notice had been at all contested in the Court below. That affidavit is now before me as well as an affidavit in answer. I am now satisfied that the parties had actually taken it for granted that if subletting was proved, there was nothing else to prove on the part of the Plaintiff. In other words, it was assumed that if the Plaintiff could bring case under clause (b) of the proviso to Sec. 12(1) of the Ordinance, he would straightaway be entitled to a decree, it being admitted or assumed that the notice to quit had been served and was sufficient in law. In the affidavit before me which has been filed by the Plaintiff a letter is set out which was sent by the Defendants through their lawyer in reply to the notice of ejectment. In that letter the allegation of subletting was expressly denied but no specific denial was expressed as to the service or legality of the notice for ejectment. There is only one sentence stating that the Defendants denied liability to vacate the shop-room. I can not regard this as a specific answer to the Plaintiff's notice for ejectment which clearly called upon the tenant to vacate the premises on the expiry of the month of tenancy treating the tenant as a monthly tenant.

    7. That leaves the only question to be decided in the Rule to be whether the finding of subletting was a proper finding. The learned Judge says.

    “under the circumstances, I hold that there has been a subletting”.

    8. Upon this Mr. Mukherjee's first point on behalf of the petitioner is that this is not a finding in terms of clause (b) of the proviso to Sec. 12(1) of the Ordinance, because nothing is stated as to whether the subletting was with or without the landlord's consent in writing and whether there was or was not any contract to the contrary. Having regard to the specific case made by the Plaintiff in the plaint and the form of the denial by the Defendants. I have no doubt that it was not the Defendants' case at any stage that they had sublet it with the consent in writing of the landlord. The case, on the other hand, was that there had been no subletting. That case has been definitely negatived by the Court. The terms of the tenancy have not been specifically proved. That only means that there was no restriction on subletting, and the tenant would therefore be entitled to sublet. If the tenant wanted to escape the mischief of clause (b) it was the easiest thing for the tenant to show that he had sublet it with the consent in writing of the landlord. The Plaintiff's case was that he had not given any such consent. There is no express statement in the evidence to that effect, but there can be no doubt that having regard to the defence, if there was subletting, it was only reasonable to suppose that the subletting had been without the consent of the landlord.

    9. The second point made on behalf of the petitioner is that the subletting took place before the Ordinance came into effect; therefore the Defendants were not hit by cl. (b) at all, as cl. (b) could not have retrospective operation.

    10. There is no substance in this contention. It may be that at the inception of the tenancy there was no question of obtaining the consent of the landlord in writing before the tenant could sublet. All the same, the tenancy subsisted at the date of the Ordinance and continued during its currency. The sub-tenants were still there, and I do not see why the fact of subletting could be ignored for the purposes of applying the provisions of the Ordinance, merely because the subletting had taken place before the enactment of the Ordinance. Where the subletting continued till after the Ordinance was passed, that sub-letting, in my opinion, would be quite effective to attract the operation of cl. (b) unless it was shown by the tenant that he had obtained the consent in writing from the landlord to such sub-letting after the Ordinance had come into operation. It is enough for the Plaintiff to prove that there had been subletting without the consent of the landlord. Even where such subletting commenced before the Ordinance came into operation, the fact would still remain that the subletting was without the consent of the landlord unless the contrary was proved by the tenant. The second point raised by Mr. Mukherjee therefore also fails.

    11. In this view of the matter the Rule is discharged with costs, hearing-fee one gold Mohur.

    12. The time to vacate which had been fixed by the learned Small Causes Court Judge expired on the 6th January, 1948. In lieu of that date I fix the 21st May, 1948, as the date by which the Defendants must vacate.

    C.C

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    Comments

    Messes. Gurupada Haldar Jiban Krishna Das, A Firm v. Arjun Das Goenka Opposite Party.
    (Apr 9, 1948)