It is, however, contended that a sub-tenant is included in the definition of "tenant" in Section 4 of the Bombay Rent Restriction Act, 1939. It is quite true that under that section the expression "landlord" includes a tenant who sub-lets any premises and every person who derives his title under a landlord, and that the expression "tenant" includes every person who from time to time derives title under a tenant. That definition means that the relation between a tenant and a sub-tenant is the same as between the superior landlord and the tenant. It does not, in my opinion, establish any privity between the superior landlord and the sub-tenant. The fact that a subtenancy has been created by the tenant may be considered for the purpose of fixing the standard rent under Section 19 of the Bombay Rent Restriction Act, but it does not follow therefrom that if the superior landlord wishes to evict his tenant, the subtenant must be joined as a party to the suit. If he is in possession, he comes in at the stage of execution of the decree. The observations of Sir John Beaumont C.J. in Punamchand Velraj v. Bombay Cloth Market Co., Limited (1942) 45 Bom. L.R. 240, do not amount to a decision that in all cases under the Rent Restriction Act a sub-tenant is a necessary party to a suit by the superior landlord for eviction against his tenant. In that ease the landlord had also served a notice to quit on the sub-tenant who was made a party to the suit and the observations related to the point as to whether the sub-tenant was not included in the definition as he did not pay rent to the superior landlord. The opinion expressed was that the sub-tenant was entitled to the protection of the Act as he was included in the definition. But the point was regarded as immaterial as the tenant himself had a good answer to the suit for possession, On the other hand, it is expressly decided by a Division Bench in Suryanarayman v. Narsimha (1925) 27 Bom. L.R. 240, under the Rent Restriction Act of 1918 which contained the same definition, that where the landlord seeks to evict his own tenant, he cannot be opposed by the person who has been put in possession without his consent by his tenant. That decision is, in my opinion, correct. In the present case, the petitioner was not put in possession with the superior landlord's consent and he is not, therefore, a necessary party to the suit. I agree that the rule should be discharged.
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Bombay High Court
Mangaldas Girdhardas vs Govindlal Ishwarlal on 16 March, 1944
Equivalent citations: (1945) 47 BOMLR 118
1. This is an application by a sub-tenant to be joined as a party in a suit between the superior landlord and his own landlord. The application is based upon the definition clause in the Bombay Rent Restriction Act, 1939, where the expression "tenant" is extended to an under-tenant. In my judgment this is a complete fallacy and has nothing to do with the matter at all. There is no statutory right or any other right which gives an under-tenant a title or right to intervene in proceedings between a superior landlord and his own landlord in order to seek relief against an order of forfeiture. That being so, there is no way in which he can intervene except by an application showing that something will be done in the proceedings which will prejudice his legal rights. But when the form of the warrant of execution which may be obtained by the superior landlord in this case is examined, it will be found that that argument is groundless, since the warrant is limited to the eviction of any person bound by this decree. If the applicant has any legal right to remain in occupation of the premises by virtue of the Rent Restriction Act, on which I pronounce no opinion, the time to raise that matter will be in the execution proceedings.
The application is accordingly dismissed with costs.
Kania J.
2. I agree. There can be only two grounds on which a party can claim to come on record of a suit instituted and pending between other parties. The first is when he satisfies the Court that he is a necessary party and in his absence the rights between the original parties cannot be properly decided. When there is a landlord and a tenant and the premises are sub-let, there is neither privity of contract nor estate between the landlord and the sub-tenant. The terms on which the premises may be let by the tenant to the sub-tenant may be different, the area let may be different, and, as has been pointed out in the present case, the law governing the relations of the parties may also be different. It will therefore be quite improper to say that as a general rule the sub-tenant has a right to come in a suit between the landlord and the tenant to determine their rights inter Se. The second ground is when he satisfies the Court that he is a proper party within the meaning of Order I, Rule 10. Normally a person can be called a proper party, if in his absence a decision may be pronounced by the Court and it might adversely affect him. It must be realised that the Court pronounces judgment between the parties who are impleaded, and the judgment does not affect other parties. If any decision is given which affects a third party, the same is clearly not binding on him unless the third party derives his title under one of the parties. That is an elementary principle of law which cannot be disputed. In the present case nothing is pointed out to support the contention that a decision between the parties to this suit will necessarily prejudice the applicant, without the applicant having any remedy at all. If the applicant has a right to remain in the premises, as against the superior landlord, either by virtue of a contract or a statutory right, he will have an opportunity to urge it before a judicial tribunal, when he is attempted to be evicted, after a decree is passed in favour of the superior landlord. Unless it can be established that his rights were likely to be prejudiced, I do not see how he can be called a proper party.
3. This matter originally came before Macklin J. and he referred the matter to a division bench or a full bench in view of the observations of Beaumont C.J. in Punamchand Velraj v. Bombay Cloth Market Co., Limited (1942) 45 L.R. 240. With all respect, in any opinion, those observations were obiter and are not supported by the law of the land. I must point out that the learned Chief Justice has omitted to take notice of Suryanarayanan v. Narsimha (1925) 27 Bom. L.R.938. He has considered a judgment of Pratt J. in Suganchmd v. Motilal (1921) 24 Bom. L.R. 154. The former decision was of a division bench of this Court and was binding on a single Judge. I should also point out that by the definition inserted in the Rent Restriction Act of 1939, the attempt of the legislature is to give; a relief as between the tenant and his sub-tenant in the same way as relief can be granted as between the superior landlord and his tenant. That appears to be the only object for including in the definition of "tenant", a sub-tenant for the purposes of that Act. I fail to appreciate the discussion in respect of Section 15 of the Bombay Rent Restriction Act, 1939, which deals with the fixing of standard rent. In Section 15 the different contingencies under which standard rent of particular small premises which the Court is called upon to fix and which had not been previously let as one parcel, are dealt with. I do not think that helps in the decision of the question whether the sub-tenant is a necessary or proper party in a suit for ejectment by the landlord against the original tenant. In my opinion the reasoning of Pratt J. adopted in the later case is correct, and I agree with that decision.
Divatia J.
4. I agree. There is no doubt that under the ordinary law of landlord and tenant the petitioner, who is a sub-tenant, is not a necessary party to this suit by the superior landlord for the eviction of his tenant. There is no privity between the petitioner and the superior landlord. A necessary party is one without whose presence no decree could be passed. That, however, is not the case here. The subtenant has admittedly not taken any assignment of the lease in favour of the tenant. It is, therefore, clear that the superior landlord is entitled to eject his tenant, and the sub-tenant deriving his title under the tenant is also liable to be ejected in execution of the decree.
5. It is, however, contended that a sub-tenant is included in the definition of "tenant" in Section 4 of the Bombay Rent Restriction Act, 1939. It is quite true that under that section the expression "landlord" includes a tenant who sub-lets any premises and every person who derives his title under a landlord, and that the expression "tenant" includes every person who from time to time derives title under a tenant. That definition means that the relation between a tenant and a sub-tenant is the same as between the superior landlord and the tenant. It does not, in my opinion, establish any privity between the superior landlord and the sub-tenant. The fact that a subtenancy has been created by the tenant may be considered for the purpose of fixing the standard rent under Section 19 of the Bombay Rent Restriction Act, but it does not follow therefrom that if the superior landlord wishes to evict his tenant, the subtenant must be joined as a party to the suit. If he is in possession, he comes in at the stage of execution of the decree. The observations of Sir John Beaumont C.J. in Punamchand Velraj v. Bombay Cloth Market Co., Limited (1942) 45 Bom. L.R. 240, do not amount to a decision that in all cases under the Rent Restriction Act a sub-tenant is a necessary party to a suit by the superior landlord for eviction against his tenant. In that ease the landlord had also served a notice to quit on the sub-tenant who was made a party to the suit and the observations related to the point as to whether the sub-tenant was not included in the definition as he did not pay rent to the superior landlord. The opinion expressed was that the sub-tenant was entitled to the protection of the Act as he was included in the definition. But the point was regarded as immaterial as the tenant himself had a good answer to the suit for possession, On the other hand, it is expressly decided by a Division Bench in Suryanarayman v. Narsimha (1925) 27 Bom. L.R. 240, under the Rent Restriction Act of 1918 which contained the same definition, that where the landlord seeks to evict his own tenant, he cannot be opposed by the person who has been put in possession without his consent by his tenant. That decision is, in my opinion, correct. In the present case, the petitioner was not put in possession with the superior landlord's consent and he is not, therefore, a necessary party to the suit. I agree that the rule should be discharged.
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