Holding

The earlier judgment cannot operate as res judicata and a general permission to sub‑let is not sufficient consent under s.13 and s.14; specific written consent for each sub‑letting is required.

Summary

The Supreme Court examined an eviction suit filed by the landlord against Vega Trading Corporation, which held over a lease originally dated 1948. Clause 6 of the lease allowed the tenant to sub‑let any unused portion, but after the West Bengal Premises Tenancy Act, 1956 came into force, the tenant created new sub‑tenancies without the landlord's specific written consent. The landlord argued that the earlier 1960 suit was res judicata, while the tenant contended that the general permission in the lease sufficed as consent. The Court held that the earlier judgment could not bar the present suit because the issue of statutory violation did not arise then, and that a general permission to sub‑let does not satisfy the Act’s requirement of specific written consent for each sub‑letting. Consequently, the eviction decree against the tenant was restored. The appeal was allowed, setting aside the High Court’s decision.

Issues considered

Whether the earlier 1960 eviction suit bars the 1972 suit on the ground of res judicata.
Whether a general clause permitting sub‑letting in a lease deed satisfies the written consent requirement of s.13(1)(a) and s.14 of the West Bengal Premises Tenancy Act, 1956.
Whether failure to give notice under s.16 of the Act defeats the landlord’s eviction claim.
Whether sub‑tenants must be impleaded in the eviction suit.

Legislation cited

West Bengal Premises Tenancy Act, 1956s. 13, s. 14, s. 16

Subjects

West Bengal Premises Tenancy Actsub‑lettingwritten consentres judicataevictionlease deedlandlord‑tenant

Judgment

A SHANTILAL RAMPURIA & ORS.
v.
VEGA TRADING CORPORATION & ORS.

AUGUST l, 1989
B [M.H. KANIA AND LAUT MOHAN SHARMA, JJ.I

West Bengal Premises Tenancy Act, 1956: ss. 13, 14 & 16-
Tentant-Eviction of on ground of sub-letting without written consent-
General authority granted in lease deed-Held, not sufficient.

c Section 13(l)(a) of the West Bengal Premises Tenancy Act, 1956. . .
provides for recovery of possession where the tenant or any person
residing in the premises let to the tenant without the previous consent in ~
writing of the landlord transfers, assigns or sob-lets in whole or in part
the premises held by him. Section 14 forbids the tenant from sob-letting I
the premises without the previous consent in writing of the landlord.
D Sub-section (I) of s. 16 requires the tenant and every sub-tenant to
w horn the premises are sub-let to give notke to the landlord of the I
creation of the sub-tenancy within one month from the date of soch
sub-letting and also to notify the termination of such sub-tenancy within
one month of such termination. Sub-section (2) prescribes such a notice
in respect of sub-tenancies created with or without the consent of the L.
E landlord before the commencement of the Act, within the time specified
therein. Where there is no such consent in writing from the landlord,
sub-section (3) provides for cessation of tenant's interest in the portion
sub-let and the sub-tenant becoming a tenant directly under the land- •
lord in certain circumstances.

F
Clause 6 of the lease-deed creating tenancy for a period of three"'
years from 1st May 1948 permitted the respondent-tenant to sub-let any
portion of the demised premises which was left unused or surplus. After
expiry o( the lease period in 1951, the said tenant continued in posses-
sion, and by ho~ over became a month to month tenant. It had,
however, created certain sub-tenancies within the period covered by the
G
lease and before the Act came into forcF· A suit for its eviction brought
by the landlord in 1960 was dismissed by the trial court.

The landlord fded a fresh suit in 1972 on tbe ground that the
tenant bad created sob-tenancies in the premises after the dismissal of
H the earlier suit. The tenant advanced the plea of res judicata and con-

632
SHANT!LAL RAMPUR!A v. VEGA TRADING CORPN. 633

-~- tended that it was and is entitled to grant sub-tenancies under cl. 6 of the A
lease-deed which continues to bind the parties. Rejecting the case of res
judicata, the trial court held that a number of sub-tenants who were in
possession of the premises at the tinie of the earlier suit had been sub-
stituted later by another set of sub-tenants after the coming into force of
the Act, and that the entire premises was let out to sub-tenants which
was not consistent .with the terms of the permission as mentioned in B
cl. 6. Allowing the appeal, the High Court, however, held that the suit was
barred by the rule of res judicata.

lo.. In this appeal by special leave, it was contended for the appellants
··'lllf"-that since a large portion of the disputed property was sublet to fresh
sub-tenants after the institution of the earlier suit of 1960 there was no
scope for applying the doctrine of res judicata, and that the consent c
contemplated by the 1956 Act has to be specific in regard to each sub-
lease, which requirement was not satisfied by the general permission
granted by cl. 6 of the lease-deed.

Allowing the appeal, D

HELD: I. In the earlier suit all the sub-lessees were inducted
during the period the lease was operative, i.e., much.before the Tenancy
Act was passed. The question of violation of the provisions of the said
Act, therefore, did not arise there. The earlier judgment cannot thus
operate by way of res judicata. [637 A] ·;. >. E

, 2.1 The provisions of s.J 6 of the Act clearly indicate that permis-
sion lo the tenantto·s~b~let in generaUerms cannot be deemed to be '
consent for the purposes ofss. J3 anif l4. [637F]

2:2. The Act contemplates: that while one sub-tena_nt may be F
evict~d. anothei:illay continu~· in the premises as a tenau"t directly under
the)andloril, depending on the circumstances. Therefore, previous con-
se'ni in wriiing of the landlord with respect to each sub-letting sepa-
rately is essential. Since in the instant case consent of the appellant-
Iandlord was not obtained specifically for each of the sub-tenancies, the
respondent-tenant must be held to have violated section 14. The appel- G

• lants are thus entitled to succeed under s. IJ(l)(a). [638F, HI

M/s Shalimar Tar Products Ltd. v. H.C. Sharma & Ors., [1988] I
sec 70, referred to.
3. It was not the case of the respondent that any of the sub- H
634 SUPREME COURT REPORTS I 19891 3 S.C.R.

A tenants had sent any notice to the landlord as prescribed by the Act. /"
Therefore, the eviction suit cannot fail on the ground of non-impleading
of the sub-tenants. However, the sub;tenants cannot be bound by that
finding in the suit. They will be entitled to be heard if and when the
landlord seeks their eviction. [6398]

B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 331 y
of 1978.

From the Judgment and Order elated 3.9, 1976 of the Calcutta High
Court in Appeal from Original decree No. 407 of 1974. ~

B. Sen, A.K. Verma and S. Suikumaran for the Appellants.
c
Tapash Chandra Ray and H.K. Puri for the Respondents.

The Judgment of the Court was delivered by

D SHARMA, J. This appeal by special leave arises out of a suit
filed by the appellants for eviction of the respondent-tenant (herein-
after referred to as the Corporation) from certain premises on
Lalbazar Street, Calcutta, on the ground of sub-letting. The City Civil
Court, Calcutta, decreed the suit, but on appeal by the tenant-
Corporation, the Calcutta High Court reversed the judgment and
E dismissed the suit.

2. Admittedly the defendant-Corporation was inducted as a
tenant under a registered deed of lease dated 23.4.1948 for a period of
three years from 1.5.1948. After expiry of the period in 1951, the
Corporation continued in possession, and by holding over became a
F month to month tenant. The premises consists of a big room, described
as room No. 3, along with a small room for the use of a Darwan
(porter), staying there as guard. The big room was, from time to time,
leased out by the tenant-Corporation in portions to different sub-
tenants and in 1960 the landlord brought a suit, registered as
Ejectment Suit No. 978 of 1960, for the eviction of the Corporation on
G several grounds including sub-letting. In the meantime West Bengal
Premises Tenancy Act, 1956 had been enacted, and the provisions of
S.13(1)(a) which are in the following terms, were relied on by the
parties:
•
"S. 13. Protection of tenant against eviction. ( 1) Not-
H withstanding anything to the contrary in any other law, no
SHANTI LAL RAMPURIA Y. VEGA TRADING CORPN. [SHARMA, J .J 635
.,..
order or decree for the recovery of possession of any
A
premises shall be made by any Court in favour of the
landlord against a tenant except on one or more of the
following grounds, namely:
I

... (a) where the tenant or any person residing in the
premises let to the tenant without the previous B
consent in writing of the landlord transfers. assigns or
sub-lets in whole or in part the premises held by him;
"
)._,-
' · 3. The tenant-Corporation contended that it was permitted to
create sub-leases under clause 6 of the lease document which is quoted
" below and it cannot, therefore, be accused of sub-letting without the C
consent of the landlords:

"That the lessees shall use the demised premises as office in
connection with their business and shall be entitled to
sublet the portion which may not be used by them." o
It was asserted on behalf of the tenant-Corporation that all the sub-
tenants had been inducted in the premises in question in pursuance of
the aforesaid permission and before the expiry of the lease period in
1951. The City Civil Court decided the issue in. favour of the
• tenant-Corporation on the ground that all the sub-tenancies had been E
created within the period covered by the lease deed and before coming
in force of the West Bengal Premises Tenancy Act, 1956. The suit was
' held to be not maintainable also on the ground that a legally valid
notice terminating the tenancy had not been served on the tenant. The
suit was thus dismissed on 30.8.1962 by the judgment Ext. B(2).
F
4. The present suit was filed in 1972 alleging that the tenant-
Corporation has, without the consent of the landlords, created fresh
sub-tenancies in the premises in favour of other sub-tenants after the
dismissal of the earlier suit. The case is that after the original lease
exhausted itself by efflux of time, and otherwise also came to an end by
the landlords' notice terminating it, the general permission under G
clause 6 of the lease deed, mentioned above, also disappeared.
Alternatively the appellants have contended that even assuming that
the term in clause 6 continues to bind the parties, it does not authorise
the respondent-Corporation to sub-let the entire premises. The
dominent purpose of the lease was actual user by the tenant itself for
the purpose of running its office and clause 6 permitted it to sub-let H
636 SUPREME COURT REPORTS I 1989] 3 S.C.R.

A only such portion which was left unused as surplus. The appellants ·"'
have also alleged default of payment of rent, but the plea has been
rejected by the trial court and has not been pressed before us.

5. The suit was defended by the respondent-Corporation con-
tending that as held in the earlier suit the defendant was and is entitled
B to grant sub-tenancies, and the plaintiffs' case is fit to be dismissed.
Reliance was placed, besides the plea of res judicata, on the language
of clause 6 which according to the defendant continues to bind the
parties. The City Civil Court rejected the defendant's case of res
judicala and agreeing with the plaintiffs on the question of sub-letting,-~,
decreed the suit. It held that a number of sub-tenants who were in r
C possession of the premises at the time of the earlier suit have been
substituted later by another set of sub-tenants after the coming into
force of the Act. The learned Judge also agreed with the plaintiffs that
the entire premises was let out to sub-tenants which was not consistent
with the terms of the permission as mentioned in clause 6. The Court,
holding that the tenant had violated the provisions of the 1956 Act,
D passed a decree for eviction in favour of the· plaintiffs. The
tenant-Corporation appealed before the Calcutta High Court.

6. The High Court disagreed with the City Civil Court on the
interpretation of clause 6 of the lease deed, and held that by reason of
the judgment in the earlier suit, the present suit was barred by the rule
E of res judicata. The appeal was, accordingly, allowed and the suit
dismissed.
•
,_
7. Mr. B: Sen, the learned counsel appearing in support of the
appeal contended that since large portion of the disputed property was
sub-let to fresh sub-tenants after the institution of the earlier suit of
F 1960, there was no scope for applying the doctrine of resjudicata to the
present litigation. He inter a/ia argued that having regard to the change
in the law brought about by the 1956 Act and specially in view of the
provisions of ss. 13, 14 and 16, the appellants are entitled to a decree.

8. The factual position is that there are 16 sub-tenants as
G mentioned in Annexure B to the plaint who are occupying the disputed
room now. Out of them 5 had been inducted before the 1960 suit and i;
were parties thereto (as was rightly pointed out by the respondent-
Corporation in its application dated 17.12.1973 for amendment of the
written statement). The other 11 sub-lessees were let in after the
earlier suit, when the 1956 Act was in force. The question is whether
H the creation of these sub-tenancies violated the provisions of the Act.
SHANTILAL RAMPURIA v. VEGA TRADING CORPN. [SHARMA. J.[ 637
~
;;
In the earlier suit all the sub-lessees were inducted during the period A
the lease was operative, i.e., much before the present Act was passed.
The question of violation of the provisions of the present Act,
therefore, did not arise there. It follows that so far this issue is
~
concerned the earlier judgment can not operate by way of res judicata .
. 9. The main question which remains to be decided is whether in B
the circumstances, the plaintiffs' case, based on alleged violation of the
Act can be accepted. S. 14 enjoins that after the commencement of the
Act no tenant shall, without the previous consent in writing of the
_\,landlord, sub-let the whole or any part of the premises held by him as a
' tenant; or transfer or assign his rights in the tenancy or in any part
thereof. According to Mr. Tapas Ray, the learned counsel of the c
4 respondent-Corporation, clause 6 of the lease deed, which continued
to bind the parties by reason of the Corporation holding over, must be
treated to contain the necessary consent of the appellants. As has been
seen earlier, this clause granted a general permission to the tenant to
induct a sub-tenant. Can such a provision in general terms satisfy the
requirements of the Act? Or, as has been suggested on behalf of the D
appellant, tbe consent contemplated by the Act has to be specific in
regard to each sub-lease?

-- ·enumerated
10. S. 13 protects a tenant from eviction except on the grounds,
therein and one of the grounds in clause (a) of sub-s. (I) is
in the following terms: E

"(a) where the tenant or any person residing in the
premises let to the tenant without the previous consent in
writing of the landlord transfers, assigns or sub-lets in
whole or in part the premises held by him;"
F
The language of Ss. 13 and 14 by itself does not resolve the issue.
However, the provisions of S. 16 which is quoted below clearly
indicate that permission to the tenant to sub-let in general terms can
not be deemed to be consent for the purposes of Ss. 13 and 14:

"S.16 Creation and termination of sub-tenancies to be G
notified-( 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 H
-.1
638 SUPREME COURT REPORTS I 1989] 3 S.C.R.
Ill

A month from the date of such sub-letting and shall in the
;.
prescribed manner notify the termination of such sub-
tenancy wthin one month of such termination.

(2) Where before the commencement of this Act, the tenant ,,!!I
with or without the consent of the landlord, has sub-let any
B premises either in whole or in part, the tenant and every '.l'
sub-tenant to whom the premises have been sub-let shall
give notice to the landlord of such sub-letting in the
prescribed manner (within six months) of the commence-
ment of this Act and shall in the prescribed manner notify_ ,l
the termination of such sub-tenancy within one month of '
c such termination. '
:.
(3) Where in any case mentioned in sub-section (2) there is
no consent in writing of the landlord and the landlord
denies that he gave oral consent, the Controller shall, on an
application made to him in this behalf either by the land-
D lord or the sub-tenant within two months of the date of the
receipt of the notice of sub-letting by the landlord or the
issue of the notice by the sub-tenant, as the case may be, by
order. declare that the tenant's interest in so much of the
premises as has been sub-let shall cease and that the sub-
tenant shall become a tenant directly u'lder the landlord
-
E from the date of the order. The Controller shall also fix the
rents payable by the tenant and such sub-tenant to the
landlord from the date of the order. Rents so fixed shall be
deemed to be fair rent for purposes of this Act."

a~
It is plain from the above that the Act contemplates that while one
F sub-tenant may be evicted another may continue in the premises as
tenant directly under him, depending on the circumstances. We are,
therefore, of the view that previous consent in writing of the landlord
with respect to each sub-letting separately is essential ..\rid a general
authority to the tenant in this regard will not be sufficient in law. Our
view is supported by the observations in Mis Shalimar Tar Products
G Ltd. v. H. C. Sharma and Others, I 1988] 1 SCC 70; a case arising under
the Delhi Rent Control Act. An examination of Ss. 14(l)(b), 16, 17
and 18 of the Delhi Rent Control Act would show that the two Acts ~
(West Bengal Act and the Delhi Act) are similar so far the present
question is concerned. In the present case, since it is not suggested on
behalf of the respondent that consent of the appellants was obtained
H specifically for each of the sub-tenancies, the respondent-Corporation
~
SHANTI LAL RAM PU RIA'· VEGA TRADING CORPN. !SHARMA. J.J 639

must be held to have violated S. 14. The appellants have thus, A
established the ground mentioned in S. 13(1)(a) and are entitled to
succeed.

11. None of the sub-tenants has been impleaded in the present
~· suit, but as it is not the case of the tenant-Corporation that any of them
had sent any notice to the plaintiffs, the suit, so far the present El
respondent is concerned, can not fail on the ground of their non-
impleading. However, the sub-tenants can not be bound by' the finding
.... in this suit that they have failed to serve a notice as prescribed by the
~ plaintiffs seek their eviction. So far the sub-tenants who had been
·Act on the plaintiffs and will be entitled to be heard if and when the

~
inducted in the premises earlier and were parties to the 1960 suit may c
have still a better claim on the strength of the decree in their favour
and may insist that they would be entitled to continue iii possession as
tenants directly under the plaintiffs.

12. For the reasons mentioned above, the decision of the High
Court is set aside and the decree of eviction passed by the City Civil D
Court against the respondent-Corporation is restored. The appeal is
accordingly allowed with costs throughout.

P.S.S. Appeal allowed .

•

~
1