- (1.) THE petitioner before me raised an action in ejectment, being Suit No. 1052 of 1966, in the City Civil Court, calcutta, against his tenant M. Imamuddin alias Md. Imamuddin, and obtained a decree on September 30, 1966. When he put the decree,to execution for recovery of possession of the subject-matter of the tenancy and the decree, : namely a shop-room on the ground-floor of 15 A Panchu Khansama Lane, he was resisted, as it now appears, at the instance of one Subodh Chandra mitra, Opposite Party No. 3 before me, in assertion of his right in the tenancy by virtue of a transfer from imamuddin on the basis of a registered sale-deed dated May 26, 1964. The petitioner qua decree-hoder complained of such resistance under Or. 21, rule 97, of the Code of Civil Procedure, and applied to the court for delivery of possession with the aid of the police. An application as this was rejected on the ground that Subodh Ch. Mitra, because of the transfer, notice of which was given to the petitioner qua landlord, was a bona fide claimant iniassertion of his right to be in possession, and could not, therefore, be put out of passession. Hence this rule by the decree-holder under section. 115 ibid.
(2.) THE tenancy is governed by the Premises Tenancy Act 12 of 195k, sub-section 1 of the 14th section of which bears, in so far as it is material here : "14 (1 ). After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord, - (b) transfer his rights the tenancy in No consent in writing of the landlord previous to the transfer of May 26, 1964, is here. What is here instead is a hopelessly unsuccessful attempt to prove consent subsequent to the transfer in the shape of acceptance of rents without any receipt. That does not save either the judgment-debtor imamuddin or Subodh Chandra Mitra, who claims through Imamuddin, from a clear infraction of section 14, subsection 1, clause (b ). But what is the effect of such infraction ? One effect undoubtedly is that a transfer as this does not bind the landlord who is within his rights to sue Imamuddin in ejectment, as he has done. But that by itself does not solve the problem in the context of rules 98 and 99 of or. 21. Take rule 99 first. Can it; be said that resistance was occasioned, by one (other than the judgment-debtor)claiming in good faith to have a right to be in possession of the shop-room in controversy on his own account: just the language of rule 99, as amended by this Court by virtue of its rule-making power ? Jumping the law: section 14, sub-section 1, clause (b), and taking refuge under sham payments of rent, as Mitra does, does not evidence good faith. It evidences instead bad faith. And the sale-deed, in defiance of law, not binding on the landlord too, keeps Imamuddin in the same status in which he was before the sale : the status of a tenant. An infirm sale-deed as that does not wipe out imamuddin. So, Mitra s claim must necessarily be through Imamuddin and on Imamuddin's account, not on his own account. Rule 99 is not, therefore, for such a one. Now, come to rule 98. Was the resistance occasioned without any just cause by one, on behalf of the judgment-debtor Imamuddin: just the language of the rule, as amended by this Court by virtue of its rule-making powers ? The sale-deed and the patently untrue version of payment of rent failing-and fail they must-the justness of the cause is not simply there. More, Imamuddin remains a tenant, the sale-deed notwithstanding. Imamuddin is the judgment-debtor. Therefore, what else can Mitra's resistance be save resistance on behalf of the judgment-debtor ? Rule 98 applies and gives the decree-holder what he prays the court for.
(3.) THUS, what is seen here is not merely a wrong decision, which the court below has the jurisdiction to come to, depriving me of my jurisdiction to interfere. What is seen is a little more : the court having acted in the exercise of its jurisdiction, overlooking the provisions of section 14, sub-section 1, clause (b), and, consequently, with illegality, in sum, a jurisdictional error, which gives me jurisdiction to interfere.;