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2001 (9) TMI 1172

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..... knowledge and consent of the appellant being contrary to the provisions of the Act, the appellant is entitled to eviction of the first respondent from the suit premises. At this stage, it is necessary to note that the second respondent herein was not made a party to the said suit for ejectment. Pursuant to the decree obtained by him, the appellant filed Ejectment Execution Case No.65/97 before the City Civil Court, Calcutta in which the second respondent filed an application numbered as Misc. Case No.2433/98 purporting to be under Order XXI, Rules 99, 100 and 101 read with Section 151 of the Code of Civil Procedure, praying for setting aside the decree passed in the abovesaid ejectment suit, and also for injunction restraining the appellant from interfering with its possession of the suit property. In that application it was contended that the tenancy in its favour was with the consent of the appellant and the eviction decree was obtained by fraud and collusion behind the back of the second respondent. The trial court after perusing the evidence adduced and considering the arguments of the parties held that the appellant had not consented to creation of a sub-tenancy as a .....

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..... nt in the ejectment suit filed by the landlord against the original tenant. He contended that the requirement of the provisions of the Act in regard to creating of sub-tenancy being mandatory and if the party claiming sub-tenancy has failed to fulfil the said requirement, there being no statutory need to implead or hear such party before passing the order of eviction, the question of obtaining the decree by fraud and collusion will not arise. Hence, it was not necessary for the executing court to have gone into this question, even so he pleaded the court on the basis of the material on record, has held that respondent No.2 has not established the said allegation of fraud and collusion. A perusal of the Act shows that Section 14 of the Act puts an embargo on the creation of a sub-tenancy without the previous consent in writing of the landlord. The relevant portion of the said Section reads thus : S. 14. Restriction of subletting. (1) After the commencement of the Act, no tenant shall, without the previous consent in writing of the landlord, -- (a) sublet the whole or any part of the premises held by him as a tenant; or Section 16 of the Act mandates that a .....

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..... of possession of the premises by the landlord : Based on the above provisions of the Act, Mr. Gupta submits that the requirement of obtaining previous consent of the landlord before acquiring the sub-tenancy right and intimating the landlord by notice by the tenant as well as by the sub-tenant in the prescribed manner within one month from the date of such subletting is a mandatory requirement of law and unless the said requirement is complied with, Section 14 of the Act comes into play which prohibits the creation of a sub- tenancy. In such a situation, it is contended that Section 13(2) makes it unnecessary for the landlord to implead a sub-tenant while seeking eviction on the ground of subletting. In such a fact-situation it is contended that it is unnecessary to go into the question of fraud and collusion because once the subletting contrary to the Act is proved, the question of obtaining decree for eviction by fraud or collusion does not arise, therefore, an issue of fraud and collusion becomes redundant. Per contra, Mr. Dhruv Mehta, learned counsel appearing for the respondents, contends that in every case where there is an allegation of fraud and collusion, .....

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..... dlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of Section 13(2) of the Act. However, Mr. Mehta questions the correctness of the findings of the executing court in regard to the previous consent of the landlord by relying upon the agreement between the first and the second respondent creating a sub-tenancy in question. He pointed out that in the said agreement dated 17.3.1983 it was clearly stated that the original tenant had the right to sublet the premises in question. In support of this, he pointed out the following clause in the said agreement : And whereas the first party by virtue of the consent of the superior landlord Shri Vishwanath Poddar in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons. On the basis of this clause in the agreement, Mr. Mehta contends that the landlord had given previous .....

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..... complied with in the instant case. This factum of non-issuance of notice as required under Section 16 is not disputed by learned counsel for respondent No.2. But the contention in regard to this was that the requirement of issuance of notice by the sub-tenant to the landlord within the time stipulated and the manner stipulated in Section 16 was not a mandatory requirement and the same is only directory and in view of the facts and circumstances of this case, a failure of issuance of such notice to the landlord would not vitiate the tenancy created in favour of second respondent. In support of this contention, learned counsel for second respondent has placed reliance on the judgments of this Court in T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994 1 SCC 754) and Mangalore Chemicals Fertilisers Limited vs. Deputy Commissioner of Commercial Taxes Ors. (1992 Supp. 1 SCC 21). Having considered these judgments, we are of the opinion that the law laid down in the said cases will not be of much assistance to second respondent in the present case. In the context of the Acts concerned therein, this Court held that the provisions considered by it in those cases a .....

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..... authority to the tenant in this regard will not be sufficient in law. Since in the present case consent of the appellant-landlord had not been contained (sic) obtained specifically for each of the sub-tenancies the respondent-tenant must be held to have violated Section 14. The appellants have, thus, established the ground mentioned in Section 13(1)(a) and are entitled to succeed. This judgment delivered in the context of the West Bengal Act clearly holds that a notice under Section 16 of the Act is a must. Similarly, this Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust Anr. (1998 3 SCC 723), accepted the law laid down in Shantilals case (supra) and held that sub-section (1) of Section 16 requires 3 requisites, namely, (i) the sub-tenancy should have been created after the commencement of the West Bengal Act; (ii) the landlord of the premises should have given written permission to the tenant to create sub-tenancy; and (iii) tenant and the sub-tenant should have notified the landlord of the creation of sub-tenancy within one month of such creation. It also held that sub-section (3) of Section 13 mandates that the decree for ejectment shall be binding on every sub-tena .....

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