ecial Leave Petition No 4 120 of 1987
From the Judgment and Order dated 2412
1986 of the High Court of Calcutta in Civil Rule No 676 of 1985
RB Mehrotra for the Petitioner
SK Bhattacharya for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is a petition for special leave to appeal against an order and judgment of the High Court of Calcutta dated 24th September 1986
By the im pugned judgment and order the High Court has held that the present petitioner was not a sub tenant and as such he was bound by the decree passed against the tenant for eviction
The petitioner challenges that finding and contends that he was a sub tenant with knowledge and consent of the landlord and as such it does not bind him because in the suit he was not a party
There should have been a separate suit accord ing to him
He should have been made a party to the suit
The High Court has held against this contention
We are of the view that the High Court was right
Our attention was drawn by Mr Kacker to the agreement of 1st of September 1966 contending that this was an arrangement of subletting and in that document one of the attesting witness was land lord himself
Therefore this is done with the knowledge and consent of the landlord and as such valid
The agreement states inter alia as follows THIS MEMORANDUM OF AGREEMENT made this the 1st September 1966 BETWEEN ABDUR RAHAMAN son of late Nabi Buksh by religion Muslim by profession business of 511 Watgunj Street PS Watgunj 1089 District 24 Parganas Calcutta 23 hereinafter called the FIRST PARTY OF THE ONE PART AND MD
SALIM son of Waris Ali by religion Muslim by profession business residing at 23 Mominpore Road Police Station Ekbalpore District 24 Parganas Calcutta 23 hereinafter called the SECOND PARTY OF THE OTHER PART WHEREAS tHE FIRST PARTY having taken settlement of a shop room its landlord Md Mea has been running a business with the stock in trade as described in the schedule below AND WHEREAS THE FIRST PARTY feels it inconvenient to look after and manage the same personally at present AND WHEREAS THE SECOND PARTY is willing to manage the said business on behalf of the FIRST PARTY on terms and conditions hereinafter appearing NOW THIS MEMORANDUM WITNESSES That the first party will remain the proprie tor of the aforesaid business and the business Licence shall stand in the name of the FIRST PARTY and the costs thereof shall be paid by the SECOND PARTY That house rent of the shop room shall be paid by the FIRST PARTY in his name That the SECOND PARTY run the business in the shop room with the stock in trade supplied by the First Party as described in the schedule as also with other articles and stock in trade to be supplied by him and manage the affairs of the said business under his personal supervision for two 2 years with effect from 1966 to 31866 on behalf of the First Party and will restore the business alongwith the said arti cles in good condition with the expiry of the term of this contract That the second party will pay to the First Party a sum of Rs90 Rupees Ninety only per month payable within the 7th day of each month for which it becomes payable
That the SECOND PARTY will be enti tled to appropriate the entire issues and profits arising out of the business in its entirely subject to the aforesaid payment to be made to FIRST PARTY and the costs of Licen see fees
That the SECOND PARTY SHALL not encumber the business in any way and shall not be entitled to raise any loan against the business and the business shall not be liable for any such debt if any incurred by the SECOND PARTY That the SECOND PARTY shall also bear all incidental costs 1090 for carrying out the business properly
That if the SECOND PARTY fails or neglects to pay the dues reserved under this contract for two months or violates any of the conditions mentioned herein then this agreement shall be treated as cancelled and of no effect and the First party will be entitled to re enter the shop room and business and to take khas pos session of the same along with the articles mentioned in the schedule
 One of the attesting witness to the said agreement was Md Ali the respondent herein who was at the relevant time landlord and is now represented by his legal representatives to this application
On a construction of the different clauses of the aforesaid document we are of the opinion that this was an agreement for management of the business of the tenant
It was not and cannot be construed as an agreement of sub tenancy
There was no exclusive possession with the respondent
There was no parting of possession of the prem ises there was only a right to manage the business looking after the existing business with fixed monthly payments and this cannot be construed as an agreement of sub tenancy
Therefore though the landlord had knowledge of the document and as such can be said to have consented to the bargain it cannot be said to be consent to an agreement of sub tenancy
Our attention was drawn to the decision of this Court in Ms Girdbar Lal  Sons vs Balbir Nath Matbur and Others 19681 2 SCC 237 where considering similar provision of Delhi Rent Control Act 1958 it was held that where the landlord had in fact consented to the sub tenancy and as such the sub tenancy was valid and landlord was bound by it
But in the present case there was no sub tenancy created by the agreement mentioned herein
Hence the consent and knowl edge of the landlord do not help
Our attention was also drawn to section 24 on the expression tenant  in West Bengal Premises Tenancy Act 1956
That definition does not affect the position of the petitioner in the instant case as there was no sub tenancy in the present case
In view of the above we are of the opinion that the High Court was right in the view it took
The Special leave petition is accordingly dismissed
There will be no order as to costs
SL Petition dismissed


Summary:
This petition for special leave to appeal was filed against the judgment and order of the High Court whereby the High Court had held that the petitioner was not a sub tenant and as such he was bound by the decree passed against the tenant for eviction
The petitioner challenged before this Court the finding of the High Court and contended that he was a sub tenant with the knowledge and consent of the landlord and as such the decree of eviction passed against the tenant did not bind him because in the suit he had not been a party
He should have been made a party to the suit
Dismissing the petition the Court HELD The High Court was right
The attention of the Court was drawn to an agreement of 1st September 1966 with the contention that that was an arrangement of sub letting and in that document one of the attesting witnesses was the landlord himself and therefore the subletting was done with the knowledge and consent of the landlord and as such was valid
1088G One of the attesting witnesses to the said agreement was Md Ali the respondent herein who was at the relevant time the landlord now represented by his legal representatives in this petition
On a construction of the different clauses of the aforesaid document the Court was of the opinion that this was an agreement of the business of the tenant
It was not and could not be construed as an agreement of subtenan cy
There was no parting of possession of the premises
There was only a right to manage the business looking after the existing business with fixed monthly payments and this could not be construed as an agreement of sub tenancy
Therefore though the landlord had knowledge of the docu ment it could not be said to be consent to an agreement 1088 of sub tenancy
The attention of the Court was drawn to section 24 on the expression tenant  in the West Bengal premises Tenancy Act 1956
That definition did not affect the position of the petitioner in this case as there was no sub tenancy in the case
1090C E G The High Court was right in the view it took
1088F Ms Girdhar Lal  Sons vs Balbir Nath Mathur and oth ers  referred to