Gupta, J. - (1.) This appeal by special leave is directed against a judgment of the Calcutta High Court setting aside in revision the finding of the trial Court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment. The issue which arises on the interaction of two statutes, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question, - is the right conferred on the sub-tenant by the 1956 Act of being declared a tenant directly under the superior landlord available to a sub-tenant against whom a suit for ejectment was pending when that Act came into force The appeal turns on the answer to this question.
(2.) The material facts leading to the impugned order are these. The respondent was a tenant of premises No. 17/1E Gopal Nagar Road, Alipore, Calcutta, and his landlord was one Jagabandhu Saha, the owner of the house. Dilip Narayan Roy Chaudhury was a sub-tenant under the respondent in respect of the ground floor flat paying a monthly rent of Rs. 75/-. The respondent instituted a suit in the Munsif's court as Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Chaudhury on the ground that he was a defaulter in payment of rent. This act was a temporary statute due to expire on March 31, 1956, but on that date the West Bengal Premises Tenancy Act, 1956, was brought into operation repealing the temporary Act before it expired. The material part of Section 40 of the 1956 Act which repealed the 1950 Act is as follows: "Repeal and savings.- (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed. (2) Notwithstanding the repeal of the said Act:- (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) ********** as if the said Act had been in force and had not been repealed or had not expired;" Section 16 of the 1956 Act confers on the sub-tenant the right to become a tenant directly under the landlord. Sub-section (2) of Section 16 provides inter alia that where before the commencement of this Act, the tenant, with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant must give notice to the landlord of such subletting within the prescribed period. Sub-Section (3) of Section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub-tenant shall make an order declaring that the tenant's interest in so much of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Rent Controller is also required to fix the rent payable by the sub-tenant to the landlord from the date of the order Sub-tenant Roy Chaudhury served a notice under Section 16 (2) of the 1956 Act upon the superior landlord and applied under Section 16 (3) for being declared a tenant directly under him. On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Chaudhury was entitled to the declaration asked for overruling the objections raised by the respondent. On February 23, 1957 the Rent Controller concluded the proceeding under Section 16 (3) by finally declaring that the sub-tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him. The appeal preferred by the respondent from this order was dismissed by the appellate authority.
(3.) In the meantime, on August 21, 1956 the respondent had made an application under Section 14 (4) of the 1950 Act in the suit for eviction which was pending. Section 14 (4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that on failure to deposit the arrears of rent or the rent for any month within the period prescribed for such deposits, the court would make an order striking out the tenant's defence against ejectment so that the tenant would be in the same position as if he had not defended the claim to ejectment. On this application the Munsiff on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/-. After the declaration of tenancy under S. 16 (3), Roy Chaudhary was permitted to amend this written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself. It is unnecessary to refer to the various proceedings in the suit that followed in the course of which the High Court was moved more than once by either party. On January 24, 1956 Roy Chaudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives. On November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows: "Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31-7-56 and 23-2-57 passed by in R. C. (Rent Controller) Calcutta in Case No. 2433 of 1956" The Munsif took up for consideration the application under Section 14 (4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisdiction to pass the order under Section 16 (3) declaring the defendant to be a direct tenant under the superior landlord and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under Section 16 (3). The additional issue No. 9 was accordingly decided in favour of the defendant and the application under Section 14 (4) of the 1950 Act was dismissed. The plaintiff moved the High Court in revision against this order. The revision case was disposed of on February 16, 1968. The learned Judge maintained the order rejecting the application under Section 14 (4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant". The propriety of this order is challenged by the tenant defendants.;