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TMI Blog2003 (3) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the compromise decree has vacated the suit premises but the firm (respondent No.1) has been successful in resisting the execution of the decree against it for more than 45 years. Before pressing history of the litigation leading to the passing of the compromise decree and various attempts made by the firm to resist execution of the decree, the principal question involved in these appeals may be stated at outset. The main question involved is whether the respondent firm can claim status of sub-tenant and protection against eviction in execution of the compromise decree against the tenant under the provision of the West Bengal Premises Rent Control (temporary provisions) Act 1950 (hereinafter shortly referred to as the Act of 1950). Short of unnecessary details of counter litigation between the parties, facts relevant for decision of the legal question before us are as under: The suit premises presently in use for running Waldorf Restaurant originally belong to Chitpur Golabari Company Limited (respondent No.2 herein). Between the period 1.1.1939 to 31.12.1951 Allenberry Company (respondent No.3 herein) was the contractual tenant of the original landlord.) On 12.8.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant provisions of Sections 12 13 of the Act of 1950. Section 12 to be quoted with first proviso( without a to I expn. Exp.SSII..) Section 13 to be quoted fully 1 2 with all explanations Happy Homes Pvt. Ltd. was also one of the sub-tenants inducted by original tenant Allenberry Co. after service of notice by it to surrender the tenant. The sub-tenant sought protection against eviction in execution of the compromise decree against the tenant on the ground that it has become direct tenant under the landlord in accordance with Section 13 of the Act of 1950. The above plea and contention of sub-tenant HHPL was negatived by this Court by holding thus: Pages 31-32 to be quoted red marked Coming back to the facts of this case against the respondent firm after obtaining a decree of compromise against the tenant the landlord instituted suit for eviction on 9.6.1956. The firm contested the suit by taking a plea that before surrender of tenancy by the tenant with effect from 31.8.1953 under statutory notice, the tenant had inducted on 1.7.1953 sole proprietor En Chick Wong for running Waldorf Restaurant. Later on, the above-named sole proprietor formed a partnership with two o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appllcation was dismissed by the Court on 4.8.1999. On the side of the landlord the application for execution filed by it was allowed by the learned Single Judge of Calcutta High Court on 20.4.2000. Learned Single judge of the High Court came to the conclusion that the firm came into existence of its registration under Partnership Act only on 1.3.1954 i.e. after the surrender of tenancy by the original tenant on 31.8.1953. in the opinion of the High Court, the registered partnership firm could not be validly inducted as a sub-tenant and as alleged on 1.7.1953 the Restaurant was a proprietary concern of Eng Chick Wong. The learned Single Judge therefore came to the conclusion that the firm cannot claim status of a protected sub-tenant directly under the landlord with provisions of Section 13(2) of the Act of 1950. For better appreciation of the ratio of the decision of the learned Single Judge the relevant part of the judgment deserves to be reproduced: In those circumstances I would find, that there was no proof whatsoever, before this Court, that Waldorf the present partnership firm had been inducted as a sub-tenant on 1.7.1953. It would also appear to me, and not contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long course fo litigation the Division bench came to the conclusion that 'by operation of law' Eng Chick Wong either as proprietorship concern or as a partner of partnership firm became a tenant directly under Chitpur Golabari. It was further held that the landlord would be entitled to bring a suit for eviction against such protected tenant on the ground that the sub-tenancy has been created 'but for the purpose of application under Section 47 of the Code of Civil procedure would not be maintainable.' With an attempt to understand the reasoning and conclusion of the Division bench it is necessary to reproduce the relevant part of its judgement: Assuming for the sake of argument that by reason of reconstitution of such firms, the original tenant went out of the said partnership firm and, thus, the possession of the present firm comprising of Charles Mantosh, HIS Wen Wong and Mata Prasad Pandey became illegal, but the same would be of no consequence inasmuch as, such action on the part of the original sub-tenant namely, the proprietorship concern of Waldorf Restaurant and/or partnership firm would at best result in creation of sub-tenancy. But there cannot be any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh those pleadings it is pointed out that throughout in the long course of litigation in the counter civil suits and the execution proceedings at many places, averments have been made stating that the 'Waldorf Restaurant' was inducted as a tenant on 1.7.1953. On behalf of respondents, learned counsel argues that the above averments in the pleadings of the appellant in the courts below amount to admission that Waldorf Restaurant may be initially as a proprietor concern and later on as partnership firm, came into possession of the suit premises as a sub-lessee on 1.7.1953 prior to the surrender of tenancy by the tenant on 31.8.1953. The conclusion of the Division bench is thus supported on the ground that the firm presently in occupation has become a direct tenant under the landlord after surrender of tenancy by the original tenant and as a protection against eviction under the Act of 1950. It is also contended that the compromise decree obtained against the tenant who surrender the tenancy and vacated the premises is not executable against the firm as sub-tenant which has become direct tenant under Act of 1950. It is submitted that the remedy of the landlord is to ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy. In the case of creation of sub-tenancy by the tenant of the first degree, the sub-tenant, even on termination of tenancy of the tenant of the first degree, becomes direct tenant under the landlord and is thus protected, meaning thereby that he can be evicted only on proof of any of the grounds under the provisions of Section 12 of Act of 1950. For better appreciation of this case in the case of Indra Kumar Karnani, (supra) we would better reproduce the relevant part of the judgment: Page 332 of the book red marked In the present case, the firm with totally new partners excluding the erstwhile sole proprietor is claiming status of a subtenant and on termination of tenancy of the direct tenant under the Act of 1950 it is on the above ground that the execution of compromise decree is being resisted. Waldorf Restaurant is merely a trade name. It is not a legal person and has no independent existence of the proprietary who initially carried on business in that trade name in the suit premises as sub-tenant and later on by becoming partner of the firm in that name. The present firm comprising totally new partners has not disputed the fact that on 1.7.1953 the tenant (All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The firm formally by its reply refused to supply copies of partnership agreement and relevant information. It took a plea that it was their internal affair and plaintiff can have no concern with it. Where the tenanted premises were sub-let to the sole proprietary of a business concern should later on with other two individually constituted partnership firm, the tenanted premises held by him in sole proprietorship would become a partnership property or not would depend upon the terms of the partnership agreement. The burden to prove that the suit premises which were sub-let to the proprietor on his forming a partnership firm became property of the firm was squarely on the firm which is contesting the execution proceedings. The firm has deliberately withheld from disclosure the agreement of partnership entered into from time to time showing the nature of partnership. During the time when the proprietor was the partner and after it when he ceased to be its partner, there is no evidence to prove that the tenanted premises on which the sole proprietor Eng Chick Wong was the sub-tenant in the year 1953 became the asset or proprietary of the firm. The claim of the firm could have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words tenant of the second degree. In the aforesaid situation if at all, any claim for status of direct tenant and protection under Act of 1950 could have been claimed, it would have been only by Eng Chick Wong as the sole proprietor of the business concern. In any case, after Eng Chick Wong has walked out of the tenanted premises and left India, the present partners of the firm with whom possession of the business premises was left have no right to resist their dispossession under the decree obtained against the tenant . Along with the tenant, the sub-tenant, if he is no longer in possession the other occupants in possession through them have also to vacate and can have no semblance in the right, interest or title to resist execution of the decree. Learned counsel appearing for the firm argued that Waldoft Restaurant has been admitted in the pleadings of the appellant in the courts below to be in occupation of the leased premises before the surrender of original lease by the original tenant Allenberry Co. We have already negatived that argument on the ground that Waldoft Restaurant as such is not a legal person. The proprietor who initially was running the Restaurant lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an admission of the fact that the firm came into possession of the premises prior to the surrender of the lease by the tenant. There can also be no admission on a question of law which can be held to be binding on the appellant. One additional ground urged is that the compromise decree in its terms is not executable because the tenant who entered into compromise on the date of signing of the compromise deed had vacated the premises. On a closer scrutiny of the terms of compromise which resulted in passing of the compromise decree, we do not find any merit in the submission that the decree is not executable against the sub-tenant. We have traced the history of the litigation. The tenant surrendered the lease with effect from 31.8.1953 by a notice but failed to vacate it on the due date. Landlord was therefore required to file a suit against the tenant on the basis of the notice on surrender of tenancy. During pendency of the suit the tenant entered into a compromise and in terms thereof vacated the leased premises. As against the sub-tenants, which he had inducted during subsistence of tenancy, it granted landlord liberty to take necessary legal steps for their eviction. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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