1. The present petition has been filed admittedly by the landlord of the premises, which are given to United transport Motor Company (respondent No. 1) on a monthly rent of Rs. 81/-. It is no more in dispute that the tenancy between parties is month to month and is according to English Calendar.
2. The present petitioner-landlord applied under clause 13 (3) (iii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, hereafter called the Rent Control Order, for permission to give quit notice to the respondent-company on the ground that it has sublet a portion of the premises to other two respondents. Now this permission has been refused by the authorities under the Rent Control Order on the ground that this sub-letting is prior to the coming into force of the said Order.
3. In this court it is not disputed on behalf of the respondent-tenant-company that there is a sub-letting and in the return the following averments appear:
'.........It is denied that the respondent No. 1 has sublet the portions without the permission of the petitioner. The sub-tenants are in existence long before the House Rent Control Order came into operation, and the sub-tenancy was created with the consent of the petitioner.'
Then again in para 5 of the return it is said:
'........ Inasmuch as, the sub-tenancy admittedly is created to the knowledge of the petitioner since more than 12 years on the date of the application, the application was also barred by time, and no relief can be given to the petitioner, who was acquiesced in the sub-tenancy, and who has waived or will be deemed to have waived objection if any to creation of sub-tenancy'.
4. So, it is clear that between parties the fact that the other respondents have been inducted on the portion of the house is not in dispute any more. The view that prevailed with the authorities under the Rent Control Order is that as the sub-tenancy was created prior to the date of the commencement of the Order, the ground is not available to the landlord.
5. Clause 13 (1) prohibits a landlord from giving a notice to a tenant for determination of the lease except with the previous permission of the Controller. Clause 13 (3) deals with the grounds on which such permission can be sought and can be granted. The relevant portion of clause 13 (3) (iii) may be extracted:
'13. * * * *
(3) If after hearing the parties the Controller is satisfied.
* * * * * (iii) that the tenant has without the written permission of the landlord sublet the entire house or any portion thereof;
* * * * * he shall grant the landlord permission to give notice to determine the lease as required by sub-clause (1)'.
It is, therefore, clear that if the landlord satisfies the controller that any of the grounds mentioned in sub-clause (3) are available, then he has to give permission to give notice so that the landlord may determine the lease.
6. The words of this sub-clause only call for interpretation. The words indicate a state of affairs where a tenant has sublet either the entire house or any portion thereof and has not obtained the written permission from the landlord, the condition is entirely satisfied. The phrase 'has sublet' occurring herein is almost pari materia in the legislation, i.e. Rajasthan Premises (control of Rent and Eviction) Act, 1950 and has been considered by the Supreme Court in Gappulal V. Thakurji Shrji Dwarkadhesshji, : 3SCR989 and it has been conserved in that judgment with respect to the same phrase as under:
'The question whether a sub-letting before the coming into force of the Act is within the purview of clause (e) of S. 13 (1) depends upon the construction of that clause. The relevant words are 'has sub-let'. The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present was either before or after the Act came into force. All such sub-lettings are within the purview of clause (e).'
It may be mentioned that their Lordships were considering similar provision though not similarly phrased that occurred in Section13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which provided one of the grounds of ejectment where the tenant has assigned, subject or otherwise any part of the premises without the permission of the landlord. The argument that this provision takes away vested right and should not be given retrospective effect was also negatived by the Supreme Court. Their Lordhsips observed:-
'........ Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13 (1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for presuming that Section 13 (1) (e) is not intended to apply to sub-lettings before the Act came into force. If the tenant has sub-let the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under Section 13 (1) 9e), and it matters not that he had the right to sub-let the premises under Section 108(j) of the Transfer of property Act.'
7. Applying these principles to the present clause it is clear that the scheme of the clause is almost identical except that the tenant has to satisfy further that he has written permission of the landlord for the purpose of subletting. No other type of excuse is available to the tenant who is found to have sublet either the entire house or any portion thereof. The words 'has sublet' do indicate, therefore, that even the subletting prior to the coming into force of the present Rent Control order is within the purview of sub-clause (3) (iii) of clause 13, and it is only for the landlord to satisfy that there has not been any written permission for such subletting.
8. thus, it is ex facie clear that the view taken by the authorities under the Rent Control Order that there was a right in the tenant because of the provisions of S. 108(j) of the Transfer of property Act to sublet the premises and therefore the ground was not available is entirely erroneous. The rent Controller Akola proceeded on the basis that the non-applicants 2 and 3 were the subtenants since 1936-37 and, therefore, the provisions of clause 13 (3) (iii) of the Order were not attracted as the sub-tenancies were created much before the coming into force of the Rent Control Order, 1949. The appellate authority after considering the respective cases and the evidence led on behalf of the Appellant landlord mainly restricted itself to the submission made that there should be an adverse inference drawn against the respondents including the submission that respondent No. 1 could be called upon to produce the documents. Though the last sentence in that order appears to the effect that there is some error committed by the Rent Controller, it appears to the effect that there is some error committed by the Rent Controller, it appears to be grammatically not correctly worded as the appeal itself is ultimately dismissed. There was a review application filed by the present petitioners where the plea was that sub-tenancy was created after the incorporation of the company. That was also negatived by saying that this was not a matter for review.
9. Now, in this court, it is admitted as are the averments extracted from the return-that there are sub-tenants inducted by the tenant himself and there is no plea that this sub-tenancy was created with any written permission from the landlord. What is said is that it was with his consent that the sub-tenancy was created.
10. Now when the matter was argued on behalf of the respondent-tenant, the only submission that was made to this court was that the matter requires to be remanded as the tenant met the case of the landlord that this was a sub-tenancy created after the Rent Control Order was put into effect. It was further submitted that therefore if the matter is decided on the present plea, prejudice is likely to be caused to the tenant in his defence, as particularly the pronouncements by their Lordships of the Supreme Court were not available to the parties. No submissions were made on the merits of the consent or acquiescence or estoppel that may operate upon any landlord. The learned counsel expressly stated that he wishes to restrict his submission only to the case of remand and nothing more.
11. Now, plainly therefore the landlord is entitled to succeed. As the case is, the tenant has, though it may be even prior to the coming in to force of the Rent Control Order, subject the two portions of the premises tenanted to him to the other two respondents. That matter cannot now be disputed. No written permission has been pleaded, though the entire case had been under clause 13 (3) (iii). In the application filed by the landlord there is a specific plea to the effect;
'It is submitted that the N.A. No. 1 has sublet these portions of the block premises to N. As. Nos. 2 and 3, without taking any written permission of the applicant, in contravention of the law.'
To this, in the written statement filed on behalf of the tenant, there is no specific denial. The plea of the tenant is merely based on the right that was available to the tenant under the provisions of the Transfer of property Act. It is stated in the pleadings:
'At that time, there was no prohibition to the sub-tenancy, and indeed, under the provisions of the Transfer of property Act, every property was transferable. Indeed, the sub-tenancy was created with the consent and connivance of the applicant and the non-applicants 2 and 3 are continuing as such, for the last more than 32 years, to the knowledge of the applicant.'
Thus the averment that ther was no written permission from the landlord is not at all denied. In this court also, when it was put to the learned counsel, he was unable to say whether there was any written permission given by the landlord for the purpose of sub-tenancy. During the entire case the emphasis had been on the knowledge, consent or connivance of the landlord. The terms of sub-clause (3) (iii) are pretty clear and only permit the tenant to sublet with the written permission of the landlord.
12. Whether a defence of acquiescence, consent or knowledge of the landlord is available or not, need not be considered, as the learned counsel for the tenant submitted at the Bar that he restricts his case to the matters of remand and nothing more in view of the authoritative pronouncement of the Supreme Court which is referred to above. Whether such a defence is available or not, is a matter therefore, to decided in a proper case.
13. As far as the plea of remand is concerned, I have indicated that there is no such course open in the present matter. The plea has been properly understood by the tenant even in the lower Court. The pleading of the landlord had been pretty clear. It did not restrict as was said and argued that the sub-letting was only after coming into force of the Rent Control Order. In fact, the pleading was that there is a sub-tenancy and it was without written permission of the landlord. To that the plea was raised that the sub-tenancy was much prior to the coming into force of the Rent Control Order and that was with knowledge and consent of the landlord and the provisions of the Transfer of property Act were invoked. Thus parties understood the case clearly and no prejudice is caused to sanybody. The facts being almost admitted between parties, the landlord is entitled to invoke Clause 13 (3) (iii) and there is ample material even on the admissions of the tenant which satisfy the ground mentioned in that clause.
14. That being the position, the present petition has to be allowed. The orders made by the Rent control authorities are hereby set aside and the landlord is permitted to give notice to the tenant determining the lease as required by Clause 13 91) as he satisfies the condition laid down in Clause 13 (3) (iii) of the Rent Control Order. Thus the petition succeeds and is allowed with costs.
15. Petition allowed.