Bose, J.
1. This is a suit for a declaration that the plaintiff has become a tenant holding directly under defendants 1 and 2 in respect of 2 rooms and a bathroom on the 1st floor and a Kitchen on the 2nd floor in premises No. 18 Gour Mohan Mukherjee Street, Calcutta, at a rent of Rs. 21/- per month inclusive of the charges for electricity, for an injunction restraining defendants 1 and 2 and their servants and agents from executing the decree or order for possession dated 10-1-1950 passed in Small Cause Court, Suit No. 1117 of 1949 and other reliefs.
2. The case of the plaintiff is that defendants 1 and 2 are the landlords of premises No. 18 Gour Mohan Mukherjee Street, Calcutta. Defendant 3 was the tenant under defendant 1 of the said entire premises No. 18, Clour Mohan Mukherjee Street, at a rent of Rs. 40/- per month. On 10-1-1943 defendant 3 lawfully sublet 2 rooms and a bathroom on the 1st floor and a kitchen on the 2nd floor, being a portion of the said premises at a rent of Rs. 19/- per month.
The rent was subsequently increased to Rs. 21/- per month inclusive of charges for electricity and the plaintiff had been and was paying the Gafd rent, regularly upto 15-8-1950, when defendant 3 vacated the said premises and left for an unknown destination. Since then the plaintiff could not pay or deposit renta inasmuch as the whereabouts of defendant 3 were not known ana defendants 1 and 2 refused to accept rents from the plaintiff.
Prior to this defendants 1 and 2 instituted proceedings for ejectment being Suit No. 1117 of 1949 against defendant 3, inter alia, on the ground that defendant 3 sublet a major portion of the said premises without the previous consent or authority of defendants 1 and 2, and had obtained a decree or order for possession against defendant 3 on 10-1-1950.
The said order or decree for possession directed defendant 3 to vacate the premises by 3-7-1950. Subsquently the date for making over possession was extended till 15-8-1950 and finally upon the application of the plaintiff such date for delivery of possession was extended till 19-1-1951. It is alleged that upon the passing of the said decrea against defendant 3 the plaintiff became a tenant holding directly under defendants 1 and 9 under the provisions of the Rent Control Act, 1948.
It may be noted, however, that in the plaint the date of the decree Is wrongly given as 3-7-1950 and the provision under which the plaintiff claims to be the direct tenant of defendants 1 and 2 is wrongly stated to be Section 13 Sub-section (II) of the Rent Control Act, 1950.
3. Defendant 1 filed her written statement on 5-2-1951 and defendant 2 has filed a voluntary written statement on 4-7-1951.
4. In the written statements there is no denial about the period of subletting or of the fact that the plaintiff regularly paid rent to defendant 3 till 15-8-1950 or of the fact that the plaintiff could not pay or deposit further rent for the reasons stated in para 3 of the plaint. It is, however, denied that defendant 3 had any right or authority to lawfully sublet any portion of the said premises to the plaintiff or that the alleged subletting was at all lawful.
It is also denied that the plaintiff had or has become a direct tenant under defendants 1 and 2. It is stated further in the written statements that a decree for ejectment was passed by the Small Cause Court on 10-1-1950 on the ground that defendant 3 had unlawfully sublet the major portion of the said premises without any contract or authority in writing expressly permitting such subletting. It is further stated that the said decree is binding on the plaintiff and the latter has no cause of action for the suit.
5. The following issues were raised at the hearing.
(1) Has any portion of the premises No. 18, Gour Mohan Mukherjee Street, Calcutta, been lawfully sublet' to the plaintiff by defendant 3?
(2) Has the plaintiff become a direct tenant under defendants 1 and 2 under the provisions of West Bengal Act XXXVIII of 1948?
(3) On what ground was the decree dated January 10, 1950, for ejectment in Suit No.1117 of 1949 of the Court of Small Causes passed?
(4) To what reliefs, if any, is the plaintiff entitled?
6. Issue No. 1: Mr. Oouri Mitter the learned counsel for the landlord defendants 1 and 2 has contended that if a tenant sublets the demised premises so as to bring himself within the mischief of Clause (b) Sub-clause (i) and (ii) of the Proviso to Section 11(1) of W. B. Rent Control Act 1943 then the subletting cannot be considered as a lawful subletting within the meaning of Section 11(3) of the said Act and the tenant is, therefore, not entitled to the benefit of this Section 11(3) of the Act, and cannot claim to be a direct tenant under the landlord.
Mr. Mitter has placed reliance on the cases of 'Norman v. Simpson' (1946) 1 All ER 74 (A), 'Maley v. Fearn' (1946) 2 All ER 583, (B), 'Carter v. Green' (1950) 1 All ER 627 (O) and the decision of Banerjee J. in 'Preeambada Mitter v. Jogesh Chandra Basu', Suit No. 604 of 1946 D/- 16-6-49 (Cal) (D) and two decisions of P. B. Mukharji J. reported in 'Premier National Bank Ltd. v. Bhairodan Sethia' 53 Cal WN 555 (E) and 'Gour Mohan' Roy v. Sailendra Nath Saha' : AIR1950Cal152 in support of his proposition.
7. It may be pointed out that P. B. Mukharji J. has taken a different view of the meaning of the words 'lawfully sublet' as used in Section 11(3) of the Act of 1948, in the case of 'Monoranjan Bhattacharjee v. Satyacharan Law' 85 Cal LJ 81 (G). This decision was given on 12-1-1950. The two other decisions of Mukharji J., were given earlier on 28-1-1949 and 27-7-1949 respectively.
In these earlier decisions Mukharji J., referred to the English authorities and also to the decision of Banerjee J., and came to the conclusion that if a tenant commits any of the acts mentioned in Sub-clauses (i) and (ii) of Clause (b) of the Proviso to Section 11(1) of the Act the supletting is not lawful within the meaning of Section 11(3) of the Act.
In the later decision 85 Cal LJ 81 (G) which is based on an interpretation of the different provisions of Section 11 of the Act, independently of the English sections and the English authorities he has come to a contrary conclusion.
8. In the case of 'Haridas Ghose v. Sm. Gangamoyee Dey', Suit No. 3596 of 1949, D/- 30-3-1950 (Cal) CH) I referred to two Indian decisions and expressed my agreement with the view taken by Mukharji J. in 85 Cal LJ 81 (G). I pointed out that the English Act and the West Bengal Act of 1948 were not in 'Pari Materia'.
I pointed out that Section 11(3) of the Bengal Act states expressly that it is only when a decree for possession is obtained by the landlord against the tenant on the ground mentioned in Clause (F) of the proviso to Section 11(1) of the Act that the Sub-tenant will be deprived of the benefit of Section 11(3) of the Act.
It follows, therefore, from this by implication, that if the landlord obtains any decree for ejectment against the tenant on any other ground mentioned in the different clauses of the Proviso to Section 11(1) including Clause (b) Sub-clauses (i) and (ii) the right of the Sub-tenant as given by Section 11(3) is not affected thereby in any way.
9. It may be noted further that even if the English cases are applicable in construing Section 11 of the Bengal Act, there is no justification for extending the principles of these decisions beyond what has been actually decided in these cases. The case in (1950) 1 All ER 627 (C) seems to support the proposition that a subletting in contravention of a clause in the lease prohibiting such subletting is unlawful, no matter whether it gives a right of re-entry to the landlord or not.
The English cases (except perhaps the case of 'Roe v. Russell' (1928) 2 KB 117 (I) have not decided that mere subletting of whole or major part of the premises, without contract or authority, in writing expressly permitting such subletting, is unlawful.
10. In the case of 'Hyde v. Pimpley' (1952) 2 All ER 102 at p. 106 (J). Sir Raymond Evershed, the Master of the Rolls, in delivering the judgment of the Court of Appeal made the following observations while construing para (d) of Schedule I of the English Act of 1933 and Section 15(3) of the English Act of 1920:--
'That para (para (d)) is, after all expressed not as providing a remedy for the landlord but as a condition for the exercise by the Court of its power to make an order for possession. No doubt the circumstances of a particular case may be such as in effect, to estop a landlord from asserting the facts necessary to show that the condition is fulfilled.
On the other hand, if a lease or contract is still subsisting, the mere fact that there has been an assignment or underletting without the landlord's consent will not give rise to any right in the landlord to claim possession, e.g., where by the terms of the lease or contract the tenant is at liberty to assign or underlet as he wills' (page 105).
11. Then again at page 106 the learned Master of the Rolls made the following observation:--
'In the English case Of 'Roe v. Russell', Eve J. sitting in the Court of Appeal, intimated his view (1928) 2 KB 117 at p. 141 (I)) that an assignment or underletting of the whole premises should be regarded' as 'unlawful' for the purposes of the Act, whatever the terms of the original contract, but the learned Judge's language in the context in which it appears, may perhaps be properly confined to the case of an assignment or underletting by the 'statutory tenant, (The underlining (here into ' ') is mine).
We do not find it easy on authority or principle to regard an assignment or underletting of the whole premises by a contractual tenant as being for any purposes 'unlawful' if by the terms of the contract there was no restriction on the tenant's power to assign or underlet or if the assignment or underletting having been in breach of the tenant's obligations, the breach had been afterwards waived by the landlord. But it is in the circumstances unnecessary for us to express any conclusion on the point and we, therefore, say no more about it'. (page 106).
The whole of this page 106 may be read with profit in order to understand the true implications of the observations made by the Court of Appeal.
12. In the case before me the subletting in favour of the plaintiff was made when defendant 3 was still contractual tenant. It was after the Notice to quit dated 10-12-1948 expired at the end of December 1948, that defendant 3 became a statutory tenant. The Rent Control Act of 1948 had come into force on 1-12-1948. I, therefore, fail to see why the subletting in favour of the plaintiff will be an unlawful subletting.
13. I adhere to the view expressed by me In the case in Suit No. 3596 of 1949, D/- 30-3-1950 (Cal) (H) and hold that the subletting in favour of the plaintiff was a lawful subletting.
14. Issue No. 2: Mr. Gouri Mitter has further contended that the tenancy of defendant 3 under defendants 1 and 2 being a monthly tenancy and the Sub-tenancy granted by defendant 3 In favour of the plaintiff since 1943 being a monthly tenancy, the provisions of Section 11(3) of Act of 1948 cannot be availed of by the plaintiff inasmuch as Section 11(3) is not retrospective in operation and, therefore, cannot apply to the Sub-tenancy of the plaintiff which had its inception in 1943 and which being a monthly tenancy must be deemed to be one continuous tenancy for an indefinite period of time.
Mr. Mitter relies on the observation of P. B. Mukharji J. in the case in : AIR1950Cal152 to the following, effect:
'It is not a new tenancy every month but a part and parcel of the original tenancy'.
15. Mr. Mitter also placed reliance on the decision of Gentle J. and Beaumont C. J. in the cases referred to in Mukharji J.'s judgment and which are reported in 'Usharani Debi v. Research Industries Ltd.' 50 Cal WN 461 (K) and Utility Articles . AIR 1943 Bom 306 (L) in support of this proposition.
16. Mr. Mitter further submitted 'that the words 'have been or has been lawfully sublet' in Section 11(3) of the Act indicate that the section applies only to Sub-leases which are granted after the Act of 1948 came into force and not to subleases granted prior to the date when the Act came into operation.
17. It appears to me that there is hardly any room for doubt that the section can be availed of by the plaintiff in the facts and circumstances of this case. Although the Sub-tenancy commenced in 1943 it was subsisting on 1-12-1948 when the Act of 1948 came into force and the tenancy of defendant 3 was not determined till the decree or order for possession was passed by the Small Cause Court on 10-1-1950. As soon as the decree was passed the plaintiff became a direct tenant under defendants 1 and 2.
18. There has been several decisions of this Court where similar contention as put forward by Mr. Mitter was put forward but it was negatived. Clough J. construed the effect of the word 'has' in the proviso of Section 12 of the Rent Ordinance of 1946 and held that the proviso applied to subletting before and after the Act. See 'Sheik Mohammed Omer v. T.B. Trams' 52 Cal WN 693 (M) See also 'Atul Krishna Basu v. Gonesh Chandra Dhar' 52 Cal WN 379 (N); Gurupada Haldar Jiban Krishna Das, a firm v. Arjun Das Goenka' AIR 1949 Cal 61 (O); 'Purusottam Lal v. Mt. Hardi Bai' : AIR1947Cal401 and Gangamoyee Dey v. Mahindra Chandra' : AIR1950Cal225 ,
19. If the Interest of defendant 3 as a tenant had been determined by a decree for ejectment prior to the coming into force of the Act of 1948 it could very well be contended that the plaintiff would not be, entitled to claim the benefit of Section 11(3) of the Act which confers ft new right on Sub-tenants which did not hitherto exist. (See 'Brojendra Kumar v. Moslem All Molla' AIR 1949 Cal 610 (R) and 'Tarak Pada Kirti v. Sashi Probha Debi' 55 Cal WN 65 (S)).
20. If the contention of Mr. Mitter is correct then the decree which defendants 1 and 2 have obtained in the Small Cause Court in 10-1-1950 is a nullity being baaed on subletting which was before the Act of 1948, and the plaintiff is, therefore, entitled at least to the injunction asked for, restraining defendants 1 and 2 from executing the decree even if it is found that he is not entitled to the declaration as asked for. A decree which is a nullity cannot be binding on the plaintiff even as a Sub-tenant.
21. The language of proviso (b) of Section 11(1) of Act 1948 which is 'where the tenant has sublet or otherwise transferred' has been the subject of determination in the case of 'Santllata Ghose v. Sheik Ebrahim' 53 Cal WN 692 at p. 694 (T), by Banerjee, J. and it was held following certain earlier decisions of this Court that the Act of 1948 applied to sublettings before the Act as well as to sublettings after the Act.
22. It is to be noted, however that in the case of 'Mohamed Ebrahim v. Bani Madhab' : AIR1952Cal196 Banerjee J. sitting with Harries C. J., kept this point open, although he had himself held in 53 Cal WN 692 (T) that the Act applies to Sub-leases granted both before and after the Act.
23. In view of the fact that the learned Judges of this Court -have held in several cases that the proviso (b) of Section 11(1) of the Act of 1948 and the proviso of Section 12 of the Ordinance of 1946 are applicable to sublettings made before and after the Act and the Ordinance in question, I hold that Section 11(3) of the Act applies not only to Sub-leases created after the Act but also to those created before the Act but which have subsisted at the time the Act of 1948 came into operation & thereafter.
24. The next point of Mr. Mitter is that the right acquired by the plaintiff if at all, under Section 11(3) of the Act of 1948 which was a temporary statute, ceased to exist as soon as the said Act was repealed by Section 45 of the W. B. Rent Control Act, 1950, and, therefore, the plaintiff cannot get any relief in this suit.
Mr. Mitter has drawn my attention to the-decisions reported in 'Bansgopal v. Emperor' : AIR1933All669 and 'Fenton Charles Aubrey v. Kathleen May Aubrey' AIR 1947 Lah 414 (W), for showing that the provision in the General Clauses Act which deals with repeals and save transactions completed and right acquired, under the repealed statute, has no application to temporary statute but applies only to permanent statutes.
25. I am unable to accept this proposition as correct. The expressions 'Bengal Act' and 'Enactment' have been defined in the Bengal General Clauses Act and Section 8 of the said Act makes it clear that it applies to any enactment. I, therefore, fail to see why Section 8 is not attracted to the case of repeal of Act of 1948 by Section 46 of the W. B. Rent Control Act of 1950. The Allahabad and Lahore cases also do not decide that the General Clauses Act has no application to cases of repeal of temporary statutes. Those cases hold that the General Clauses Act does not apply to cases of expiry of temporary statutes by effluxion of time.
26. Even if it is assumed that Section 8 of the Bengal General Clauses Act itself is not in terms I applicable to cases of repeal of temporary statutes there is no doubt that the principle of the section applies- to such statutes.
27. It has been held that where a temporary statute comes to an end, by effluxion of time, the principle of Section 6 of the General Clauses Act applies even if the section itself does not in terms apply and it saves all rights acquired or vested and all transactions completed under the temporary statute (See 'Jagendra Chandra Roy v. Superintendent Dum Dum, Special Jail' : AIR1933Cal280 ).
So if even in the case of expiry of a temporary Statute the principles embodied in Section 6 can apply, there is hardly any room for doubt that the principles will apply in the case of repeal of a temporary statute. Therefore, this contention of Mr. Mitter fails.
28. The last point of Mr. Mitter Is that as the plaintiff admittedly did not pay rent to defendants 1 and 2 since 10-1-1950 when he claims to have become a direct tenant under defendants 1 and 2 he is deprived of having the benefit of Section 11(3) of the Act by reason of the provisions of Section 12 of the Rent Control Act of 1948.
29. Now Section 12 of the Act applies to the case of a 'tenant' under the landlord. The plaintiff who was a Sub-tenant became direct tenant on 10-1-1950 when the decree or order was passed In the Small Cause Court against defendant 3. But his liability to pay rent to defendants 1 and 2 did not arise or accrue until a month had elapsed, the tenancy being a monthly tenancy, and the plaintiff had perhaps another fifteen days within which he could pay the rent to the plaintiffs or deposit rent with the Rent Controller.
So as he was not a defaulter at the time or moment he became a direct tenant, Section 12 did not stand in the way of the plaintiff taking the benefit of Section 11(3) of the Act at that time. If the plaintiff has subsequently become a defaulter at any point of time, he may have rendered himself liable to ejectment and a suit for possession may filed against him in the appropriate Court.
So long as no decree for ejectment is obtained, the plaintiff remains a statutory tenant under defendants 1 and 2 under the provisions of Section 11(3) of the Act. It may be that defendants 1 and 2 will not file any suit for ejectment against the plaintiff at all. In such a case the statutory tenancy will continue.
I, therefore, do not see any reason why I shall in the exercise of my discretion refuse to grant a declaration in this suit, of the right or status, which the plaintiff has acquired by virtue of a statute or in other words by operation of law, on 10-1-1950 and which continues until evicted.
30. Mr. A. C. Lahiri drew my attention to the case reported in 64 TLR 466 (Y) and submitted that defendants 1 and 2 by serving the notice, to quit on defendant 3 had waived the breach of defendant 3 as to subletting, even if such subletting was at all unlawful. It is not necessary to decide this point conclusively in view of my decision on the other points.
It may be said, however, in passing that the decision cited by Mr. Lahiri is distinguishable, inasmuch as there is no question of the tenant Incurring a forfeiture in the present case or the landlords exercising any right of re-entry. It was in the facts and circumstances, essential under the Indian Law to serve a notice to quit on defendant 3 in order to maintain a suit for ejectment against the said defendant. So from the mere service of a notice to quit, waiver cannot be inferred.
31. Mr. A. C. Lahiri also submitted that as the major portion of the premises has not been sublet to the plaintiff, the subletting to the plaintiff was not unlawful.
32. There is, however no definite evidence as to the entire accommodation available in the house, and so the Court cannot come to a finding as to whether the plaintiff is In occupation of the major portion or not.
33. Mr. Lahiri also drew my attention to Section 50, T. P. Act, and Section 199, Calcutta Municipal Act, 1923, and Section 246, Calcutta Municipal Act of 1951 to show that no rent was due from the plaintiff to defendants 1 and 2 by reason of payment of rent to defedant 3 till 15-8-1950 and the owners' and occupiers' share of Corporation Tax.
Mr. Mitter has pointed out that these sections are of no assistance to the plaintiff as the plaintiff is bound under the Rent Act to tender the rent to the landlords or to deposit the same with the Rent Controller. I do not express any opinion on this point as it is not necessary to do so for the purpose of this case.
34. Mr. Lahiri also argued that as the plaintiff has been a Sub-tenant from 10-1-1943 to 10-1-1950, that is for a period of 7 years, the plaintiff became a direct tenant under Section 13 of the Rent Control Act, 1948. Mr. Lahiri placed reliance on the decision of Mukharji J. in the case reported in : AIR1950Cal152 .
If this section 13 is available to the plaintiff then of course Section 12 of the Act of 1948 does not come into operation nor does it stand in the way of the plaintiff becoming a direct tenant, because the opening words of Section 13 are 'Notwithstanding anything contained in this Act........'. So the operation of Section 12 is excluded and the question whether the provision of Section 12 was complied with or not becomes immaterial or irrelevant.
But Mr. Mitter has pointed out that in view of the decisions of this Court in 'Foolmani Dassi v. Indian Semal Cotton Plantation Ltd.' Suit No. 2013 of 1948, D/- 25-1-1950 (Cal) (Z), per Sinha, Section B., J., and in 'Agarwalla v. Ashraf', Suit No. 1398 of 1950, D/- 6-7-1950 (Cal) (Z1) this contention is not tenable. I think that Mr. Mitter's contention is correct and the plaintiff cannot take advantage of Section 13 in the facts and circumstances of this case.
35. Issue No. 3: The decree dated 10-1-1950 was obtained on the ground that defendant 3 had sublet the major portion of the premises in suit for more than six consecutive months without permission or authority in writing of the landlords.
36. Issue No, 4: In my view the suit must succeed. There will be a decree in favour of the plaintiff for declaration and Injunction in terms of prayers (b) and (c) of the plaint.
37. As the matter is not free from doubt eachparty will bear and pay his or her own costs ofthis suit.