# INDRA KUMAR KARNANI v. ATUL CHANDRA PATITUNDI AND ANR

- **Citation:** [1965] 3 S.C.R. 329
- **Court:** Supreme Court of India
- **Decided:** 1965-03-10
- **Bench:** P. B. Gajendragadkar, M. Hidayatullah, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indra-kumar-karnani-v-atul-chandra-patitundi-and-anr-3490
- **Pages:** 6

## Headnote

West Bengal Premises Rent Control (Temporary Provi.sions) Act,
1950 (West Bengal Act 17 of 1050) ss. 12(1)(c), 13-Sub-lettingPermission, when necessary-Rights of sub-tenants in violation of
agreement-If saved.
Re3pondent No. 2 was a monthly tenant of the appellant on a
condition that he would not sublet the premises of any portion thereof. Under the West Bengal Premises Rent Control (Temporary
Provisions) Act, 1948 the appellant filed a suit against respondent
No. 2 for his eviction on the ground that the tenancy had been
determined on account of default in payment of rent. While the
suit was pending, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force. The suit was decreed
and the appellant took out execution proceedings. The suit was resisted by respondent No. 1 who alleged that he had taken subtenancy from respondent No. 2. Respondent No. 1 also filed a suit
impleading the appellant and respondent No. 2 and prayed for a
deolar~tion that on the termination of the tenancy of respondent
No. 2, respondent No. 1 became a direct tenant of the appellant
under s. 13(2) of the 1950 Act and he was not liable to be evicted
in the execution case. The suit was decreed by the trial court, which
was affirmed by the appellate courts. In appeal by special leave:
HELD: The appeal must be dismissed. [334 Fl
In the case of sut-letting by a tenant of the first degree no
consent of the landlord to sub-letting is required as a condition precedent for acquisition by the sub-lessee of the tenant's rights, but
in the case of sub-letting by a tenant inferior to the tenant of the
first degree the consent of the landlord and also of the tenant of
the superior degree above him to the sub-letting is necessary if the
sub-lessee is to acquire the rights of the tenant contemplated by
s. 13(2). [332 HJ
.
The clause "and the sub-lease is binding on the landlord of such
last mentioned tenant" in s. 13(2) does not govern both classes of
tenanci~s. namelv, sub-tenancies created by "tenant of first de~ee"
and also by "a tenant inferior to the tenant of the first degree' as
defined in s. 13(1). [333 Bl
It is not correct to say that the rights mentioned in s. 13(2)
are conferred upon the sub-lessee only in a case where sut~letting
is not in violation of the agreement of lease. The right of. sub-ten":nt
even in a case in which the landlord has brought a smt foll ev1e>-
tion against the tenant under s. 12(1)(c) are saved and the righ'.s
and obligations of sub-tenants, would be governed by the provisions of s. 13. [334 A]
In Enacting s. 13 of the Act the legislature has deliberately enlarged the class of sub-tenants to be prot_ected fr~m evi.ction by the
land'ords and the language of the sect10n dealing w•th the. sublesso2s has been deliberatelv changed and nroper effect and mterpretation must be given to the language of the new sec~ion, [334 El
330
SUPREME COURT REPORTS
[1965) 3 s.c.R.

## Text

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INDRA KUMAR KARNANI
v.
ATUL CHANDRA PATITUNDI AND ANR.
March 10, 1965
[P. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH AND
V. RAMASWAMI, JJ.]
West Bengal Premises Rent Control (Temporary Provi.sions) Act,
1950 (West Bengal Act 17 of 1050) ss. 12(1)(c), 13-Sub-lettingPermission, when necessary-Rights of sub-tenants in violation of
agreement-If saved.
Re3pondent No. 2 was a monthly tenant of the appellant on a
condition that he would not sublet the premises of any portion thereof. Under the West Bengal Premises Rent Control (Temporary
Provisions) Act, 1948 the appellant filed a suit against respondent
No. 2 for his eviction on the ground that the tenancy had been
determined on account of default in payment of rent. While the
suit was pending, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force. The suit was decreed
and the appellant took out execution proceedings. The suit was resisted by respondent No. 1 who alleged that he had taken subtenancy from respondent No. 2. Respondent No. 1 also filed a suit
impleading the appellant and respondent No. 2 and prayed for a
deolar~tion that on the termination of the tenancy of respondent
No. 2, respondent No. 1 became a direct tenant of the appellant
under s. 13(2) of the 1950 Act and he was not liable to be evicted
in the execution case. The suit was decreed by the trial court, which
was affirmed by the appellate courts. In appeal by special leave:
HELD: The appeal must be dismissed. [334 Fl
In the case of sut-letting by a tenant of the first degree no
consent of the landlord to sub-letting is required as a condition precedent for acquisition by the sub-lessee of the tenant's rights, but
in the case of sub-letting by a tenant inferior to the tenant of the
first degree the consent of the landlord and also of the tenant of
the superior degree above him to the sub-letting is necessary if the
sub-lessee is to acquire the rights of the tenant contemplated by
s. 13(2). [332 HJ
.
The clause "and the sub-lease is binding on the landlord of such
last mentioned tenant" in s. 13(2) does not govern both classes of
tenanci~s. namelv, sub-tenancies created by "tenant of first de~ee"
and also by "a tenant inferior to the tenant of the first degree' as
defined in s. 13(1). [333 Bl
It is not correct to say that the rights mentioned in s. 13(2)
are conferred upon the sub-lessee only in a case where sut~letting
is not in violation of the agreement of lease. The right of. sub-ten":nt
even in a case in which the landlord has brought a smt foll ev1e>-
tion against the tenant under s. 12(1)(c) are saved and the righ'.s
and obligations of sub-tenants, would be governed by the provisions of s. 13. [334 A]
In Enacting s. 13 of the Act the legislature has deliberately enlarged the class of sub-tenants to be prot_ected fr~m evi.ction by the
land'ords and the language of the sect10n dealing w•th the. sublesso2s has been deliberatelv changed and nroper effect and mterpretation must be given to the language of the new sec~ion, [334 El
330
SUPREME COURT REPORTS
[1965) 3 s.c.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 125 of
A
1963.
Appeal by special leave from the judgment and decree dated
June 2, 1959 of the Calcutta High Court in Appeal from Appellate Decree No. 536 of 1964.
S. Murthy and B. P. Maheshwari, for the appellant. M. C.
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Chakraborthy and R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by
Ramaswami, ;r. The sole question for determination in this
appeal is whether respondent No. 2-Atul Chandra Patitundi
is protected from being evicted by the landlord from the premises
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No. 90A, Harish Mukerjee Road situated in Bhawanipur, District
24-Parganas in view of the provisions enacted in s. 13(2) of the
West Bengal Premises Rent Control (Temporary Provisions) Act,
1950 (West Bengal Act XVII of 1950), hereinafter called the
1950 Act.
Some time before 1948, respondent No. 2 was inducted as a ·n
monthly tenant under Rai Sahib Chandan Mal Inder Kumar, the
predecessor-in-interest of the appellant. One of the conditions of
the lease was that the tenant will not sub-let the premises or any
portion thereof. As respondent No. 2 defaulted in the payment
of rent the appellant made an application under s. 14 of the
Calcutta Rent Ordinance. 1946 for permission to sue him for
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eviction. The application was granted by the Second Additional
Rent Controller on September 10, 1948. On December I, 1948,
the West Bengal Premises Rent Control (Temporary Provisions)
Act, 1948 (West Bengal Act XXXVIII of 1948). hereinafter
call~d the 1948 Act, came into force. On September 15, 1949
the appellant filed a Title Suit No. 171 of 1949 in the Court of
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the !st Subordinate Judge, Alipore, 24-Parganas against respondent No. 2 for his eviction on the ground that the tenancy had
been determined on account of default in payment of rent. While
the suit was pending, the 1950 Act came into force on March 31,
1950. The suit was eventually decreed in favour of the appellant
on February 25, 1951. The appellant took out execution proceedG
ings being Title Execution Case No. 39 of 1951 of the Court of
the First Sub,Jtldge. Alipore. The suit was resisted by respondent
Ne I who alleged that he had taken sub-tenancy from respondent
Nci. 2. Respondent No. I also filed Title Suit No. 578 of 1951
in the Court of 4th Munsif at Alipore impleadin~ the appellant
and respondent No. I and praying for a declaration that on the
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termination of the tenancy of respondent No. 2, respondent No. I
became a direct tenant of the appellant under s. 13(2) of the 1950
Act and that he was not liable to be evicted in the execution case.
The suit was decreed in the Court of the Subordinate Judge and
the decree was affirmed by the District Judge of 24-Parganas in
Title Appeal No. 157 of 1953. A Second Appeal was also dismissed by the Calcutta High Court on June 2. 1959.
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iNDRA KUMAR KARNANI v. ATUL CHAXJJRA (Ranu;swarni, J.)
331
On behalf of the appellant the argument put forward was
that the sub-lease granted by respondent No. 1 in favour of respondent No. 2 was contrary to the agreement of lease and not
binding upon the appellant. It was, therefore, submitted that the
sub-lessee did not acquire the status of a tenant under s. 13(2)
of the 1950 Act and the sub-lessee could not be deemed to be
holding directly under the appellant within the meaning of that
sub-section. The question at issue depends upon the proper interpretation of s. 13(2) of the 1950 Act which states:
"13. (2) Where any premises or any part thereof have
been or has been sub-let by 'a tenant of the first degree'
or by 'a tenant inferior to a tenant of the first degree', as
defined in explanation to sub-section (!), and the sublease is binding on the landlord of such last mentioned
tenant, if the tenancy of such tenant in either case is
lawfully determined otherwise than by virtue of a decree
in a suit obtained by the landlord by reason of any of the
grounds specified in clause (h) of the proviso to subsection (]) of section 12, the sub-lessee shall be deemed
to be a tenant in respect of such premises or part, as the
case may be, holding directly under the landlord of the
tenant whose tenancy has been determined, on terms and
conditions on which the sub-lessee would have held under
the tenant if the tenancy of the latter had not been so
determined :
Provided that it shall be competent for the landlord,
or any person deemed under this section to be a tenant
holding directly under the landlord, to make an application to the Controller for fixing rent of the premises or
part thereof in respect of which such person is so deemed to
be a tenant and until the rent is fixed by the Controller
on such application such person shall be liable to pay to
the landlord the same rent as was payable by him in
respect of the premises or part thereof, as the case may
be, to the tenant before the tenancy of the tenant therein had been determined. The Controller in fixing the rent
shall not determine such rent at the rate which is beyond
the limit fixed by paragraph (4) of Schedule A. The rent
so fixed shall be deemed to be the standard rent fixed
under section 9".
Section 13(1) is also relevant in this connection and it states :
"13. (!) Notwithstanding anything contained in this
Act, or in any other law for the time being in force, if a
tenant inferior to the tenant of the !st degree sub-lets in
whole or in part the premises let to him except with the
consent of the landlord and of the tenant of a superior
degree above him, such sub-lease ~hall not be binding
on~ such non-consenting landlord, or on .such non-consenting tenant.
SUPREME COURT REPORTS
(1965] 3 S.C.R,
Explanation-In this sub·section-
(a) 'a t'.)nant of the first degree' means a tenant who
does not hold under any other tenant;
(b) 'a tenant inferior to the tenant of the first degree'
means a tenant holding immediately or mediately
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under a tenant of the first degree;
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(c) ']andkrd' mears the landlord of a tenant of the
first tleg1ee".
It is r1ianifest that s. 13(1) makes a distinction between the two
classes of sub-tenancies, namely, (1) sub-tenancy created by a
tenant of the fast degree, and (2) sub-tenancy created by "a tenant o
inferior to the tenant of the first degree" by which is meant a
tenant holding immediately or mediately under a tenant of the
first degree. So far as the second ch:ss of sub-tenancy is concerned,
the sub-section ei;acts that the sub-letting will not be binding upon
the landlord or on the tenant of the superior degree unless each
of them h1s consented to :he transaction of sub-lease. There is
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no express provision in s. 13(1) that a sub-lease of the 1st class
requires previous consent of the landlord or that in the absence
of such consent the sub-lease shall not be binding upon the nonconsenting landlord. Section 13(2) refers to both the classes of
sub-leases - and states that if the sub-lease has been made by a
tenant of the first degree, the sub-lessee shall be deemed to be a
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tenant in respect of the premises demised to him if the tenancy of
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such tenant is lawfully determined under the provisions of the
Act otherwise than by virtue of a decree in a suit obtained by the
landlord by reason of ar,y of the grounds specified in cl. (h) of
the proviso to sub-section (1) of section 12. In the case of second
class of sub-leases, i.e., sub-leases created by a tenant inferior to
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the tenant of the 1st degree also the sub-lessee will acquire the
status of a tenant as mentioned in the statute but in this -cl'ass of
sub-leases the rights of the tenant are conferred on the sub-lessee
only if the sub-lease is binding upon the landlord.
In enacting
s. 13(1) and (2) of the 1950 Act the legislature has deliberately
made a distinction between the two classes of sub-tenancies and
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provided that in the case of sub-lease of the first class, namely,
sub-Iea~es created by a tenant. of the first degree, the sub-lessee
will acquire the status of the tenant in respect of the premises
demised, thou.~h the sub-lease is not binding upon the landlord
according to the agreement of lease. The legislature has further
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provided that in the case of sub-lease of the second
~1ass the
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sub-lessee will acquire the status of a tenant of the premises only
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if the sub-lease. is binding upcm the "landlord" as defined in
s. 13(1\. It follows that in the case of sub-letting by a tenant of
the fir:t de~ree no consent of the landlord to sub-Jetting is required
as a condition precedent for acquisition by the sub-lessee of tho
tenant's right but in the case of sub-letting by a tenant inferior
to the tenant of the first degree the consent of the landlord and
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INDRA KUMAR KARNAN! v. ATUL CHAJWRA (Ramaswami, J.)
3~3
also of the tenant of the superior degree above him to the subletting is necessary if the sub-Jessee is to aoquire the rights of the
tenant contemplated by s. 13(2). It was argued on behalf of the
appellant that the clause "and the sub-lease is binding on the landlord of such last mentioned tenant" in s. 13(2) governs both
classes of tenancies, namely, sub-tenancies created by "tenant of
the first degree" and also by "a tenant inferior to the tenant of
the first degree" as defined in s. 13(1). We do not consider that
there is any justification for this argument. Having regard to the
grammatical structure and context of ·the clause it is obvious that
it imposes a qualification only upon sub-tenancies of the second
class. It was also submitted on behalf of the appellant that if a
sub-lease is granted by the tenant of the first degree against the
terms of. the contract of lease the landlord is entitled under s.
12(J)(c) of the 1950 Act to bring a suit for eviction of the tenant
and that in such a suit the tenant and the sub-lessees are both
liable to be evicted from the premises in question. It was submitted,
therefore, that the rights mentioned in s. 13 (2) are conferred upon
the sub-Jessee only in a case where sub-letting is not in violation
of the agreement for lease. In our opinion, there is no substance
in this argument. Section 12(1)(c) states:
"12. (!) Notwithstanding anything to the contrary in
any other Act or law. rto order or decree for the recovery
of possession of any premises shall be made by any court
in favour of the landlord against a tenant, including a
tenant whose lease has expired :
Provided that nothing in the sub-section shall apply
to any suit for decree for such recovery of possession,-
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(c) against a tenant who has sub-let the whole or a
major portion of the premises for more than seven
consecutive months:
Provided that if a tenant who has sub-let major portion of the premises agree to possess as a tenant the portion of the premises not sub-let on payment of rent fixed
by the Court. the Court shall pass a decree for ejectment from only a portion of the premises sub-let and fix
proportionately fa~ rent fo~ the portion kept in possession
of such tenant, which portion shall thenceforth constitute
premises under clause (8) of section 2 and the rent so
fixed shall be deemed standard rent fixed under section 9
and the rights and obligations of the sub-tenants of th~
portion from which the tenant is ejected shall be the same
as of sub-tenants under the provision of section 13;".
It is manifest thats. 12(l)(c) saves the right of sub-tenants even in
n case in which the landlord has brought a suit for eviction against
334
SUPREME COURT REPORTS
(1965) 3 S.C.R.
the tenant under s. l 2(1)(c) and the rights and obligations of subtenants would be governed by the provisions of s. 13. Counsel on
.behalf of the appellant also referred to the provisions of s. 11 (3)
of the 1948 Act which states:
"11.(3) Any person to whom any premises or any part
thereof have been or has been lawfully sublet by a tenant
shall, where the interest of the tenant in such premises or
part is lawfully determined otherwise than by virtue of a
decree or order obtained by the landlord on any of the
grounds specified in clause (f) of the provL~o to sub-section
(!), be deemed to be a tenant in respect o.f such premises
or part, as the case may be, holding directly under the
l;tndlord on the terms and. conditions on which such person would have held under the tenant if the interest of the
tenant had not been so determined:
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It was pointed out that rights are conferred by the statute only
upon sub-lessees to whom the premises have .been "lawfully" sublet
.by a tenant. It was contended that though the 1948 Act was repealed and substituted by the 1950 Act, the provisions of s. 13(2)
of the latter Act have to be construed in the context of the language of s. 11 (3) of the 1948 Act. We are unable to accept this argument as correct. It is manifest that in enacting s. 13 of 1950 Act
the legislature has deliberately enlarged the class of sub-tenants
to be protected from eviction by the landlords and the language of
the section dealing with the sub-lessees has been deliberately changed and proper effect and interpretation must be given to the langu-·
age of the new section.
·
For the reasons expressed, we hold that the suit of respondent
No. l has been rightly decreed and this appeal must be dismissed
with costs ..
Appeal dismissed ..
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