(1) This is a revisional application, which arises out of a suit instituted by the owner of the property against her tenant and others whom she alleged to be sub-tenants. The plaintiff is Opponent No. 1 Opponent No. 2 is the original tenant and petitioners Nos. 1 and 2 are original defendants Nos. 2 and 3, who came subsequent to the creation of the tenancy in favour of Opponent No. 2 The plaintiff alleged that the premises were given to defendant No. 1 as a tenant at a fixed rental of Rs. 100/- per month without electric and water charges. The front portion of the premises was to be used as a shop and the rear as residence. She alleged that defendant No. 1 had sublet the property to defendant No. 2 since about May 1958, that she learnt in July 1958 that large alterations were carried out to property and she alleged, on an assumption, that defendant No, 1 had carried out the alterations. She further alleged that defendant No. 1 was making profit out of the subletting and on these grounds she was entitled to the possession of the premises.
(2) The defendants denied that there was subletting. They denied that there was alteration without the consent of the plaintiff and they claimed the protection of the Rent Act. The learned trial Judge held that defendants Nos. 2 and 3 were sub-tenants, that defendant No. 1 was profiteering and that defendants carried out permanent alterations in the property. He held defendant Nos. 2 and 3 were not entitled to any notice and, therefore, made the decree in eviction. These findings were confirmed by the learned Assistant Judge, who heard the appeals filed by defendant Nos. 2 and 3 and defendant No. 1 separately. Defendant Nos. 2 and 3 now come in revision to this Court.
(3) The argument now made by Mr. Kotwal is that on the findings of the Court that defendants Nos. 2 and 3 are sub-tenants they are entitled to the protection of the Rent Act. He relies on section 15 as amended and says that under section 14 they become direct tenants on the termination of the tenancy of defendant No. 1.
(4) The trial Judge has found that after the Coffee House was started defendants 1 to 3 effected the alterations in the premises and that they were in contravention of the Rent Act. Mr. Kotwal argues that when the learned Judge said in para 15 that 'All this was done after defendants 2 and 3 came there, and this was done without authority and permission,' means that the defendant 1 made the alterations earlier but they only compounded the offence with the Cantonment Board after defendants 2 and 3 came there. This is not so. The trial Judge makes it clear in the end of para 14 that the plea of defendants that repairs were made when defendant No. 1's guest house was running was clearly false. To the same effect is the finding by the learned Appellate Judge. This being so, it must be held that defendants 2 and 3 are themselves guilty of altering the premises. Even on merits the finding is justified.
(5) It is true that the plaintiff both in her notice and the plaint said that defendant No. 1 had made the alterations, but she also said that in the month of April 1958 her daughter who was supervising the premises, left India and she received the notice from the Cantonment Board in July 1958 referring to the unauthorized alteration. It is obvious that she alleged that defendant No. 1 made the alteration because of the fact that defendant No. 1 was her tenant but the statement cannot be regarded as an admission, which on evidence is found to be not correct. The finding that the alterations were made by defendant Nos. 1 and 3 is clear and unequivocal and we agree with the same.
(6) The next question is whether the amendment to sections 14 and 15 of the Rent Restriction Act entitles defendants Nos. 2 and 3 on the assumption that they are subtenants to the protection of the Act. Before the amendment section 14 provided that all those who were lawful sub-tenants on the coming into force of the Rent Act of 1947 would be deemed to be tenants on the termination of the tenant's tenancy. By section 15 subletting, assignment or transfer of tenancies was prohibited, though a power was given to the State Government to permit transfers in notified cases. By the amending Act persons, who had obtained sub-leases or who were transferees of premises from tenants before the commencement of Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 and who were in possession on that date became lawful sub-tenants, and assignees under sub-section 2 of the section from the inception of the sub-tenancies and assignments. By the amendment in section 14 which is to make a sub-tenant a direct tenant on the termination of the head tenancy words ' before the commencement of Bombay Rents, Hotel and Lodging Houses Rates Control (Amendment) Ordinance 1959' were substituted for 'before the commencement of Bombay Rents, Hotel and Lodging House Rates Control Act 1947'.
(7) One immediate effect of rendering the sub-tenancies and assignments valid was that defendant Nos. 2 and 3 became legal subtenants of defendant No. 1 from the time that the premises were sub-let to them. In view of the amended section 15(2) it has to be held that defendant No. 2 was a lawful sub-tenant even though the sub-tenancy was prohibited by sub-section (1) or contract since the bar has been retrospectively removed. By definition of word tenant as contained in section 5, Clause 11, sub-clause (a) such sub-tenants became themselves tenants and, therefore, they were bound to observe all the terms of tenancy and had to comply with all the provisions of the Rent Act, and if they committed a breach thereof then the protection would be taken away Section 14 cannot be read aside from the other provisions of the Act and if a sub-tenant became a lawful tenant from the inception of the sub-tenancy he was bound to Act strictly according to the Act i.e. must be ready and willing to observe the terms of the tenancy and must not to do anything that is prohibited by the Act. If he contravened the Act or did not observe the terms of the tenancy, section 14 could not possibly be regarded as giving him the right to be a tenant under the landlord. This is made clear by the words 'shall, subject to the provisions of this Act be deemed to become the tenant.' Since defendants Nos. 2 and 3 have not observed the terms of the tenancy by causing permanent alterations in the premises they are not entitled to be tenants of the landlord.
(8) There is another aspect from which section 14 must be considered. The right of the sub-tenant is subject to the provisions of the Act and not an absolute right. The section therefore is controlled by the other sections of the Act, and if they entitle the landlord in a given case to obtain possession, section 14 cannot come in the way. Section 12 entitles the landlord to obtain possession for non-payment of rent and section 13 for other reasons. If therefore the landlord is entitled to obtain possession under any of these sections. S. 14 must give way. It would be preposterous to suggest that tenant who has destroyed the value of the property by unauthorized alterations should be able to successfully prevent the landlord from obtaining possession by parting it to a sub-tenant or who has not paid rent for years should prevent the landlord from obtaining possession by inducting a sub-tenant when notice is given. Again in a case where a landlord has sued both the tenant and sub-tenant for possession on the ground that he wants the premises for his personal use it could not be intended that he must thereafter start another litigation against the sub-tenant. For if section 14 is allowed to have uncontrolled effect after the termination of the tenant's tenancy the sub-tenant would become the tenant, and then he could claim a fresh notice for eviction. The section, we think means that the sub-tenant would be deemed to have become a tenant, if the landlord is otherwise not entitled to possession. Since by section 15 as amended sub-tenancy and assignment in the case of specified sub-tenants or assignees is rendered legal, landlord's right to recover possession on the ground of sub-letting or assignment in such a case is taken away, the sub-tenant or assignee would be entitled to retain possession.
(9) In Lord Hylton v. Heal (1921) 2 K. B. 438 the effect of section 15 (3) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, which is similarly worded was considered and it was held that the section means:
'. . . . . . . that where the interest of the original tenant has been lawfully determined, then any sub-tenant assuming that he is entitled to retain possession under the provisions of the Act, shall, notwithstanding that the title under which he derived his interest has come to an end, continue to be tenant, the terms on which he retains possession being the same as those on which he would have held from the tenant if the tenancy had continued'.
In our view therefore even on the assumption that the tenant defendant No. 1 had effected the alterations, since the landlord became entitled to possession defendants 2 and 3 cannot have the protection of section 14.
(10) Mr. Kotwal then contended that defendant No. 2 is a Co-operative Society and a suit could not be filed against it without notice to the Registrar of the Societies as required by section 70 of the Bombay Co-operative Societies Act, 1925. This point was not taken in the trial Court and it could not possibly be permitted to be urged in the appellate Court because it is a question of fact. The learned appellate Judge was, therefore, not justified in our view in entertaining the argument. Again assuming that any such contention can be permitted the section requires that no suit shall be instituted without notice. In this case it is an admitted position that defendant No. 2 became a registered body on 14th October 1958, when the suit was already pending.
(11) It was then contended that the plaintiff could not file a suit against defendant No. 2 by its President and Secretary. The contention of the defendant was that initially there was a partnership and thereafter it was converted into a Co-operative Society. Until in fact it became so converted, it was a mere partnership and the plaintiff was, therefore, justified in suing the partnership in the partnership name. In fact the plaintiff explained in paragraphs 1 and 2 how she filed the suit against defendant NO. 2 by its name. At no time did any of the defendants intimate to the plaintiff how the matter stood and it is impossible to permit the defendants to take advantage of this contention now. In our view under O. 30, Rr. 1 and 10 of the Civil Procedure Code the suit is competently filed and if defendant No. 3 was in management he could be joined as representing the partnership. The revisional application must, therefore, fail and is dismissed with costs. The stay is vacated. The result to be communicated to the lower Court immediately.
(12) C. A. 2952/63 filed by the heirs of defendant No. 1 rejected. The petitioners to pay the costs of the opponents.
(13) Revision dismissed.