P L D 1969 Dacca 399 (PLP)

The plaintiff who is the administrator to the estate of late Babu Priya Nath Das filed a suit for ejectment of defendant No. 1 who was a monthly tenant in respect of the suit premises at a monthly rent of Rs.

21. It is alleged that defendant No. 1 had defaulted payment of rent from Chaitra, 1361 B.S. to Kartick, 1364 B.S. The further allegation was that defendant No. 1 had sublet the premises without any authority and inducted the defendant No. 2 without permission of the landlord. The plaintiff obtained permission of the Rent Controller and served notice on the defendants to vacate the premises but the defendants had not vacated the premises and were trespassers and the plaintiffs were entitled to recover possession as well as damages. The defendant No. 2 who was a sub‑lessee of defendant No. 1 appeared and contested the suit. Defendant No. 2's case was that he was not a defaulter and he was not served with a notice under section 106 of the Transfer of Property Act and that he was a sub‑lessee and his sub‑lease was legal and he purchased the commercial undertaking of defendant No. 1, the suit property being stationary shop and as such he was not legally liable to be evicted but would stand in the shoes of defendant No.

1. The learned trial Court found that defendant No. 1 was defaulter. But he found that although there was a contract to the contrary there was subletting by the defendant No. 1 to the defendant No.

2. But he found that the tenancy was with regard to the premises used mainly for stationary shop and defendant No. 1 while subletting had also sold the said business to the defendant No. 2 and therefore, defendant No. 2 was entitled to the benefit of the provisions of subsection (3) of section 17 of the East Bengal Rent Control Act, 1953 but he held that the governing clause of subsection (3) of section 17 should be read as if governed by the clause "in the absence of any contract to the contrary" and in this case there was a contract to the, contrary and as such this subletting whether it be a business or not was altogether unauthorised. With regard to the notice under section 106 he hid said that notice was duly served on defendant No. 1 and the tenancy was determined on the expiry of Kartick, 1364 B.S. as there was no lawful contract. The case was decreed with proportional cost against defendant No. 2 and exports against defendant No. 1 and it was directed that the plaintiff will recover the vacant possession of the premises and it was further decreed that the plaintiff will recover Rs 672 as arrear house rent and rupees thirty‑three for damages. He allowed the defendants to vacate the premises within three months in default the plaintiff would get possession through due process of law. The defendant No. 2 appealed and the learned Subordinate Judge has reversed the decision of the learned Munsif to the extent that he has disallowed the plaintiff's prayer for ejectment but has found that sub‑lease was lawful being covered by t e provisions of sub section (3) of section

17. Although he found that defendant No 1 was a defaulter he held defendant No. 2 was not a defaulter although he was liable for the rent that may be found due from defendant No.

1. The administrator being aggrieved has filed this second appeal. The basis of the learned Subordinate Judge's decision in his interpretation of subsection (3) of section

17. He has said that the learned Munsif had held that since subletting was an unauthorised act on the part of the tenant, defendant No. 1 cannot avail the protection of subsection (3) of section 17 of the East Bengal Rent Control Act, 1953. The learned Subordinate Judge was of opinion that the learned Munsif had failed to consider wither the subletting even though unauthorised was with respect to the premises which was a commercial undertaking in terms of section

17. The learned Subordinate Judge held that if the under taking was a commercial undertaking as recited in subsection (3) of section 17 then there will be no ques tion of any transfer with the authority of the landlord. In my opinion, there has been a misconception on the lawn on the subject. The ordinary laws of landlord and tenant as governed by the Contract Act and the Transfer of Property Act was sought to be modified by the provisions of the East Bengal Premises and Rent Control Act, 1953 to give some sort of relief to the tenants in view of the acute shortage of premises available for rent after the second great war and partition. Previous to the Rent Control Act of 1963 there had been a temporary ordinance, East Bengal Premises Rent Control Ordinance, which had been kept alive by the East Bengal Expiry Laws Act, 1951. But these were all temporary measures. East Bengal Premises Rent Control Act itself was originally enacted to remain in force up to 31st day of 1955 but it was kept alive by amending section 1(4). The ordinary laws were to be modified only for a short period in order to meet the situation arising out of the such shortage of houses, and the Legislature took care to see that the ordinary rights are interfered with to the minimum extent. The lease of a house is a matter of contract between the landlord and a tenant and the tenancy is ordinarily governed by a contract and by the provisions or the transfer of property Act and the Contract Act. Ordinary a tenancy at will can be determined by a notice under section 106 of the Transfer of Property Act. A tenancy for a fixed period is determined on the expiration of the period. But the Legislature in section 17 of the Rent Control Act lays down that notwithstanding any thing to the contrary in the Transfer of Property Act or the Contract Act no order/decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by the said Act and‑performs the condition of the tenancy. So in section 17 subsection (1) the Legislature has clearly offered a shield to the tenant from being ejected in accordance with the provisions of the Ordinary law of the land. But the Legislature has not stopped there. Having curtailed the power of the landlord to effect the tenant the Legislature has tried to compensate the landlords by ensuring that the tenants pay the landlord the rent which is their due regularly. That is to say, the tenant can claim the privilege of not being ejected provided he does the act .which are enumerated in the Proviso of to the Act normally provisos (u), (b), (c) and (d). Proviso (e) allows the landlord for recovering the possession for bona fide requirement. So far as this case is concerned proviso (b) is relevant. Proviso (b) reads as follows :‑ "Provided that nothing in this subsection shall apply, (4) where in the ab ence of any contract to the contrary, the tenant has, without the consent in writing of the landlord, sublet the premises in whole or in part', proviso (b) clearly states that nothing in this subsection, i.e. subsection (1) of section 1'7 will apply if the tenant has done m bat is prohibited in proviso (b); that i3 to say the protection given by the sub section (i) to the tenant by the Legislature will be withdrawn of the tenant has don: what he has been forbidden to do in proviso (b). Therefore, in my opinion the landlord and the tenant will be relegated to the provisions of ordinary law if the tenant does what is forbidden by the proviso (b) which lays down that he is not to sublet without the consent of the landlord. Section 108 of the Transfer of Property Act allows the tenant to sublet in the absence of any contract to the contrary but proviso (b) of section 17 of the Rent Control Act prohibits the tenant from subletting without obtaining the consent of the landlord. Therefore, proviso (b) is a restriction on the right of the tenant given under the ordinary law. This restriction the Legislature has imposed on the tenant as it had conferred a benefit, fit on the tenant by protecting it from eviction in subsection (I) of section

17. So, if the tenant sublets contrary to the provision of the proviso (b) he is, in my opinion, relegated to the position obtaining under the ordinary law. Therefore it is wrong to say that subletting is a ground for ejectment. Subletting as provided in proviso (b) would only removed the shield with which the tenant is protected under section 17(I). If the tenant is then otherwise liable to be ejected under the ordinary law, the landlord can eject him. Subsection (3) of section 17 of the Act is a mere elaboration, of proviso (b) to subsection (1). It is not an independent sub‑clause and in my opinion subsection (3) must be read along with subsection (1), proviso (b) which begins with the words "in the absence of any contract to the contrary". Therefore, the words "in the amence of any contract t) the contrary" must also be read with subsection (3). Where there is no contract to the contrary, subsection (3) will come into play so far as subletting with regard to premises used by the tenant for commercial purposes are concerned. But if there is contract to the contrary it will govern all cases of subletting whether the premises is being used for residential purposes or for commercial purposes or for industrial purposes. Thus the interpretation of the learned Subordinate Judge is wrong. It is an admitted fact that contract between the landlord and defendant No. 1 is to the effect that no subletting was to be permitted and it is an admitted fact that subletting was done. Therefore, the 'defendant No. 1 had lost his right to be protected under section 17(1) and is liable to be ejected. The defendant No. 2 claims his right through defendant No.

1. I have held that the subletting was contrary to the contract and as such against the law and I hold that the transaction between defendants Nos. 1 and 2 has conferred no right on the defendants Nos. 2 and I hold that he is also liable to be ejected along with defendant No. l from the suit premises, The defendant No. 2 there fore, cannot be liable to pay the rent which was due from the defendant No.

1. I, therefore, allow this appeal and decree the plaintiff's suit for ejectment against both defendant No. 1 and defendant No. 2 and direct that the arrears of rent and damages as decreed by the trial Court are to be realised from defendant No.

1. The appeal, is therefore, allowed with cost, and the judgment and decree of the learned lower appellate Court is set aside and that of the learned Munsif is modified as above. A. E Appeal allowed.