Shah, J. - (1.) A building in the town, of Calcutta belonging to the Chitpore Golabari Company (private) Ltd., was lot out under a written lease for a period of twelve years commencing from January 1, 1939, to Messrs Allen Berry and Co. Ltd.- hereinafter called "Allen Berry". Under the terms of the lease sub-letting or parting with the possession of the demised premises or any part thereof by the tenants without the previous consent in writing of the landlord was expressly prohibited. After the expiry of the period Allen Berry continued to hold over the premises. On August 12, 1958 Allen Berry served a notice in writing upon the landlord intimating their intention to vacate the premises "on August 31, 1953, at 3-30 P. M." and requested the landlord to arrange to take delivery of possession. By letter dated August 26, 1953, Allen Berry informed the landlord that they did not intend to vacate the premises on August 31, 1953, as originally intimated or at all, and that the notice dated August 12, 1953, be treated as cancelled. By letter dated August 28, 1953, attorney of the landlord informed Allen Berry that the earlier notice dated August 12, 1953, could not be withdrawn except by mutual consent, and since the landlord had agreed to lease the premises to M/s. Dunlop Rubber Co. (India) Ltd. with effect from September 1, 1953, the landlord was unable to give his consent to such withdrawal, and that it would insist upon Allen Berry vacating the premises as already intimated. Allen Berry addressed a letter to the landlord on September 14, 1953, intimating that they were holding over the premises on the expiry of the leave "according to the provisions of the Rent Control Act". On February 20, 1954, the landlord called upon Allen Berry to vacate and deliver possession of "the premises on the expiry of March 31, 1954". Allen Berry failed to carry out the requisition, and on May, 7, 1954, they sub-let a part of the ground floor measuring approximately 2100 sq. ft. to Happy Homes (P) Ltd. - respondent in this appeal.
(2.) The landlord then instituted a suit against Allen Berry claiming a decree in ejectment in respect of the demised premises and for mesne profits and other reliefs. This suit was settled on March 28, 1955, and a consent decree was passed. The important recitals in the decree were that (1) Allen Berry had surrendered the tenancy by notice dated August 12, 1953; (2) that they had handed over possession of the portion of the premises in their occupation to the landlord; (3) that the landlord will be at liberty either to retain the sub-tenant or to eject him; and (4) that the sub-tenancy had been created without the knowledge and consent of the landlord.
(3.) The landlord then sued M/s. Happy Homes (P) Ltd.- hereinafter called 'the respondent - in the High Court of Calcutta for a decree for possession of the premises in its occupation and for mesne profits. The suit was resisted by the respondent principally on two grounds:(i) that the tenancy of Allen Berry was not determined before the sub-letting in their favour and (ii) that even if it be held that the tenancy of Allen Berry was determined before May 7, 1954, by virtue of the provisions of the West Bengal Rent Control (Temporary Provisions) Act, 1950, the respondent became a direct tenant of the landlord and was entitled to the benefits of that Act.;