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Kakubhai and Co. Vs. Nathmal Kisanlal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 118 of 1967
Judge
Reported inAIR1980Bom25; 1979MhLJ450
ActsCentral Provinces and Berar Letting of Houses and Rent Control Order, 1949; Indian Contract Act, 1872 - Sections 23; Evidence Act, 1872 - Sections 115; Code of Civil Procedure (CPC), 1908 - Sections 2(12) - Order 20, Rule 12; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7, 7(1), 7(2) and 7-A; Transfer of Property Act; Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 - Sections 8; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 15
AppellantKakubhai and Co.
RespondentNathmal Kisanlal
Appellant AdvocateM.T. Dharmadhikari and;B.N. Mohta, Advs.
Respondent AdvocateA.S. Bobde and;F.J. Gimi, Advs.
Excerpt:
tenancy - eviction - section 23 of central provinces and berar letting of houses and rent control order, 1949 - appellant's grand father was tenant on respondent premises - appellant's grand father died after some year - after end of agreement plaintiff send notice to deceased son tenant for eviction of premises - court below ordered in favour of plaintiff on ground that no intimation was given to rent controller when defendant was put in possession of suit premises as tenant - notional vacancy is created on account of transaction and notice under clause 22 is essential - tenancy created without giving such intimation is illegal - defendant has obtained possession of premises under void contract - held, appeal dismissed. - - at this stage we would like to state that it is this block.....gadgil, j.1. this is defendant's appeal challenging the decree passed against him in special civil suit no. 16 of 1966 of the file of the civil judge, senior division, akola.2. the litigation pertains to the shop premises situate at akola. they are part of house no. 92 in ward no. 29. this house is of the ownership of the plaintiff since 2-2-1954 as on that date the plaintiff purchased it from the previous owner messrs sawatram & sons limited under the sale deed ex. 117. deceased shiojibhai was occupying all three blocks or tenements in the said house as a tenant since before this purchase. there is no dispute that shiojibhai left possession of one of the blocks sometime in 1956. thereafter the two blocks continued in possession of shiojibhai on the rent of rs. 1761/- per year. shiojibhai.....
Judgment:

Gadgil, J.

1. This is defendant's appeal challenging the decree passed against him in Special Civil Suit No. 16 of 1966 of the file of the Civil Judge, Senior Division, Akola.

2. The litigation pertains to the shop premises situate at Akola. They are part of house No. 92 in ward No. 29. This house is of the ownership of the plaintiff since 2-2-1954 as on that date the plaintiff purchased it from the previous owner Messrs Sawatram & Sons Limited under the sale deed Ex. 117. Deceased Shiojibhai was occupying all three blocks or tenements in the said house as a tenant since before this purchase. There is no dispute that Shiojibhai left possession of one of the blocks sometime in 1956. Thereafter the two blocks continued in possession of Shiojibhai on the rent of Rs. 1761/- per year. Shiojibhai died on 9-3-1958 leaving behind him his daughters and two brothers by name Shamjibhai and Hanaraj. There is no dispute that these three brothers had already partitioned their estate on 15-11-1948 under the partition deed Ex. 128.

3. The plaintiff's case in brief is that by Diwali 1958, i.e. by about 11-11-1958 both the blocks were given in possession of the plaintiff and thereafter one of the blocks, namely, the suit premises were taken on lease by Shamjibhai on a monthly rent of Rs. 100/-. Till next Diwali, (i.e. Oct.-November 1959) Shamjibhai alone was the tenant of that block. At this stage we would like to state that it is this block which is the subject-matter of this litigation. Thereafter from Oct-Nov. 1959 till Oct.-Nov. 1961 Shamjibhai and the present defendant Kakubhai were jointly possessing the suit premises as tenants on the rent of Rs. 100/- per month. The plaintiff further alleges that after Nov. 1961 (after Diwali 1961) the defendant alone continued as a tenant, and since then he has been paying rent. The plaintiff, however, contends that the lease of the suit premises initially to Shamjibhai in 1958 and thereafter to Kaku-bhai in 1961 was bad and inoperative, inasmuch as it was in contravention of the provisions of the C. P. and Berar Letting of Houses and Bent Control Order, 1949 (hereinafter referred to as the Rent Control Order). Clause 22 of that Order prescribes that every landlord shall within seven days from the date on which a house becomes vacant or available for occupation give intimation about this fact to the Collector in the prescribed form and that he shall not let it or occupy it except in accordance with Clause 23. Clause 23 states that on receipt of such intimation but within fifteen days thereof the Collector may order the landlord to let out the house to a person mentioned in the order. If no such order is passed, the landlord is entitled to let out the house to any person. The main allegation in the plaint is that the plaintiff has not given any intimation about the suit premises having fallen vacant' in Nov. 1958 when they were let out to Shamji. Similarly no intimation was given when the premises were let out to the defendant in October-November 1961. With this allegation it is contended that the transaction of lease is void as it is forbidden by law, and that, therefore, the defendant has been in possession either as a licensee or as a trespasser. The plaintiff had in 1965 filed two proceedings against the defendant--one was Small Cause Suit No. 8 of 1965 claiming a decree for arrears of rent of Rs. 200/- and the other proceeding was under clause 13 of the Rent Control Order. That clause provides that a landlord can terminate the tenancy of a tenant only after obtaining previous permission of the Rent Controller. The grounds on which such permission can be granted are enumerated in clause 13 (3). Both these proceedings were, however, withdrawn by the plaintiff. For example, Ex. 115 is a copy of the order-sheet in Small Causes Case No. 8 of 1985 showing that the suit was dismissed for default. Similarly the order-sheet Ex. 114 shows that the Rent Control Case No. 211/71/64-65 was disposed of for want of prosecution. The plaintiff has alleged in the plaint that these proceedings were filed on a mistaken belief that the defendant was a lawful tenant. It is further contended that the proceedings were withdrawn as soon as the plaintiff came to know that the lease in favour of the defendant was void. The plaintiff, therefore, filed a suit under appeal claiming possession and mesne profits. Rs. 1436.66 were claimed as mesne profits from Oct.-Nov. 1964 till 4-1-1966 at the rate of Rs. 100/- per month. Another item of mesne profits consists of Rs 2,160/- so as to cover the period from 4-1-1966 to 8-8-1966 at the rate of Rs 10/- per day.

4. The defendant resisted the suit by his written statement Ex. 26. In substance, he contended that since the time when Shiojibhai was alive, the defendant has been in possession along with Shiojibhai, and after his (Shioji-bhai's) death, with Shamjibhai. He denied that in November 1958 possession of both the blocks was handed over to the plaintiff or that thereafter the suit premises were separately taken on rent by Shamjibhai. According to him, the lease that was operative at the time of Shiojibhai's death continued even after the death of Shiojibhai. He pleaded that he was working with Shiojibhai in the shop premises as Shiojibhai's grandson and as such was entitled to an interest in the estate of deceased Shiojibhai as well as of his heirs. The defendant further pleaded that after Shiojibhai's death, the plaintiff agreed that the old lease would subsist and that on or about 22-11-1958 the plaintiff accepted Shamjibhai as a tenant along with the defendant It was further pleaded that possession was not handed over to the plaintiff at any time and that, therefore, there was no necessity for giving intimation to the Rent Controller under clause 22 of the Rent Control Order. The defendant denied that the lease in his favour is void. His another contention is that after having accepted the defendant as a tenant, the plaintiff is now estopped from taking the plea that the lease is void. The defendant made a reference to the Rent Control Proceedings and the Small Cause Suit that was filed by the plaintiff and then contended that the plaintiff is also estopped on account of taking such steps on the basis that the defendant was a tenant. The defendant denied that he is either a licensee or a trespasser. He also denied his liability to pay any mesne profits.

5. The learned Civil Judge, Senior Division, heard the suit after framing necessary issues. In substance, he came to the conclusion that by October-November 1958 the plaintiff obtained possession of the two blocks and that thereafter the suit premises were let out to Shamjibhai. The trial Court also held that the suit premises were occupied by the defendant along with Shamjibhai from Diwali of 1959 to Diwali of 1961 and that thereafter the defendant alone occupied the premises as a tenant. It was held that no intimation was given to the Rent Controller when Shamjibhai or the defendant was put in possession of the suit premises as a tenant. A finding was recorded that the lease in favour of Shamjibhai as also of the defendant is void on account of the absence of such intimation. The learned Civil Judge found that the defendant has been in permissive possession and as such a licensee. The said licence was treated as revoked on account of the plaintiff's notice. The suit was, therefore, decreed and hence this appeal.

6. Mr. Dharmadhikari for the appellant submitted that the entire approach to this litigation is erroneous, inasmuch as there was no vacancy in November 1958 as also in November 1961 and as such it was not necessary to give any intimation of such vacancy to the Collector under clause 22 of the Rent Control Order. We have already referred to the contentions raised by the defendant in this respect. According to the defendant, Shiojibhai, Shamjibhai and the defendant were in possession of the premises during the lifetime of Shiojibhai and that after his death Shamjibhai and the defendant continued to be in possession. This joint possession came to an end by November 1961 and since then the defendant is in exclusive possession and that too as a tenant. Of course, the plaintiff has denied this position. However, we think that the evidence on record does indicate that actual physical delivery of possession in Nov. 1958 had not taken place. Similarly, it appears that the defendant was doing some work in the shop even during the lifetime of Shiojibhai. Plaintiff Nathmal (Ex. 140) has made a statement in the cross-examination (Para 4) that the defendant might be sitting in the shop of Shiojibhai during Shiojibhai's lifetime. Nandaial Mehta (D. W. 1) was serving with Shiojibhai. He has stated the possession of the suit premises was never given up by Shiojibhai and that after his death the defendant has been in possession. He has also stated that the defendant used to sit in the shop of Shiojibhai as his relative and not as a servant. (Shamjibhai D. W. 2) has given similar deposition by stating that Shiojibhai never left possession of the premises. His evidence indicates that he wants to say that even after Shiojibhai's death the possession of the suit premises has not been given to the plaintiff. Defendant Kakubhai (D. W. 3) has entered the witness-box and has stated that possession was never handed over to the plaintiff. He has also added that he used to carry on his work in the suit premises. He has added that the electric meter in the suit premises is still in the name of Shiojibhai. Mr. Dharmadhikari relied upon all this evidence for the purpose of contending that there was no physical delivery of possession was no alleged by the plaintiff. Mr. Bobde for the respondent, however, submitted that the receipt Ex. 113 dated 22-11-1958 would be a good proof that possession was actually delivered to the plaintiff oy Diwali of 1958. Ex. 113 is a receipt executed by Shamjibhai in favour of the plaintiff. It appears that Shiojibhai had advanced a loan of Rupees 25000/- to the plaintiff on a pro-note. Rs. 10,000/- were returned to Shiojibhai during his lifetime. On 22-11-1953 the accounts of this loan transaction were made. Rs. 13,232.25 were found due towards principal and interest on that much amount was paid and the debt was satisfied. While making the accounts the rent amount of Rs. 3194-4/-that was payable by Shiojibhai to the plaintiff was also taken into account. At the fag-end of the receipt there is a statement that all the shops which were in possession of Shiojibhai were delivered to the plaintiff by October-November (Diwali) 1958. It is true that this receipt does contain a statement about delivery of possession. However, we think that there was no physical delivery. It seems that the question arose as to how and in what capacity the two blocks should been possession of Shiojibhai and others. The parties agreed that one block should be handed over to the plaintiff. Thus there was physical delivery of possession of that block while the other block, namely, the suit premises was decided to be continued with Shiojibhai as a tenant.

7. It was further contended that the manner in which the plaintiff made accounts of the rent paid from time to time would give an indication that the plaintiff never treated Shiojibhai as the lone tenant. Much stress is laid on the payment made on 12-1-1962 under the receipt Ex. 108. It shows that the defendant paid the rent of Rs. 1200/- (for 12 months) to the plaintiff and hence a receipt in favour of the defendant was passed. But the extracts of the plaintiff's accounts (Ex. 139) show that the amount of Rs. 1200/- was credited as paid by Shiojibhai. This circumstance coupled with the above-mentioned evidence of the defendant sitting in the suit premises since the lifetime of Shiojibhai has been relied upon for the purpose about contending that the premises were held not by Shiojibhai alone and that he along with Shiojibhai and the defendant were enjoying the premises. It was also urged that the joint enjoyment continued by Shamjibhai and the defendant after Shiojibhai's death. It is in this manner that Mr. Dharmadhikari argued that the lease continued even after Shiojibhai's death and as such there was no vacancy. In addition, it was urged that there was no physical possession of the suit premises at any time.

8. Thus the position is that the defendant was sitting in the suit premises since the time of Shiojibhai's death and that there was no actual physical delivery of possession of the suit tenement! in October-November 1958. The question, however, is as to what would be the effect on the legal relationship between the parties. We have already observed that Shiojibhai and Shamjibhai were separate since 1948. Thus Shamjibhai cannot claim any interest in the property (including the leasehold property) of Shiojibhai. The defendant is the daughter's son of Shiojibhai, but it is in evidence that Shiojibhai's daughters were alive at the time of his death. The tenancy rights over the suit premises can devolve only by inheritance. The mere fact that the defendant was sitting in the shop of Shiojibhai as a close relative of Shiojibhai would not make him as a joint tenant along with Shiojibhai. It will not, therefore, be possible for the defendant to contend that after Shiojibhai's death the same old lease continued in favour of the defendant. The fact that by Diwali of 1958 the possession of the suit premises was not physically handed over to the plaintiff would not be of any use, particularly when since Nov. 1958 Shamjibhai was treated as an independent and separate tenant of the suit premises. The position has been made clear by Shamjibhai in paragraph 4 of his evidence. He has stated that as the receipt was passed in his name, he became the tenant of the plaintiff for the suit premises. The net result of the above discussion is that after the death of Shiojibhai, Shamjibhai became a separate tenant of the suit premises with effect from November 1958. For tha next two succeeding years Shamjibhai and the defendant were the joint tenants and thereafter since November 1961 the defendant became the exclusive tenant of the plaintiff.

9. There was thus a fresh letting of the suit premises in November 1958 in favour of Shamjibhai. In addition, there was another letting in November 1961 to the defendant. The fact that actual physical possession was not handed over when these fresh tenancies were created would not be of any use to the defendant. A similar point had arisen before this Court in Second Appeal No. 286 of 1962 decided on 7-1-1970 (digested at Note No. 21 in 1970 Mah LJ Notes). In that case the owner of the property sold it to another and he continued in possession in the capacity as a tenant by executing rent note. The question arose as to whether an intimation about the vacancy was required to be given when the owner changed the character of his possession as that of a tenant. This Court has held that a notional vacancy is created on account of such transaction and that a notice under clause 22 of the Rent Control Order was essential. It was further held that the tenancy created without giving such intimation is illegal and that the landlord cannot sue for ejectment on the basis of termination of a void tenancy. The question as to whether the tenancy created without giving any intimation to the Rent Controller is void or not will have to be considered in more details at a later stage. However, for the present suffice it to say that there would be a vacancy as soon as the suit premises were let out by the plaintiff to Shamjibhai in 1958 and thereafter to the defendant in 1961.

10. It is common ground that the plaintiff has not given any intimation about this vacancy as contemplated by clause 22 of the Rent Control Order. What would be the effect of the non-observance of this provision? Would the lease be void as the consideration or the object is forbidden by law, or would it be valid between the parties without affecting the rights of the Rent Controller to take necessary steps for eviction of the defendant? Mr. Dharmadhikari submitted that an omission to give an intimation under clause 22 would not make the lease void. According to him, the transaction will be quite legal so far as the parties are concerned. Mr. Bobde, however argued that such a lease would be bad in law. He relied upon the decision of this Court in Civil Revision Application No. 396 of 1959 decided on 26-9-1960 (digested at Note 27 in 1961 Nag LJ Notes). It was held in that case that a lease in contravention of the provisions of clauses 22 and 23 of the Rent Control Order was void. A similar view has been taken by this Court in Second Appeal No. 266 of 1963 decided on 11-8-1971 (digested at Note No. 64 in 1971 Mah LJ Notes).

11. Mr. Dharmadhikari, however, contended that the above decisions would not be good law in view of the recent decision of the Supreme Court in the case of Murlidhar v. State of U. P. reported in : [1975]1SCR575 . It was a case under Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. Section 7 (1) of that Act lays down that every landlord shall give a notice of vacancy within seven days after the accommodation becomes vacant. The tenant is also under a liability to give such intimation under that section. Sub-section (2) provides that the District Magistrate, by general or special order, may require a landlord to let or not to let any accommodation which is or has fallen vacant to any person. In the case before the Supreme Court the premises had fallen vacant. However, they were let out to a tenant without giving any intimation to the District Magistrate. A proceeding was taken under Section 7-A of the Act for eviction of the tenant on the ground that he was an unauthorised occupant. That section enables the District Magistrate to take action against any person who is in unauthorised occupation of the accommodation. As per the proviso to that section the District Magistrate is given a discretion not to take any action if there was undue delay or if the District Magistrate otherwise finds it inexpedient to do so. The District Magistrate in due course passed an order for eviction. The matter ultimately went to the State Government. The said order of the District Magistrate was set aside. It is this order that was challenged in the High Court by a writ petition. A single Judge of the Court quashed the order. This order was reversed in appeal and hence the matter was taken in appeal to the Supreme Court. Mr. Dharmadhikari relied upon the following observations in para 16 of the Supreme Court judgment :

'In Udhoo Dass v. Prem Prakash : AIR1964All1 a Full Bench of the Allahabad High Court took the view that a lease made in violation of the provisions of Section 7 (2) would be valid between the parties and would create the relationship of landlord and tenant between them although it might not bind the authorities concerned. In the light of this ruling -- the correctness of which we see no reason to doubt -- we think that the respondent was a tenant.'

It was contended on behalf of the appellant that the principle enunciated by the Supreme Court in the above-mentioned case will apply to the facts in the present case. It was urged that provisions of the U. P. Act and the Rent Control Order are analogous and as such a finding be recorded that a lease in favour of the defendant is valid even though no intimation of the vacancy has been given to the Collector. On the other hand, Mr. Bobde submitted that the facts as mentioned in the judgment reported in : AIR1964All1 would show that the decision was based on the particular provisions of the U. P. Act. He further contended that the provisions of the Rent Control Order are not similar to those of the U. P. Act. According to him, the various provisions of the Rent Control Order would show that the intention was to prohibit the letting of accommodation without giving intimation to the Rent Controller and without allowing the Rent Controller to pass an order of allotment as contemplated by that order.

12. It will, therefore, be necessary to note the provisions of the two enactments and then to consider as to whether there is any special feature in the Rent Control Order, so as to make it a distinguishing factor. We have already stated as to what Section 7 of the U. P. Act provides. We would, however, like to reproduce Sub-sections (1) and (2) of that section :

'7. Control of letting:-- (1) (a) Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or by the tenant' vacating it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in writing to the District Magistrate.

(b) Every tenant occupying accommodation shall within 7 days of vacation of such accommodation or ceasing to occupy it give notice thereof in writing to the District Magistrate.

(c) The notice given under Clause (a) or (b) shall contain such particulars as may be prescribed.

(2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant.

****'

Section 8 of the Act prescribes a penalty for a person who contravenes the provisions of that Act. It is this provision that has been construed in detail by the Full Bench of the Allahabad High Court in the case reported in : AIR1964All1 . It will be advisable to reproduce certain observations from that case. For example, para 6 of the judgment reads as follows:--

'Though the Act contains provisions referred to above punishing a person for letting out without permission or letting out in contravention of an order of allotment or refusing to let out in spite of an order of allotment and punishing abetment of the above acts and rendering a person liable to be evicted if he has occupied an accommodation in contravention of an allotment order or without vacancy of an accommodation having been reported, there is no provision whatsoever rendering a contract of tenancy entered into by a landlord and another person void or even illegal. If a landlord lets out an accommodation to Y when he was ordered by the District Magistrate to let it out to X or not to let it out at all, the Act makes him liable to prosecution and punishment but it does not invalidate the contract of tenancy. A person occupying an accommodation in contravention of an allotment order is liable to be evicted under Section 7-A but the contract of tenancy made by him, if any, with the landlord is not rendered invalid by anything contained in the section itself. Whether a contract of tenancy is rendered invalid or void or not depends solely upon the provisions of the T. P. Act and the Contract Act. In the present case we are not concerned with the provisions of the T. P. Act because none of them is invoked as rendering the contract of tenancy between the respondent and the landlord void.'

The material portion of para 8 reads:

'Allowing an accommodation to be used is not forbidden by any law; it is entering into a contract of tenancy in contravention of an order made under Section 7 (2) by a District Magistrate that may be said to be a forbidden act. But it is an act forbidden by a District Magistrate and not by law within the meaning of Section 23. An order made under Section 7 (2) by a District Magistrate may have the force of law but is not law. The U. P. (Temporary) Control of Rent and Eviction Act does not contain any provision prohibiting the letting out of an accommodation by a landlord; it contains no such provision as 'do not let out in contravention of an order made under Section 7 (2)' or 'do not let out in contravention of any provision contained hereunder or any order made hereunder'.'

Paragraph 14 of the judgment shows that there was nothing on record to show that the District Magistrate of Kanpur had passed before 1-2-1952 a general order prohibiting landlords from letting out accommodation without his permission. It is further observed that if no general or special order of the District Magistrate was in existence on 1-2-1952, the question of disobedience of any such order on 1-2-1952 does not arise. Mr. Bobde, after relying upon the observations in the judgment, contended that the important factor that ultimately decided the case in favour of the validity of the lease was that there was no prohibition as there was no order of the District Magistrate under Section 7 (2) against letting out an accommodation by the landlord without giving any intimation. He also submitted that the Rent Control Order has made a specific provision in that respect and that, therefore, in the present case it will not be open for the appellant to urge that the lease, though entered into without giving an intimation to the Rent Controller, is valid.

13. We think that there is much substance in the above contention of Mr, Bobde. During the arguments various provisions of the Rent Control Order were read. But, according to us, the only relevant clauses that would be decisive are clause 22, and more particularly sub-clause (2) thereof, and clause 23. It would be beneficial to reproduce the entire clause 22 which reads as follows:

'22. (1) Every landlord of a house situate in an area to which this chapter extends shall--

(a) within seven days from the date of the extension of the chapter, if the house is vacant on such date; or

(b) within seven days from the date on which the landlord becomes finally aware that the house will become vacant or available for occupation by himself or for other occupation on or about a specified date; give intimation of this fact to the Collector of the District in which the area is included or such other officer as may be specified by him, in the Form given in the Schedule appended to this Order, and shall not let or occupy the house except in accordance with Clause 23.

(2) No person shall occupy any house in respect of which this chapter applies except under an order under sub-clause (1) of Clause 23 or Clause 24 or on an assurance from the landlord that the house is being permitted to be occupied in accordance with Sub-clause (2) of Clause 23.'

This Order has been passed in exercise of the powers conferred by Section 2 of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946. Section 8 of that Act lays down a punishment for contravention of any order made under the said Act. It will be obvious from Sub-clause (2) of Clause 22 that there is a total prohibition which prevents occupation of any house unless there is an order under Clause 23 or Clause 24 or an assurance that the letting is permitted in accordance with Clause 23 (2). This clause thus lays down that there shall not be any occupation unless that occupation falls within the provisions of Clause 23 or 24. Clause 24 is not relevant for the decision of this case. It was contended by Mr. Bobde that giving effect to the lease in favour of Shamjibhai in 1958 or in favour of the present defendant in 1961 would be to permit occupation of the tenement in contravention of the provisions of the Rent Control Order. According to him, such occupation is prohibited by Clause 22 (2). He, therefore, argued that the consideration of the objects of the lease in question would be forbidden by law and as such it would not be a lawful object. Under Section 23 of the Contract Act, a consideration or object which is forbidden by law is unlawful or every agreement with such unlawful consideration or object is void. Mr. Dharmadhikari on the other hand, submitted that in spite of Clause 22 (2) a landlord would have a right to let out the property. According to him the only effect of such letting is that the Collector or the Rent Controller can ignore such letting and can take appropriate action under Clause 28. It is true that that clause empowers the Collector to take such steps and to use such force as may be necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of the order. The grant of power to the Collector in this respect, however, would not necessarily mean that the occupation of a tenant in contravention of the Rent Control Order is valid. Everything will depend upon whether the Rent Control Order has permitted such letting. We feel that Clause 22 (2) gives a sure indication that the occupation of a tenant in breach of the Rent Control Order is not permitted. It would thus be clear that the provisions of the Rent Control Order are quite different from those of the U. P. Act and as such the decision given on the construction of the relevant provisions of the U. P. Act would not be applicable while construing the separate and somewhat different provisions of the Rent Control Order. Under these circumstances, the lease in question in favour of Shamjibhai and later on in favour of the defendant is hit by Clause 22 (2) and is, therefore, void as it is forbidden by law.

14. Mr. Bobde also relied upon two more decisions of the Supreme Court. The first decision is of Jiwan Singh v. Rajendra Prasad reported in : [1975]3SCR58 . It is also a case under the U. P. Act. The Supreme Court has laid down in that case that unless a landlord gives a notice in writing about the vacancy within the time specified in Section 7, he would not be able to nominate his own tenant as contemplated by Rule 4. The other decision is of Krishna Khanna v. A. D. M., Kanpur reported in : [1975]3SCR709 . In that case it is held that a compromise between landlord and tenant in contravention of the provisions of the U. P. Act and the Rules and more particularly so as to curtail the rights of the District Magistrate is unlawful. We do not think that any of these two decisions can be of much use for the purpose of deciding the controversy between the parties. Mr. Bobde also drew our attention to the recent Full Bench decision of the Allahabad High Court in the case of Abdul Hameed v. Mohd. Ishaq reported in : AIR1975All166 , wherein the previous Full Bench decision in Udhoo Dass v. Prem Prakash : AIR1964All1 has been overruled. However, this aspect is not necessary to be considered.

15. Thus, a lease in contravention of the Rent Control Order would be void. A similar question about the unlawful sub-letting under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is considered by the Supreme Court in the case of Waman Shrinivas Kini v. Ratilal Bhagwandas & Co. reported in : AIR1959SC689 . Section 15 of that Act provided that notwithstanding anything contained in any law it shall not be lawful after the coming into operation of Act for any tenant to sub-let the whole or any part of the premises let to him. It was held that in view of this provision sub-letting would be illegal and void. We would, therefore, hold that the plaintiff is right in his contention that the lease in favour of the defendant is void as it contravenes the provisions of the Rent Control Order.

16. It was next urged that the plaintiff would be estopped from making the contention about the void nature of the lease. We have already stated that the plaintiff had filed Civil Suit No. 8 of 1965 for recovering rent and Revenue Case No. 211/71/64-65 for getting permission under the Rent Control Order to terminate the defendant's tenancy. The said two proceedings were withdrawn. It was submitted that the filing of these two proceedings would prove that the plaintiff must have consented that the leases were valid. However, we feel that filing of the proceedings would not constitute estoppel, particularly when the question is about the validity or otherwise of a lease. The question of such estoppel has been considered by the Supreme Court in the above-mentioned case of Waman Shriniwas v. Ratilal Bhagwandas & Co. We have already stated that there was a sub-letting by the tenant. In that case such sub-let-ting was made by the tenant in pursuance of the permission that was in? corporated in the agreement between the landlord and the tenant. In substance, the agreement provided that the tenant had a right to sub-let. On this basis, the contention was raised that the landlord would not be able to contend that there was an unlawful sub-letting so as to evict the tenant from the premises. The contention was rejected by the Supreme Court in the following words:

'Assuming that to be so and proceeding on the facts found in this case the plea of waiver cannot be raised because as a result of giving effect to that plea the Court would be enforcing an illegal agreement and thus contravene the statutory provisions of Section 15 based on public policy and produce the very result which the statute prohibits and makes illegal.....In the instant case the question is not merely of waiver of statutory rights enacted for the benefit of an individual but whether the Court would aid the appellant in enforcing a term of the agreement which Section 15 of the Act declares to be illegal. By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision which cannot be condoned by any conduct ot agreement of parties.'

It will, therefore, not be possible for us to accept the contention of Mr. Dharmadhikari that there is any waiver or estoppel which would prevent the plaintiff from contending that the lease in question is void.

17. It was next urged that the suit as framed is not tenable. The plaintiff has alleged that though the lease is void, still the possession of the defendant is of a permissive character and that the defendant was a licensee. A notice has been given to revoke tha licence and thereafter the suit is filed. In the alternative, the suit is based on a pleading that the defendant is in possession as a trespasser. Thus, the suit is filed on the strength of title. It was contended that a party to a void contract cannot take advantage so as to prejudice the other side. We do not find as to how the plaintiff can be said to be taking undue advantage of the void contract. In fact, he has come be-fore the Court with a statement that the defendant has obtained possession of the premises under a void contract and that that possession should be restored to the plaintiff. Such a suit is quite legal and proper, particularly when it is based on title.

18. It was next urged that the plaintiff would not be entitled to manse profits at a rate higher than the agreed rate of rent. The grievance is about the grant of mesne profits at the rate of Rs. 10/- per day from 4-1-1966 till the filing of the suit. It is true that the defendant agreed to pay Rs. 100/- per month when he entered into the contract of lease in 1961. But the plaintiff has led evidence to show the rates of rents that were available in 1966. The learned Civil Judge, after considering that evidence, came to the conclusion that a claim of Rs. 10/- per day is properly made out. The decree for mesne profits is thus quite legal.

19. It was lastly urged that an interest of Rs. 58.32 should not have been allowed on the amount of mesne profits. However, the definition of the term 'mesne profits' as given in Section 2(12) of the Civil P. C. shows that mesne profits include not only the profits as covered by the definition but also interest on such profits.

20. The result, therefore, is that the appeal fails and is dismissed with costs.

21. Appeal dismissed.


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