Holding

The executing court may adjudicate resistance by any person under Order 21 Rule 97, and a sub‑tenant not protected by Sections 13(2) or 13(4) of the West Bengal Premises Tenancy Act is bound by the decree of ejectment.

Summary

Silverline Forum Private Limited, the new owner of a flat, obtained a decree for ejectment against its tenant Rajiv Trust for sub‑letting without consent. While executing the decree, the bailiff was resisted by the second respondent, a sub‑tenant of the first sub‑tenant, who claimed he was not a party to the decree. The execution court held that a third‑party resistor could not invoke Order 21 Rule 101 of the CPC, but ordered an inquiry under Section 151 CPC; the High Court affirmed this. The Supreme Court held that Order 21 Rule 97 allows the decree‑holder to seek adjudication of any resistance, even by a third person, and that the executing court may determine questions that arise between the parties and are relevant to the complaint. It further held that the second respondent, not falling within the exceptions of Sections 13(2) or 13(4) of the West Bengal Premises Tenancy Act, is bound by the decree of ejectment. Consequently, the appeal was allowed and the order staying dispossession was set aside, permitting the appellant to take possession.

Issues considered

Whether resistance or obstruction to the execution of a decree by a third party can be considered under Order 21 Rule 97 of the CPC.
Whether the executing court may adjudicate such resistance and what questions it may determine under Rule 101.
Whether a sub‑tenant who is not a party to the decree is bound by the decree of ejectment under the West Bengal Premises Tenancy Act, 1956.
Whether the sub‑tenant is entitled to protection under Section 13(2) and Section 16 of the West Bengal Premises Tenancy Act.
Whether the landlord's consent to sub‑letting can be used by a sub‑tenant to bind the landlord.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 101, s. Order 21 Rule 102, s. Order 21 Rule 35(1), s. Order 21 Rule 97, s. Order 21 Rule 99, s. Section 151, s. Section 51, s. Section 52
Transfer of Property Act, 1882s. Section 52
West Bengal Premises Tenancy Act, 1956s. Section 13(2), s. Section 13(3), s. Section 13(4), s. Section 16(1)

Subjects

execution of decreethird‑party obstructionOrder 21 CPCsub‑tenancyWest Bengal Premises Tenancy Actdecree binding on sub‑tenantSection 151 CPCcivil procedurepossessionejectment

Judgment

.......

SILVERLINE FORUM PVT. LTD. A
v.
RAJIV TRUST AND ANR.

MARCH 31, 1998

[M.M. PUNCCHI, CJI., K.T. THOMAS AND B
S. RAJENDRA BABU, JJ.]

Code of Civil Procedure, 1908-0rder: 21 Rules 97,99,101, 102-
0bstruction by third party to execution of decree- Adjudication of-
Obstruction by "any person"- Interpretation of- Held, rules under Order C
21 are intended to deal with every sort of resistance or obstructions offered
by any person- Excuting Court to determine questions legally arising
between the parties which are relevant for consideration and determination
between the parties-Adjudication not necessarily to involve a detailed
enquiry or collection of evidence-View of the High Court that resistance or D
obstructions made by a third party to the decree of execution cannot be gone
into under Order 21 Rule 97, rejected

Rent and Eviction :

West Bengal Premises Tenancy Act, 1956-Sections 13(2); 13(3); E
16(/)-Sub tenancies-Creation of-Necessary Ingredients-Written
permission by landlord to tenant to create sub-tenancy and notification of
creation of such sub-tenancy by the tenant and sub-tenant within one month
of such creation-Consent given by the landlord to his tenant for creation
of sub-tenancy, held, valid only as between the landlord and his tenant- F
Such consent could not be used by a sub-tenancy to create another sub-
tenancy under him so as to bind the landlord-Second respondent being a
sub-tenant under the first sub-tenant-No notice of subletting to the landlord
under Section 16(/)-Held, Advantage under Section 13(2) not available-
Second respondent bound under Section 13(3) by the decree for ejectment- G
I Appellant/landlord entitled to delivery of possession by removing the
• obstruction/resistance made by the second respondent/sub-tenant.

The original owner of the property in question tenanted the premises
to the first respondent who sublet the same to the first sub-tenant who
subsequently created another sub-tenancy under it in favour of the second H
587
~
I
588 SUPREME COURT REPORTS [1998] 2 S.C.R.

A respondent The appellant with whom the ownership of the property in question
vested subsequently, filed a suit for ejectment against the first respondent/
tenant under the provisions of West Bengal Premises Tenancy Act, 1956 on
the ground that the tenant had sublet th<> building without the consent of the
landlord. A decree for ejectment was passed. Thereafter, the second
respondent filed a suit for declaration and injunction against his ejectment.
B In the meanwhile the appellant moved for execution of the decree of ejectment.
When the bailiff of the court went to the premises for effecting delivery of
possession, he was resisted by the representatives of the second respondent.
The execution court stayed dispossession in the meantime. The Second
respondent filed an objection before the execution court raising a contention
C that the decree was passed without making him a party. The execution court
held that the second respondent being a third party resistor cannot avail
himself of the remedy provided in Order 21 Rule I 01 of the Code. Nevertheless,
the execution court ordered an enquiry to be conducted under Section 151
C.P.C. into the allegations made by the second respondent. The said order
was challenged by both the appellant and the second respondent in revision
D before the High Court. The High Court upheld the order of the execution
court and dismissed both the revision petitions. Hence, the present appeal.

On behalf of the appellant it was contended that the second respondent
who was a sub-tenant had no competence to question the decree for ejectment
E and was bound by the decree of ejectment albeit not being made a party to
the suit in which the decree was passed.

On behalf of the second respondent it was contended that the instrument
of lease as between the previous owner and the first respondent contained
a term permitting the tenant to create sub-tenancy and thus he was entitled
F to the advantages of the provisions contained in section 13(2) of the West
Bengal Premises Tenancy Act, 1956.

Allowing the appeal, this Court

HELD : 1.1. High Court was not right in holding that resistance or
G obstructions made by a third party to the decree of executiion cannot be gone
into under Order 21 Rule 97 of the Code of Civil Procedure, 1908. Rules
97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance
to delivery of possession to decree-holder or purchaser". Those rules are
intended to deal with every sort of resistance or obstructions offered by any
person. Rule 97 specifically provides that when the holder of a decree for
H possession of immovable property is resisted or obstructed by "any person"
SILVERLINE FORUM PVT. LTD. v. RAJIV TRUST 589
in obtaining possession of the property such decree-holder has to make an A
application complaining of the resistance or obstruction. Sub-rule (2) makes
it incumbent on the court to proceed to adjudicate upon such complaint in
accordance with the procedure laid down. But while making adjudication, the
court is obliged to determine only such que~1ion as may be arising between
the parties to a proceeding on such complaint and that such questions must
be relevant to the ad.iudication of the complaint. [593-B-C-G] B
.( 1.2. It is true that Rule 99 of Order 21 is not available to any person
until he is dispossessed of immovable property by the decree-holder. Rule
101 ~1ipulates that all questions "arising between the parties to a proceeding
on an aplication under rule 97 or rule 99" shall be determined by the
executing court, if such questions are "relevant to the adjudication of the C
application". A third party to the decree who offers resistance would thus
fall within the ambit of Rule 101 if an adjudication is warranted as a
consequence of the resistance or obstruction made by him to the execution
of the decree. The words "all questions arising between the parties to a
proceeding on an application under Rule 97" would envelop only such D
questions as would legally arise for determination between those parties.
The court is not obliged to determine a question merely because the resistor
raised it. The questions which executing court is obliged to determine under
Rule 101, must possess two adjuncts. First is that such questions should
have legally arisen between the parties, and the second is, such questions
mu~1 be relevant for consideration and determination between the parties. E
[593-D-E-H; 594-A-B]
1.3. Executing court can decide whether the resistor or obstructor is
a person bound by the decree and he refuses to vacate the property. That
question also squarely falls within the ad.judicatory process contemplated in
Order 21 Rule 97(2) of the Code. The adjudication mentioned therefn need F
not necessarily involve a detailed enquiry or collection of evidence. Court can
make the adjudication on admitted facts or even on the averments made by
the resistor. Of course the court can direct the parties to adduce evidence
for such determination if the court deems it necessary. [594-F-G]
Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswa/ and another, (1997) G
3 sec 694, relied upon.
,,+.. Bhanwar Lal v. Satyanarain and am:, [1995) 1 SCC 6, referred to.
2.1. Consent given by the landlord to his tenant for creation of the sub-
tenancy is valid only as between the landlord and bis tenant. Such consent
cannot be used by a sub-tenant to create another sub-tenancy under him so H
~
I

!
590 SUPREME COURT REPORTS [1998] 2 S.C.R

A as to bind the landlord. The second respondent is bound by the decree of
ejectment being a sub-tenant under the first sub-tenant without notice of
such sub-tenancy to the landlord. (598-E)
2.2. A reading of sub-section (1) of Section 16 of the West Bengal
Premises Tenancy Act, 1956 reveals that three additional requisites are
also necessary for a sub-tenant to get wiggled into the contours of the sub-
B
section. They are: (1) the sub-tenancy should hvae been created after the
commencement of the Act; (2) the landlord of the premises should have given
written permission to the tenant to create such sub-tenancy; and (3) the
tenant and the sub-tenant should have notified the landlord of the creation
of the sub-tenancy within one month of such creation. The sub-tenants who
C secure perch in Section 16 are afforded with two advantages as provided in
Section 13(2). Firstly, such sub-tenant is entitled to be made a party to the
suit for recovery of the premises by the landlord and secondly no decree or
order for ejectment shall be passed against such sub-tenant exce11t under
certain specified conditions. Thus, sub-section (2) of Section 13 and Section
D 16 are inextricably inter-twined with each other. It is the statutory mandate
that the decree for e.iectment shall be binding on every sub-tenant unless he
falls within the ambit of either sub-section (2) or sub-section (4) of Section
13. There is no case for the second respondent that he has given any notice
to the landlord before the expiry of the time schedule fixed in Section 16 of
the Act. Nor has he a case that he would fall within the purview of the
E aforesaid two sub-sections in Section 13 of the W.B. Act.
(596-F-H; 597-A-D)
3. It is clear from Section 16(1) of the West Bengal Premises Tenancy
Act, 1956 that the previous consent of the landlord contemplated therein can
only be availed of by his tenant. In other words, the tenant under the landlord
F can use that consent to sublet the premises to another person. A lease
between the tenant and his sub-tenant would be governed by the terms agreed
upon between them and the tenant cannot bind his landlord by any such
terms. [597-F-G)

G Shanti/al Rampuria and ors. v. Mis Vega Trading Corporation and
ors., (1989) 3 sec 552, relied upon.

Mis Shalimar Tar Products Ltd. v. H.C. Sharma and ors., [1998) 1 SCC
70; Juthika Mu/ick and anr. v. Dr. Mahendra Yashwant Bal and ors., [1995) ·
10 SCC 560 and Mahabir Prasad Verma v. Dr. Surinder Kaur; [1982) 2 SCC
H 258, referred to.
SIL VERLINE FORUM PVT. LTD. v. RAJIV TRUST [THOMAS, J.] 591

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1835 of A
1998.

From the Judgment and Order dated 24.4.97 of the Calcutta High Court
in C.R.A. No. 1649 of 1996.

Kapil Sibal, and Arnn Jaitley, Utapal Majumdar and Ms. Sarla Chandra B
for the Appellant.

S.S. Ray, Rana Mukherjee, Ms. Sumita Mukherjee, Goodwill Indeevar,
and Ranjan Mukherjee for the Respondents.

The Judgment of the Court was delivered by c
THOMAS, J. Special leave granted .

A sub-tenant, who was not party to a decree for eviction, resisted
execution of the decree and the court ordered an inquiry under Section 151
of the Code of Civil Procedure ('Code' for short). The High Court of Calcutta D
upheld that order and that is challenged in this appeal.

The suit property is a flat in "Harrington Mansion" situated on an
important road at Calcutta. It was in the ownership of one Arun Kumar Jalan.
He tenanted the premises to Rajiv Trust (first respondent) on 15-05-1975, who
sublet the building to a company Mis. Accounting and Secretarial Service E
Private Limited (which will hereinafter be referred to as "the first sub-tenant").
Subsequently the first sub-tenant created another sub-tenancy under it in
favour of second respondent Mis. Capstain Shipping Estate Private Limited.

Ownership of the building changed from Arun Kumar Jalan and it now
vests with the Silverline Forum Private Limited, (the appellant herein) as per F
registered conveyance deed dated 24-1-1995. Appellant filed a suit for ejectment
of the tenant against first respondent under the provisions of West Bengal
Premises Tenancy Act, 1956, (hereinafter referred to as the "W.B. Act") on
two grounds. First is that the tenant respondent had sublet the building
without the consent of the landlord and second is that the tenant used it in G
such a manner as to impair its condition. A decree for ejectment was passed
ex-parte on 12-12-1995. Before appellant set out with execution proceedings
second respondent- sub-tenant filed a suit (O.S. No. 2997195) against appellant
and some others for a declaration and consequential injuncting orders. Though
initially second respondent got an interim order injunction against ejectment
it was subsequently vacated on 15-12-1995, but that suit is still pending. H
592 SUPREME COURT REPORTS [1998] 2 S.C.R.

A In the meanwhile appellant moved for execution of the decree of
ejectment. On 20-3-1996, bailiff of the court went to the premises for effecting
delivery of possession, but he was resisted by the representatives of the
second respondent and he reported the matter to the court. When he was
again directed by the Court to effect delivery of possession with police help,
he was unable to dispossess second respondent a~ the execution court has
B stayed dispossession in the meantime. Second respondent filed Miscellaneous
Case 556 of 1996 before the execution court quoting order 21 Rule I 0 I and
Section 151 of the Code, raising a contention that the decree was passed
without making him a party and alleging that the decree was obtained in
collusion between appellant and first respondent Rajiv Trust. Execution court,
C however, held that second respondent being a third party resistor cannot
avail himself of the remedy provided in Order 21 Rule I 0 I of the Code.
Nevertheless the remedy provided in ordered an inquiry to be conducted
under Section 151 of the Code into the allegations made by the second
respondent, as per its order dated 26-4-1976. Both sides, appellant and second
respondent, were aggrieved by that order and hence both of them challenged
D it in revision before the High Comt. {·

A learned Single Judge of the Calcutta High Court concurred with the
view of the execution court that grievances of the second respondent cannot
be canalised through Order 21 Rule I 01 presumably because the decree-
E holder has not moved the application for police help to remove the resistance
under order 21 Rule 97 of the Code. Nonetheless, learned Single Judge
observed that the application of second respondent could be gone into by
the court in accordance with the inherent powers of the court as recognised
in Section 51 of the Code. On the said view of the matter both revisions were
dismissed by the order which is under challenge now.
F
Shri Siddhartha Shankar Ray, learned senior counsel who argued for
the contesting parties did not choose to defend the view of the learned Single
Judge of the High Court regarding non-availability of the remedy under Order
21 Rule 97 of the Code. According to the learned counsel, though he could
not agree with that reasoning of the High Court there is no warrant for the
G stand of the decree-holder that the respondent had no legal right to assail the
decree in execution proceedings.

Shri Kapil Sibal, learned senior counsel for the appellant - decree-holder,
o~ the other hand contended that since second respondent has admiued that
H he· is a sub-tenant under the first sub-tenant he cannot even be heard that
SJLVERLINE FORUM PVT. LTD. v. RAJIV TRUST [THOMAS, J.] 593
the decree for ejectment is a nullity or a collusive decree. He pointed out that A
' even the first sub-tenant has never assailed that decree and hence second
respondent, who is a sub-tenant under the first sub-tenant, has no competence
to question the decree for ejectment.

At the outset, we may observe that it is difficult to agree with the High
Court that resistance or obstructions made by a third party to the decree of B
execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97
to 106 in Order 21 of the Code are subsumed under the caption "Resistance
to delivery of possession to decree-holder or purchaser". Those rules are
intended to deal with every sort of resistance or obstructions offered by any
person. Rule 97 specifically provides that when the holder of a decree for
possession of immovable property is resisted or obstructed by- "any person"
c
in obtaining possession of the property such decree-holder has to make an
application complaining of the resistance or obstruction. Sub-rule (2) makes
it incumbent on the court to proceed to adjudicate upon such complaint in
accordance with the procedure laid down.
D
It is true that Rule 99 of Order 21 is not available to any person until
he is dispossessed of immovable property by the decree-holder. Rule 101
stipulates that all questions "arising between the parties to a proceeding on
an application under rule 97 or rule 99" shall be detennined by the executing
court, if such questions are "relevant to the adjudication of the application".
A third party to the decree who offers resistance would thus fall within the E
ambit of Rule I 01 if an adjudication is warranted as a consequence of the
resistance or obstruction made by him to the execution of the decree. No
doubt if the resistance was made by a transferee pendente lite of the judgment
debtor, the scope of the adjudication would be shrunk to the limited question
whether he is such transferee and on a finding in the affinnative regarding
F
that point the execution court has to hold that he has no right to resist in
view of the clear language contained in Rule 102. Exclusion of such a transferee
from raising further contentions is based on the salutary principle adumbrated
in Section 52 of the Transfer of Property Act.

When a decree-holder complains of resistance to the execution of a G
,.... decree it is incumbent on the execution court to adjudicate upon it. But while
' making adjudication, the court is obliged to determine only such question as
may be arising between the parties to a proceeding on such complaint and
that such questions must be relevant to the adjudication of the complaint.

The words "all questions arising between the parties to a proceeding H
- \
594 SUPREME COURT REPORTS [1998] 2 S.C.R

A on an application under Rule 97" would envelop only such questions as
would legally arise for determination between those parties. In other words,
the court is not obliged to determine a question merely because the resistor
raised it. The questions which executing court is obliged to determine under
rule IOI, must possess two adjuncts. First is that such questions should have
legally arisen between the parties, and the second is, such questions must
B be relevant for consideration and determination between the parties, e.g. ifthe
obstructor admits that he is a transferee pendente lite it is not necessary to ~

determine a question raised by him that he was unaware of the litigation when
he purchased the property. Similarly, a third party, who questions the validity
of a transfer made by a decree .. holder to an assignee, cannot claim that the
c question regarding its validity should be decided during execution proceedings.
Hence, it is necessary that the questions raised by the resistor or the obstructor
must legally arise between him and the decree-holder. In the adjudication
process envisaged in order 21 Rule 97(2) of the Code, execution court can
decide whether the question raised by a resistor or obstructor legally arises
between the parties. An answer to the said question also would be the result
D of the adjudication contemplated in the sub-section.

In the above context we may refer to Order 21 Rule 35(1) which reads
thus:

"Where a decree is for the delivery of any immovable property,
E possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on
his behalf, and, if necessary, by removing any person bound by the
decree who refuses to vacate the property."

It is clear that executing court can decide whether the resistor or
F obstructor is a person bound by the decree and he refuses to vacate the
property. That question also squarely falls within the adjudicatory process
contemplated in Order 21Rule97(2) of the Code. The adjudication mentioned
therein need not necessarily involve a detailed enquiry or collection of
evidence. Court can make the adjudication on admitted facts or even on the
G averments made by the resistor. Of course the Court can direct the parties to
adduce evidence for such determination if the Court deems it necessary.
"'
In Bhanwar Lal v. Satyanarain and anr., [1995] l SCC 6, a three - Judge
Bench has stated as under :

H
-
"A reading of Order 21, Rule 97 CPC clearly envisages that "any
SILVERLINE FORUM PVT. LTD. v. RAJIV TRUST [THOMAS, J.] 595
person" even including the judgment-debtor irrespective whether he A
claims derivative title from the judgment-debtor or set up his own
right, title or interest de hors the judgment debtor and he resists
execution of a decree, then the court in addition to the power under
Rule 35(3) has been empowered lo conduct an enquiry whether the
obstrnction by that person in obtaining possession of immovable
property was legal or not. The degree-holder gels a right under Rule B
97 to make an application against third parties to have his obstrnction
removed and an enquiry thereon could be done."

In Brahmdeo Chaudhary v. Rishikesh Prasad .Jmswal and another,
(1997) 3 SCC 694, this Court, following the aforesaid decision, made the under- C
quoted observation:

"It is pertinent to note that the resistance and/or obstruction to
posse3sion of immovable property as contemplated by Order 21, Rule
97 CPC could have been offered by any person. The words 'any
person' as contemplated by Order .21, Rule 97, sub-rule (1) are D
comprehensive enough to include apart from judgment-debtor or
anyone claiming through him even persons claiming independently
and who would, therefore, be total strangers to the decree .
.. . .. . .. .. .. . .. .. . .. .. .. ..·.......... .. .... . .. .. . Consequently it must be held that
Respondent l's application dated 6.5.1991 though seeking only re-
issuance of warrant for delivery of possession with aid of armed force E
in substance sought to bypass the previous resistance and obstruction
offered by the appellant on the spot. Thus it was squarely covered
by the sweep of Order 21, Rule 97, sub-rnle (1) CPC. Once that
happened the procedure laid down by sub-rule (2) thereof had to be
followed by the executing court. The Court had to proceed to adjudicate F
upon the application in accordance with the subsequent provisions
contained in the said order."

We are in respectful agreement with the aforesaid statement of law.

We, therefore, agree with the contention of Shri Siddhartha Shankar G
Ray, learned senior counsel for the second respondent that the High Court
I' went wrong in holding that the contention of second respondent cannot be
considered under Order 21 Rule 97 of the Code. But the aforesaid finding is
not sufficient to dispose of this appeal.

Shri Kapil Sibal contended that second respondent being a sub-tenant H
596 SUPREME COURT REPORTS [1998] 2 S.C.R

A under the first sub-tenant he is bound by the decree of ejectment albeit his
not being made a party to the suit in which the decree was passed. It is quite
clear that second respondent is a tenant under the first sub-tenant. This can
be gathered from paragraph 6 of the application which second respondent
filed in the execution court.

B Such a sub-tenant as the second respondent is bound by the decree
of ejcctment. Section 16 of the W.B. Act deals with "creation and termination
~.
of sub-tenancies to be notified." Sub-section (1) of Section 16 relates to sub-
tenancies created after the commencement of the W.B. Act. Sub-sections (2)
& (3) deal with sub-tenancies created before the commencement of the W.B.
C Act. As all the sub-tenancies in this case were created after the commencement
of the W.B. Act it is not necessary to consider the latter two sub-sections.
Hence Section 16(1) alone is extracted below:

"(1) Where after the commencement of this Act, any premises are sub-
let either in whole or in part by the tenant with the previous consent
D in writing of the landlord, the tenant and every sub-tenant to whom
the premises are sub-let shall give notice to the landlord in the
prescribed manner of the creation of the sub-tenancy within one
month from the date of such sub-letting and shall in the prescribed
manner notify the termination of such sub-tenancy within one month
E of such terntination."

A reading of the sub-section reveals that three additional requisites are
also necessary for a sub-tenant to get wiggled into the contours of the sub-
section. They are (1) the sub-tenancy should have been created after the
commencement of the W.B. Act; (2) thr. landlord of the premises should have
F given written permission to the tenant to create such sub-tenancy; (3) the
tenant and the sub-tenant should have notified the landlord of the creation
of the sub-tenancy within one month of such creation. Sections 16(2) and
16(3) deal with sub-tenants who got into possession before commencement
of the West Bengal Act, and they too are obliged to notify the landlord within
G the time specified.
The sub-tenants who secure perch in Section 16 are afforded with two '\
advantages during any action which the landlord may launch for eviction of
the tenant. Those advantages are incorporated in Section 13(2) of the W.B.
Act. One of them is that such sub-tenant is entitled to be made a party to
H the suit for recovery .of the premises by the landlord. Second is that no decree
SILVERLINE FORUM PVT. LTD. v. RAJIV TRUST [THOMAS, J.] 597
or order for ejectment shall be passed against such sub-tenant except under A
. certain specified conditions. Thus, sub-section (2) of section 13 and Section
16 of the W.B. Act are ine:1.1ricably inter-twined with each other.

Sub-section (4) of section 13 of the W.B. Act has no relevance in the
present case as it only deals with the claim of a landlord for eviction on the
ground that he reasonably requires the premises either for his own occupation B
or for the purposes of renovation, re-building etc. Now we may refer to Sub-
section (3) of Section 13 of the W.B. Act. It reads thus.:

"Save as provided in sub-section (2) and sub-section (4), a decree or
order for the delivery of possession of any premises shall be binding C
on every sub-tenant."

It is the statutory mandate that the decree for ejectment shall be binding
on every sub-tenant unless he falls within the ambit of either sub-section (2)
or sub-section (4) of Section I 3. There is no case for the second respondent
that he has given any notice to the landlord before the expiry of the time D
schedule fixed in Section 16 of the Act. Nor has he a case that he would fall
within the purview of the aforesaid two sub-sections in Section 13 of the W.B.
Act.

Of course, learned counsel for second respondent contended that the
instrument of lease as between Arnn Kumar Jalan and Mis. Rajiv Trust E
contained a term permitting the tenant to create sub-tenancy. Learned counsel
for the appellant argued that such permission cannot be over-borrowed by
sub-tenants to create further sub-tenancies, and he pointed out that even
second respondent has no claim that he has notified the landlord as envisaged
in Section 16(1) of the W.B. Act.
F
It is clear from Section 16(1) of the W.B. Act that the previous consent
of the landlord contemplated therein can only be availed of by his tenant. In
other words, the tenant under the landlord can use that consent to sublet the
premises to another person. A lease between the tenant and his sub-tenant
would be governed by the terms agreed upon between them and the tenant G
cannot bind his landlord by any such terms.

In Shanti/al Rampuria and ors. v. Mis vega Trading Corporation and
ors., [1989) 3 SCC 552, a two Judge Bench ofL'lfa Court considered the scope
of Section 16 of the W.B. Act and held that "previous consent in writing of
the landlord with respect to each sub-letting separately is essential and a H
598 SUPREME COURT REPORTS [1998] 2 S.C.R

A general authority to the tenant in this regard will not be sufficient in law." In
that case, none of the sub-tenant was impleaded as party, and this Court held
that since notice under Section 16 was not served on the landlord the non-
impleadment will not affect validity of the proceedings for eviction. Their
Lordships sought support from another two-Judge Bench decision of this
Court in Mis. Shalimar Tar Product Ltd. v. H. C. Shanna and Ors., (1988) 1
B SCC 70, in which similar provisions in the Delhi Rent Control Act were
considered.

In Juthika Mulick and anr. v. Dr. Mahendra Yashwant Bal and Ors.,
[ 1995) 10 SCC 560, provision~ of W.B. Act were the subject matter for
C consideration, but nothing contrary to the decision in Shantilal Rampuria
(supra) has been stated by this Court. Reference was also made to the
decision in Mahabir Prasad f/erma v. Dr. Surinder Kaur, (1982) 2 SCC 258.
Though it related to the provisions of East Punjab Urban Rent Restriction
Act, 1949, the question considered was whether a sub-tenancy created with
the consent of the landlord during the subsistence of the tenancy would
D continue to be lawful even after the expiry of the period of lease. The answer
was in the affirmative. At any rate that decision does not run counter to the
view adopted by the two-Judges Bench in Shanti/al Rampuria (supra).

Thus, without any difficulty, it can be held that consent given by the
landlord to his tenant for creation of the sub-tenancy is valid only as between
E the landlord and his tenant. Such consent cannot be used by a sub-tenant
to create another sub-tenancy under him so as to bind the landlord.

For the aforementioned reasons, we allow this appeal and set aside the
order under challenge. We hold that appellant is entitled to delivery of
G possession by removing the obstruction/resistance made by the second
respondent.

M.P. Appeal allowed.