D.K. Seth, J.
1. The appellant claims to be a sub-tenant under the tenant against whom the landlord obtained a decree for eviction on 18th of December, 1998 in Ejectment Suit No. 338 of 1998, This decree was put into execution on 24th March, 1999. The decree was executed through police help on 4th July, 2001 excepting the portions occupied by the alleges(sic) sub-tenants/appellants in view of the fact that the appellants/sub-tenants had filed an application under Order 21 Rule 101 of the Code of Civil Procedure (CPC), being Misc. Case No. 3824 of 1999 on 2nd of May, 1999. During the pendency of the said Misc. case, on 10th of July, 2001, the West Bengal Premises Tenancy Act, 1997 (1997 Act) came into force repealing West Bengal Premises Tenancy Act, 1956 (1956 Act). The sub-tenant alleged to have given a notice under Section 26(2) of 1997 Act on 16th May, 2003 and applied before the Rent Controller under Section 26(3) of the 1997 Act for a declaration that the sub-tenant had become a direct tenant under the superior landlord. On this ground the appellant had prayed for stay of further proceedings of Misc. Case No. 3824 of 1999 till the decision by the Rent Controller on the said application under Section 26(3) of the 1997 Act. But this prayer was rejected by the learned Court below on 30th August, 2003 out of which the present appeal arises. Submission on behalf of the Appellant:
2. Mr. Sanyal, learned Counsel appearing on behalf of the appellants, had contended that Section 26(3) is independent of Section 26(2). According to him, as soon such an application is made before the Rent Controller, the Rent Controller has no alternative but to decide the question. Therefore, a right has been created in the sub-tenant to get his right adjudicated and such right being the foundation of the claim made by the sub-tenant to resist the execution, the execution proceedings cannot proceed. Inasmuch as this question cannot be decided by the executing Court and as such there is no alternative but to wait till the decision is given by the competent authority. According to him, all questions raised in the proceedings under Order 21 Rule 97 CPC are to be decided in the same proceedings in view of Rule 101 CPC. The Court cannot avoid its jurisdiction without determining the question relevant for the purpose, namely, to ascertain as to whether the sub-tenant is claiming on the basis of his right independent of the tenant to resist execution, whether the sub-tenant has become a direct tenant by reason of service of notice under Section 26(2) of the 1997 Act can be determined only by the authority under Section 26(3) of the said Act, not by the executing Court, upon which the decision of the competent authority is binding. He relied on a decision in Shefali Roychowdhury and Ors. v. A.K. Dutta, to contend that the right conferred under Section 26(2) is a new right created in favour of the sub-tenant under the new Act being the 1997 Act which cannot be denied to the sub-tenant even though the decree has been passed in view of the fact that the said question has been raised before the decree is executed as against the sub-tenant. According to him, eviction of the tenant will not affect the right of a sub-tenant conferred by him under Section 26(2) to obtain an adjudication of his status under Section 26(3). Therefore, the order appealed against should be set aside.
Submission on behalf of the Respondent:
3. Mr. Anindya Mitra, learned Senior Counsel, on the other hand, contended that the argument advanced by Mr. Sanyal is fallacious. According to him, unless the sub-tenant can claim any right under Section 26(2), he has no right to obtain the adjudication under Section 26(3). Section 26(2) would be available to a sub-tenant under a tenant provided the relationship between the superior landlord and the tenant continues or exists. Section 26(2) has no manner of application in a case where the relationship between the superior landlord and the tenant had ceased. According to him, by reason of the definition of "tenant" under Section 2(g) of the 1997 Act [Section 2(b) of the 1956 Act] the tenancy continues between the landlord and the tenant despite termination of tenancy if the tenant continues in occupation until the decree of eviction is passed. According to him, by reason of such definition, the tenancy ceased with the passing of the decree. Admittedly, in the present case, the decree has become final and has already been partly executed and would have been completely executed but for the application under Order 21 Rule 101 CPC by the appellants/ sub-tenants. Therefore, in the absence of any relationship between the landlord and the tenant, the sub-tenancy cannot continue. It also ceased with the cessation of the tenancy under whom the sub-tenancy is claimed. In such a situation, Section 26(2) has no manner of application.
3.1. The second point he had raised is that by reason of Section 45 subsection (2), the provision of 1997 Act would not be applicable. Inasmuch as the suit having been decreed before the 1997 Act came into force, the provision of the 1997 Act would not apply. The 1997 Act does not apply to a pending suit commenced before the commencement of the 1997 Act. Therefore, the benefit of Section 26 would not be available to the sub-tenant. He also distinguished the decision in Shefali Roychowdhury (supra), on the ground that in that case there was no suit for eviction pending between the tenant and the superior landlord. The tenancy between the tenant and superior landlord was governed by 1956 Act, though the suit for eviction between the tenant and the sub-tenant was governed by the 1950 Act. But this would not prevent the sub-tenant from claiming right under Section 16(3) of the 1956 Act. On facts, the ratio laid down therein is clearly distinct and different and is distinguishable. The Apex Court had proceeded on the basis of a new right created under the 1956 Act, which was not available under the 1950 Act. But this is not a case here where the right contemplated under Section 26(2) was very much available under the 1956 Act. Therefore, this decision does not apply.
3.2. In support of his third point, he had relied on a decision in Laxmi Debi Loyalka v. Frank Ross & Co. and Ors., 1961 CLJ 168: 65 CWN 167 to support his contention that the relationship between the superior landlord and the tenant and that between the tenant and the sub-tenant can be governed by two different statutes and by reason of the relation between the tenant and the sub-tenant under one statute, the relationship between the superior landlord and the tenant governed by another statute can be eclipsed. He also relied on the decision in Biswanath Poddar v. Archana Poddar and Anr., relied upon by the learned Trial Court to contend that the decree passed by the tenant is binding on the sub-tenant and, therefore, the right of the sub-tenant, if there be any, ceased with the passing of the decree. Therefore, the appeal should be dismissed.
Whether 1997 Act applies to pending proceedings :
4. After having heard the respective learned Counsel for the parties, we would examine the situation having regard to the provisions contained in Section 45(2) of the 1997 Act, which provides that notwithstanding the repeal of the 1956 Act under Section 45(1) all suits or other proceedings instituted under the 1956 Act and pending on the commencement of the 1997 Act before any Court or any other authority has to be conducted and disposed of in accordance with the 1956 Act as if the 1956 Act is continuing in force and the 1997 Act had not been passed. Admittedly, in the present case, the suit was filed under the 1956 Act before the commencement of this Act. Not only that the suit stood decreed on 18th of December, 1998 and a part of the decree was executed on 4th of July, 2001, whereas the 1997 Act came into force on 10th of July, 2001. Therefore, it is only the decree that was to be proceeded with as against the appellants that remained unexecuted and the proceedings under Order 21 Rule 101 CPC remained pending at the commencement of the 1997 Act. Even if we assume that this proceeding under Order 21 Rule 101 CPC is covered under Sub-section (2) to Section 45 even then it has to be continued under the 1956 Act as if the 1956 Act is in force and the 1997 Act had not been passed. Therefore, in our view, the benefit under Section 26 of the 1997 Act cannot be brought into play in respect of the present proceeding and no benefit thereout can be availed of by the sub-tenant.
4.1. That apart, the execution of the decree passed in a suit governed under 1956 Act is executed under the provisions of the CPC. The 1956 Act does not prescribe any procedure for execution of the decree passed under the said Act. Therefore, the execution is to be made through the general provisions contained in the CPC. Therefore, the decree having been passed in the suit for eviction, the proceedings under the 1956 Act had stood concluded and there was nothing pending under the 1956 Act. Therefore, the provisions of Section 26 of the 1997 Act cannot be attracted.
Availability of benefit of Section 16(2) & (3) 1956 Act : 26(2) & (3) 1997 Act:
5. The definition of tenant given in Section 2(b) of the 1956 Act, which is identically defined in Section 2(g) of the 1997 Act, includes persons continuing in possession after termination of his tenancy till the decree for eviction is passed against him. This definition does include persons against whom decree or order for eviction has been made by a Court of competent jurisdiction. The relationship of landlord and tenant ceases as soon this statutory tenancy expires on the passing of the decree. Therefore, the benefit of claiming independent status by the sub-tenant can be availed of only during the subsistence of the tenancy between the landlord and the tenant and not otherwise except in a case where there has been adjudication under Section 16(3) of the 1956 Act declaring the sub-tenant as a direct tenant or a notice has been given under Section 16(2) of that Act and a proceeding under Section 16(3) is yet to be concluded. Admittedly, in the present case, though the sub-tenant came to occupy under the tenant sometimes in 1985 as pointed out by Mr. Sanyal yet, no notice under Section 16(2) was ever given by the sub-tenant neither any attempt was made to obtain an adjudication under Section 16(3) before the competent authority. Admittedly, without such adjudication, a sub-tenant cannot claim any independent status. Unless he claims independent status, he cannot resist execution.
5.1. Section 26(3) of the 1997 Act is identical with the provisions contained in Section 16(3) of the 1956 Act and in both cases the relationship is to be determined between the tenant and sub-tenant on the one hand and the superior landlord and tenant on the other. This presupposes existence of relationship between the three. The cessation of relation between the landlord and the tenant would exclude the sub-tenant claiming under Section 16(2) of the 1956 Act as well as Section 26(2) of the 1997 Act as the case may be. It is only when the consent is denied on receipt of a notice under Sub-section (2) either under Section 16 or under Section 26, provisions of Sub-section (3) of those sections could be resorted to for adjudication by the Rent Controller. Therefore, unless there is a valid notice or proof of a notice under Sub-section (2), Sub-section (3) cannot be activated. Admittedly, here the notice was given on 16th May, 2003 at a point of time when the relationship between the superior landlord and the tenant had ceased and, therefore, it does not appear that there was a valid notice under Sub-section (2) to Section 26. Section 26(3) of the aforesaid Act would apply only in a case where Section 26(2) is available.
5.2. Admittedly, in the present case, the relation between the landlord and tenant was governed under the 1956 Act till it was decreed. After the decree, the sub-tenant cannot claim to govern his relationship with the superior landlord vis-a-vis that of the tenant under the 1997 Act, in the absence of any relationship between the superior landlord and the tenant on the date when the sub-tenant had claimed such right for the first time on 16th May, 2003.
5.3. The decision in Laxmi Debi Loyalka (supra) by a Division Bench of this Court had so laid down. Inasmuch as the relationship by sub-tenant is co-extensive with the tenant. We cannot conceive of any relationship between superior landlord and sub-tenant without the tenant. A sub-tenant can continue so long the tenancy continues. It cannot survive the tenancy when ceased. A decree passed against a tenant for eviction is binding on the sub-tenant even though he may not be a party to the proceedings, as was held in Biswanath Poddar v. Archana Poddar and Anr., relied upon by the learned Trial Court. As soon the decree is passed, the relationship between the superior landlord and the tenant having been ceased the relationship between the subtenant and the superior landlord cannot continue unless he can show that he has acquired the status of tenant by reason of Section 16(2) of the 1956 Act or upon its adjudication under Sub-section (3) thereof. Therefore, the issuing of notice under Section 26(2) of the 1997 Act on 16th May, 2003 long after the decree was passed, namely, 18th December, 1998, no right can be claimed by the sub-tenant.
5.4. The decision in Shefali Roychowdhury (supra) does not lay down the ratio that in a case where decree for eviction has been passed against the landlord, the benefit of a new right brought about by an amended provision could be extended to the sub-tenant. In that case, there was no such cessation of relationship between the superior landlord and the tenant. Only a suit between the tenant and the sub-tenant was pending when the 1956 Act came into force bringing with it a new right under Section 16(2) and (3) respectively. In view of the subsistence of the tenancy and the relationship, the Apex Court had proceeded to hold that there is nothing in Section 16(2) to debar a subtenant claiming benefit of the new Act on account of pendency of a proceedings between the tenant and the sub-tenant. In any event, the relation between the landlord and the tenant in that suit was subsisting and came to be governed by the 1956 Act, and that no decree of eviction was passed against him, as such the benefit of Section 16(2) and (3) of the 1956 Act could be availed of in view of the said ratio. But it would not apply to a case where relationship stood ceased between the superior landlord and tenant before the provisions of Section 16 of the 1956 Act was resorted to [in this case, however, Section 26(2) of the 1997 Act]. Therefore, this decision does not help Mr. Sanyal to the extent he wanted to rely upon.
5.5. In order to distinguish the same, we may quote the relevant portion from paragraph 6 of the said decisions :
"6. .... This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant he would be denied this right because a suit for ejectment was pending against him when the Act came into force. 'Tenant' as defined in Section 2(b) of the 1956 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under Section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by Section 16(3), The intention of the legislature, which is paramount, is clear -- to upgrade the sub-tenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant and though the pending proceeding may continue to be regulated by the repealed statute in view of Section 40, there is nothing in that section to suggest that the sub-tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under Section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under Section 16(3) was made."
A plain reading of the said decision as laid down by the Apex Court makes the case distinct from the present facts and circumstances of the case where the decree for eviction has already been passed against the tenant binding the sub-tenant.
Order 21 Rule 101 CPC : Section 26(2) & (3) of 1997 Act:
6. In a proceeding under Order 21 Rule 101 CPC the question raised between the parties are to be adjudicated in the same proceedings not by a separate suit. Here, admittedly, the question under Section 26(3) can be decided only by the Rent Controller not by the Court. Whether such a question could at all be raised for being adjudicated by the Rent Controller can very well be gone into by the Court since this is a question within the scope and ambit of Order 21 Rule 101 CPC to be adjudicated by the Court. Therefore, the learned Trial Court had rightly proceeded to decide the question of entitlement of the sub-tenant to give such notice and get an adjudication on the basis of such notice from the Rent Controller, which it had found adversely against the appellant.
6.1. In our view, within the scope of Rule 101 Order 21 CPC, all questions are to be adjudicated. In this case, the moot question that has to be adjudicated is the right of the sub-tenant to resist the execution on the strength of his claim of direct tenancy by reason of giving the notice under Section 26(2) of the 1997 Act on 16th of May, 2003. Whether the sub-tenant could give such notice or claim adjudication is a question, which can be gone into in the proceeding itself. Unless there is a case, at least prima facie, which seems to be covered under Section 16(2) or Section 26(2) of the respective Acts, there is no scope of presuming the right in favour of the tenant to get the dispute adjudicated by the Rent Controller. On the admitted facts and the materials on record as we have already found that the sub-tenant could not avail of the benefit of Section 26(2) and thus get it adjudicated under Section 26(3). Therefore, it cannot have any valid right on the basis whereof the appellants can resist execution and obtain a stay of further proceedings of Misc. Case No. 3824 of 1999 awaiting adjudication of the proceedings before the Rent Controller under Section 26(3) pursuant to the notice dated 16th May, 2003 under Section 26(2).
7. In the present case, as discussed above, the relationship having ceased, there is no scope for giving any notice either under Section 16 of the 1956 Act or under Section 26 of the 1997 Act, as the case may be.
8. In the circumstances, we do not find any infirmity in the order appealed against. The appeal, therefore, stands dismissed.
8.1. After this judgment and order is dictated, the learned Counsel for the appellants prayed for time to vacate till 31st of January, 2004. The learned Counsel for the respondents prayed that time may be granted till 31st December, 2003. He had drawn our attention to the difficulty of the respondents while the learned Counsel for the appellants has pointed out the difficulty of the appellants. Having regard to the balance of convenience of the parties and having regard to the fact that the respondents had waited for such a long time out of its good gesture, the respondents may extend their good gesture till 31st January, 2004. The appellants will furnish an undertaking before this Court within two weeks when this matter will appear as "to be mentioned". The operation of this order shall remain stayed for a period of two weeks unconditionally. If the undertaking is given within the time stipulated, in that event, the stay will continue till 31st of January, 2004. In default, the respondents shall be at liberty to execute the decree forthwith. Despite the undertaking if the appellants fail to vacate the premises on the stipulated date, in that event, the respondents shall be entitled to execute the decree through police help forthwith, for which the executing Court will pass appropriate order.
8.2. There will, however, be no order as to costs.
Urgent xerox certified copy, if applied for, be supplied to the parties within seven days from the date of application.
R. N. Sinha, J.
8.3 I agree.