Case: Silverline Forum Pvt Ltd Vs. Rajiv Trust

it is not necessary to consider the latter two sub-sections. Hence Section 16(1) alone is extracted below: "(1) Where after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sub-let shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such sub-letting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination." 20. A reading of the sub-section reveals that three additional requisites are also necessary for a sub-tenant to get wiggled into the contours of the sub- section. They are (1) the sub-tenancy should have been created after the commencement of the W.B. Act; (2) the landlord of the premises should have given written permission to the tenant to create such sub-tenancy; (3) the tenant and the sub-tenant should have notified the landlord of the creation of sub-tanancy within one month of such creation. Section 16(2) and 16(3) deal with sub-tenants who got into possession before commencement of the West Bengal Act, and they too are obliged to notify the landlord within the time specified. 21. The sub-tenants who secure perch in Section 16 are afforded with two advantages during any action which the landlord may launch for eviction of the tenant. Those advantages are incorporated in Section 13(2) of the W.B. Act. One of them is that such sub-tenant is entitled to be made a party to the suit for recovery of the premises by the landlord. Second is that no decree or order for ejectment shall be passed against such sub-tenant except under certain specified conditions. Thus sub-section (2) of Section 13 and Section 16 of the W.B. Act are inextricably inter-twined with each other. 22. Sub-section (4) of section 13 of the W.B. Act has no relevance in the present case as it only deals with the claim of a landlord for eviction on the ground that he reasonably requires the premises either for his own occupation or for the purposes of renovation, re-builiding etc. Now, we may refer to sub-section (3) of Section 13 of the W.B. Act. It read thus: "Save as provided in sub-section (2) and sub-section (4), a degree or order of the delivery of possession of any premises shall be binding on every sub- tenant." 23. It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms. 26. In Shantilal Rampuria and ors. v. M/s. Vega Trading Corporation and ors., 1989(1) R.C.R. (Rent) 268 : 1989(3) SCC 552, a two-Judge Bench of this Court considered the scope of Section 16 of the W.B. Act and held that "previous consent in writing of the landlord with respect to each sub-letting separately is essential and a general authority to the tenant in this regard will not be sufficient in law." In that case, none of the sub-tenants was impleaded as party, and this Court held that since notice under Section 16 was not served on the landlord the non-impleadment will not affect validity of the proceedings for eviction. Their Lordships sought support from another two- Judge Bench decision of this Court in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent) 671, in which similar provisions in the Delhi Rent Control Act were considered. 27. In Juthika Mulick and anr. v. Dr. Mahendra Yashwant Bali and ors., 1995(10) SCC 560 : 1995(1) RCR 81, provisions of W.B. Act were the subject matter for consideration, but nothing contrary to the decision in Shantilal Rampuria (supra) has been stated by this Court. Reference was also made to the decision in Mahabir Prasad Verma v. Dr. Surinder Kaur, 1982(1) RCR (Rent) 615 : 1982(2) SCC 258. Though it related to the provisions of East Punjab Urban Rent Restriction Act, 1949, the question considered was whether a sub-tenancy created with the consent of the landlord during the subsistence of the tenancy would continue to be lawful even after the expiry of the period of lease. The answer was in the affirmative. At any rate that decision does not run counter to the view adopted by the two-Judge Bench in Shantilal Rampuria (supra). 28. Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems if necessary.We are in respectful agreement with the aforesaid statement of law.17. We, therefore, agree with the contention of Shri Siddhartha Shankar Ray, learned senior counsel for the second respondent that the High Court went wrong in holding that the contention of second respondent cannot be considered under Order 21 Rule 97 of the Code. But the aforesaid finding is not sufficient to dispose of this appeal.18. Shri Kapil Sibal contended that second respondent being a sub-tenant under the first sub-tenant he is bound by the decree of ejectment albeit his not being made a party to the suit in which the decree was passed. It is quite clear that second respondent is a tenant under the first sub-tenant. This can be gathered from paragraph 6 of the application which second respondent filed in the execution court.It is the statutory mandate that the decree for ejectment shall be binding on every sub-tenant unless he falls within the ambit of either sub-section (2) or sub-section (4) of Section 13. There is no case for the second respondent that he has given any notice to the landlord before the expiry of the time schedule fixed in Section 16 of the Act. Nor has he a case that he would fall within the purview of the aforesaid two sub-sections in Section 13 of the W.B. Act.24. Of course, learned counsel for second respondent contended that the instrument of lease as between Arun Kumar Jalan and M/s. Rajiv Trust contained a term permitting the tenant to create sub-tenancy. Learned counsel for the appellant argued that such permission cannot be over-borrowed by sub-tenants to create further sub-tenancies, and he pointed out that even second respondent has no claim that he has notified the landlord as envisaged in Section 16(1) of the W.B. Act.25. It is clear from Section 16(1) of the W.B. Act that the previous consent of the landlord contemplated therein can on be availed of by his tenant. In other words, the tenant under the landlord can use that consent to sublet the premises to another person. A lease between the tenant and his sub-tenant would be governed by the terms agreed upon between them and the tenant cannot bind his landlord by any such terms.Shalimar Tar Products Ltd. v. H.C. Sharma and ors. 1988(1) SCC 70 : 1987(2) RCR (Rent)Thus, without any difficulty, it can be held that consent given by the landlord to his tenant for creation of the sub-tenancy is valid only between the landlord and his tenant. Such consent cannot be used by a sub-tenant to create another sub-tenancy under him so as to bind the landlord.