Case: Silverline Forum Pvt Ltd Vs. Rajiv Trust

2. The suit property is a flat in "Harrington Mansion" situated on an important road at Calcutta. It was in the ownership of one Arun Kumar Jalan. He tenanted the premises to Rajiv Trust (first respondent) on 15.5.1975, who sublet the building to a company M/s. Accounting and Secretarial Service Private Limited (which will hereinafter be referred to as "the first sub- tenant"). Subsequently the first sub-tenant created another sub-tenancy under it in favour of second respondent M/s. Capstain Shipping Estate Private Limited.3. Ownership of the building changed from Arun Kumar Jalan and it now vests with the Silverline Forum Private Limited, (the appellant herein) as per registered conveyance deed dated 24.1.1995. Appellant filed a suit for ejectment of the tenant against first respondent under the provisions of West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the "W.B. Act") on two grounds. First is that the tenant respondent had sublet the building without the consent of the landlord and second is that the tenant used it in such a manner as to impair its condition. A decree for ejectment was passed ex-parte on 12.12.1995. Before appellant set out with execution proceedings second respondent sub-tenant filed a suit (O.S. No. 2997/97) against appellant and some others for a declaration and consequential injunction orders. Though initially second respondent got an interim order injunction against ejectment it was subsequently vacated on 15.12.1995, but that suit is still pending.4. In the meanwhile appellant moved for execution of the decree of ejectment. On 20.3.1996, bailiff of the court went to the premises for effecting delivery of possession, but he was resisted by the representatives of the second respondent and he reported the matter to the court. When he was again directed by the court to effect delivery of possession with police help, he was unable to dispossess second respondent as the execution court had stayed dispossession in the meantime. Second respondent filed Miscellaneous Case 556 of 1996 before the execution court quoting Order 21 Rule 101 and Section 151 of the Code, raising a contention that the decree was passed without making him a party and alleging that the decree was obtained in collusion between appellant and first respondent Rajiv Trust. Execution court, however, held that second respondent being a third party resistor cannot avail himself of the remedy provided in Order 21 Rule 101 of the Code. Nevertheless the court ordered an inquiry to be conducted under Section 151 of the Code into the allegations made by the second respondent, as per its order dated 26.4.1976. Both sides, appellant and second respondent, were aggrieved by that order and hence both of them challenged it in revision before the High Court.5. A learned Single Judge of the Calcutta High Court concurred with the view of the execution court that grievances of the second respondent cannot be canalized through Order 21 Rule 101 presumably because the decree-holder has not moved the application for police help to remove the resistance under Order 21 Rule 97 of the Code. Nonetheless, learned Single Judge observed that the application of second respondent could be gone into by the court in accordance with the inherent powers of the court as recognised in Section 51 of the Code. On the said view of the matter both revisions were dismissed by the order which is under challenge now.

Reasoning:
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.