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Arvind Narhar Wagh Vs. Chintaman G. Khire and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 4210 of 1981
Judge
Reported inAIR1986Bom211; 1984(2)BomCR582; 1985MhLJ11
ActsConstitution of India - Article 227; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(11), 13(1), 15 and 15(1); Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1968 - Sections 15
AppellantArvind Narhar Wagh
RespondentChintaman G. Khire and ors.
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateM.V. Paranjpe,;Subodh M. Paranjpe and;M.A. Rane, Advs.
Excerpt:
a) the case questioned whether the concurrent finding of fact regarding the petitioner being lawful sub-tenant of the suit premises could be challenged under extraordinary jurisdiction of the high court under article 227 of the constitution of india - it was observed that the finding was based on the appreciation of the evidence on record - hence, it was held that the said finding could not be challenged in extraordinary jurisdiction of high court under article 227;b) the case questioned whether the sub-tenant, who was found to be under the lawful sub-tenancy, would be protected under section 15 of the bombay rents, hotel and lodging house rates control act, 1947 - two premises were under the sub-tenancy - it was found that the sub-tenancy of one premises was unlawful and hence, a decree.....order1. this writ petition under art. 227 of the constitution has been filed by the original defendant s, who claims to be the sub-tenant of the suit premises, against the judgment and decree passed by the iii extra assistant judge, pune, dt, 9th nov. 1981. the controversy involved in this writ petition lies in a very narrow compass. ganesh appaji khire, the deceased father of the plaintiff, was in possession of the suit premises on a long lease of 99 years since 1945 under as registered rent note from nilkanth balwant natu and his son balwant nilkanth natu. after the death of ganesh khire, the plaintiff inherited the tenancy right qua the suit property. shed 'a' was erected by the deceased father of the plaintiff. the father of the plaintiff had let out the open plot and shed 'a' to.....
Judgment:
ORDER

1. This writ petition under Art. 227 of the Constitution has been filed by the original defendant s, who claims to be the sub-tenant of the suit premises, against the judgment and decree passed by the III Extra Assistant Judge, Pune, dt, 9th Nov. 1981. The controversy involved in this Writ Petition lies in a very narrow compass. Ganesh Appaji Khire, the deceased father of the plaintiff, was in possession of the suit premises on a long lease of 99 years since 1945 under as registered rent note from Nilkanth Balwant Natu and his son Balwant Nilkanth Natu. After the death of Ganesh Khire, the plaintiff inherited the tenancy right qua the suit property. Shed 'A' was erected by the deceased father of the plaintiff. the father of the plaintiff had let out the open plot and shed 'A' to defendant 1 Chintaman Narayan Khole sometime in the year 1950 for carrying on the business of selling charcoal and firewoold. Initially the contractual rent was Rs. 55/- per month. This rent was subsequently increased of Rs. 65/- and in addition defendant 1 was to pay to the plaintiff the education cess. When the suit was filed, the premises 'A' together with the shed were in possession of original defendants 3 and 4 - Pahdharinath and Dnyaneshwas -= and premises 'B' with the shed were in possession of defendant 2, the present petitioner. It appears that so far as the premises 'A' are concerned, defendant 2 transferred his interest in the business together with the goodwill etc. in favour of defendants 3 and 4 under a registered document styled as a sledded. However, we are not concerned in this Writ Petition with the said premises or the assignment in favour of defendants 3 and 4. So far as defendant 2, the present petitioner is concerned, it was the case of the plaintiff that defendant 1 had created a sub-lease in favour of this defendant sometime in the year 1963. This sub-tenancy was created without his consent and, therefore, defendant No. 1 was liable to be evicted under S. 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). The plaintiff, therefore, served a notice on all the defendants and therefore filed a suit for eviction.

2. In the suit filed by the plaintiff, he had sought possession of the suit property in all on five grounds. Firstly, it was contended by the plaintiff that the induction of defendant 2, the present petitioner, in the premises 'B' by defendant 1. the head-tenant, was a transaction of unlawful subletting and, therefore, he was entitled to get possession of the suit premises under S. 13(1)(e) of the Act. So far as the other grounds are concerned, they related to defendants 3 and 4. the plaintiff had also claimed possession of the property on the ground that the defendants had erected on the suit premises without his consent in writing certain permanent structures. contention was also raised that defendant 1, the head-tenant, was also raised that defendant 1, the head-tenant, was a defaulter in payment of rent and, therefore, the plaintiff was entitled to get possession of the property under S. 12(3) of the Rent Act. It was also contended that he required the suit premises bona fide for the construction of a building for the occupation of his family.

3. The claim made by the plaintiff was resisted by all the defendants. Parties examined witnesses in support of their rival contentions. the learned Judge of the Small Cause Court negatived the plaintiffs contentions on all counts, but held in favour of the plaintiff that the assignment of tenancy rights by defendant 1 in favour of defendants 3 and 4 was unlawful and on this grounds alone the trial court passed a decree in favour of the plaintiff so far as the premises 'A' were concerned. The trial Court also granted a money decree of Rs. 247.19 in favour of the plaintiff and against defendant 1. Being aggrieved by this judgment and decree passed by the Court of Small Causes, Pune, all the parties filed appeals to the District Court. Since these appeals arose out of one and the same judgment, they were heard together and were disposed of by a common judgment dt. 9th Nov. 1981. Before the appeal Court, the claim for possession of the ground of reasonable and bona fide requirement was not pressed by the plaintiff. Before the appeal Court it was contended by the plaintiff that the transaction between original defendant 1 and defendant 2, the present petitioner, was that of leave and license and not of sub-tenancy. It was also contended that when the tenancy of the head-tenant i.e. defendant 1 is terminated, calves must go with the vow and, therefore, defendant 2, the present petitioner, is not entitled to any protection under the Rent Act and the plaintiff is also entitled to get possession of the premises in his possession. It appears that the appeal court dismissed the appeal filed by original defendants 3 and 4. The appeal Court also recorded a finding that the defendant 2, the present petitioner, was a lawful sub-tenant of the suit premises, known as premises 'B' as he was inducted in the premises with the consent of the plaintiff. However, relying upon the decision of this Court in Bijibai Saldhana v. Rama Manohar Thannu Mishra, : AIR1969Bom103 , the appeal court came to the conclusion that the petitioner is not entitled to any protection under the Rent Act and, therefore, modifying the decree passed by the trial Court, the appeal court allowed the suit qua defendant 2 also. It is this part of the decree which is challenged in this Writ Petition by the original defendant No. 2, the lawful sub-tenant.

4. Shri Abhyankar, the learned Counsel appearing for the petitioner, contended before me that once it is held that the petitioner is a lawful sub-tenant, then no decree could have been passed against him qua the premises in his possession under S. 13(1)(e) of the Rent Act. Decree is passed against the present petitioner-defendant 2 only under S. 13(1)(e) of the Act. According to Shri Abhyankar, even if it is held or assumed that S. 14 of the rent Act has no application to the case of the petitioner, still the petitioner cannot be evicted under S. 13(1)(e) of the Act since his sub-tenancy was a lawful one under S. 5(11)(aa) of the Act, he becomes a tenant of the suit premises in his own right and, therefore, enjoys the protection under the Act. After the tenancy of the head-tenant is terminated, he becomes a direct tenant of the landlord. In support of these contentions, Shri Abhyankar has placed strong reliance upon the decision of this court in Manghram Chuharmal v. B. C. Patel, : AIR1972Bom46 and Birdichand Hiralal Bhandari v. Sadashiv Maruti Borhade, : AIR1972Bom232 . Relying upon these decisions, it is contended by Shri Abhyankar that once the plea of the plaintiff that he required the suit premises reasonably and bona fide for his own occupation was rejected, no decree could have been passed under S. 13(1)(e) of the Rent Act against the lawful sub-tenant. It was also contended by Shri Abhyankar that the law laid down by the single Judge of this Court in Bijibai's case : AIR1969Bom103 is no more good law in view of the subsequent amendments to the Act as well as the decision of the Supreme Court in Mahabir Prasad v. Dr. Surinder Kaur, : [1982]3SCR607 .

5. On the other hand, it is contended by Shri Paranjape, the learned Counsel appearing for Respondent 1, that a sub-tenant can claim no protection under the Act, except under S. 14, 15 and 15A of the Rent Act. The Case of the present petitioner is not covered by any of these sections. Admittedly the sub-tenancy was created in the year 1963 and, therefore, the petitioner who claims to be a sub-tenant, cannot claim any protection under the Rent Act, and his case will be governed by the general law. Under the general law, the plaintiff has to sink or swim with the main tenant, and, therefore, since a decree is passed against the head-tenant or the main tenant, as a necessary consequence of it, decree must necessarily follow against the petitioner also. In support of this contention, Shri Paranjape has placed strong reliance upon the decision of Bal J. in Bijibai's case : AIR1969Bom103 as well as the decision of the Supreme Court in Ludhichem Agencies v. Ahmed R. V. Peer Mahamed : [1982]1SCR712 . Shri Paranjape has also challenged the finding recorded by the Courts below that the petitioner was a lawful fub-tenant. According to him, this finding in itself is perverse. All through defendant 1 and defendant 2 were contending that they were the licensees qua the suit property. The license was created in favour of the present petitioner by original defendant 1 - the head-tenant - in an unspecified property, which was also in joint possession of defendants 1 and 2 No demarcation was made by metes and bounds qua the premises 'A' and 'B'. Defendant 1 was entitled to pass and re-pass from the property, which is alleged to be in exclusive possession of the present petitioner - defendant 2. There was no partition between the two lands when the licence was not in exclusive possession of the suit premises, described as premises. 'B'. Since the present petitioner was in possession of an unspecified and undemocratic portion of land, which was also in joint possession, the Courts below committed an error in coming to the conclusion that the present petitioner was a lawful sub-tenant of the suit premises.

6. It was also contended by Shri Paranjape that after the assignment of the business in favour of defendants 3 and 4 by the original defendant 1. defendant 2 was served with a notice of assignment by the head-tenant and he was asked to pay rent to defendants 3 and 4. Therefore, defendant 2, the present petitioner, is deemed to have become a sub-tenant of defendants 3 and 4. This sub-tenant was obviously created without the consent of the plaintiff. According to him, this fresh tenancy was created in the year 1975 and that itself will provide a ground for eviction under S. 13(1)(e) of the Act. In support of this contention, he had placed reliance upon the decision of this Court in Dharamdas Nangilal Jain v. Mrs. Shrikuwar, : AIR1983Bom114 . It is not possible for me to accept this contention for more than one reason. To say the least, such a contention was not raised before the Courts below. It was nobody's case that the petitioner - defendant 2 - had become a sub-tenant of defendants 3 and 4. The mere fact that defendant 2 was asked to pay rent to defendants 3 and 4 will not make him their sub-tenant. Ultimately, the rent is payable for and on behalf no control over the head-tenant so far as the premises 'A' were concerned. Further, it cannot also be forgotten that the suit itself was filed on 13-8-1975. Further, no questions were asked to defendant 2 when he was in the witness-bozoo in this behalf. It was nobody's case that any fresh sub-tenancy was created in favour of defendant 2 by defendants 3 and 4 in the year 1975. As a matter of fact, after the filing of the suit, defendant 2 is depositing the rent in Court. In this view of the matter, it is not possible for me to entertain this contention raised by Shri Paranjape, for the first time, during the course of the arguments. It cannot be forgotten that a question regarding lawful sub-tenancy is not a pure question of law, but in any case, is a mixed question of law and fact. Even otherwise, on the material placed on record, it is not possible for me to come to the conclusion that any fresh tenancy was created in the year 1975 so far as the present petitioner is concerned.

7. So far as the contentions raised by Shri Paranjape on the merits of the controversy are concerned. I do not find any merit in the said contentions. After appreciating all the evidence on record, the learned Judge of the Small Cause Court came to the conclusion that with the consent of the plaintiff the premises were given to defendant 2 on rent. In this context the trial court has placed strong reliance upon a document Ex 59, which was signed by the plaintiff. By this document the plaintiff had given his consent to have electric connection in the premises in the possession of defendant 2 . It is an admitted position that in the year 1963 the rent of the premises was increased by ten rupees and this was done because the plaintiff had consented to the sub-tenancy in favour of defendant 2. The learned Judge also came to the conclusion that defendant 2 was in exclusive possession of the suit property and, therefore, was a lawful sub-tenant. The appeal Court after independently re-appreciating the whole evidence also came to the same conclusion. The learned Judge of the Appeal Court found that premises 'B' were in exclusive possession of defendant 2 and he was using the said premises for parking and repairing his motor vehicle. The evidence further shows that defendant 1 had not retained with him any control over the premises 'B'. The learned Judge also came to the conclusion that the initialrent of Rs. 55/- was increased to Rs. 65/- per month because of the indictmentof defendant 2 in the premises 'B'. Therefore, taking a cumulative view of the evidence brought on record, the learned Judge of the appeal Court also came to the conclusion that the sub-tenancy in favour of defendant 2 was created by defendant 1 lawfully with the consent of the plaintiff. Thus, after appreciating all the evidence on record, both the Courts below have recorded a concurrent finding of fact that the petitioner is a lawful sub-tenant of the suit premise 'B' from the year 1963. This being a concurrent finding of fact based on the appreciation of the evidence on record, the same is not open to challenge in the extraordinary jurisdiction of this Court under Art. 227 of the Constitution. Even otherwise, with the assistance of the learned Counsel appearing for both the sides. I have gone through the entire evidence on record and in my opinion, both the Courts below were right in coming to the conclusion that the sub-tenancy in favour of defendant No. s, the present petitioner, was created by defendant 1, the head-tenant, with the consent of the plaintiff and, therefore, defendant 2 is the lawful sub-tenant qua premises 'B'. Therefore, I have no hesitation in confirming the said finding of fact.

8. Now, therefore, the only question which requires consideration in this writ petitions to find out as to whether a lawful sub-tenant, whose sub-tenancy is created in the year 1963, is entitled to any protection under the Act or he will have to sink or swim with the head-tenant. It is no doubt true that a view has been taken by a single Judge of this Court in Bijibai's case, : AIR1969Bom103 that such a sub-tenant cannot get any protection under the Act since his case is not covered by S. 14 or S. 15 of the Act. This is what Bal J. observed in Bijibai's case :-

'It would be unreasonable to suppose that the Legislature intended the above results or wanted to discriminate in that manner between subletting, transfer or assignment made prior to the commencement of the Ordinance (and legalised by it) and lawful subletting, transfer or assignment made subsequent thereto. The only reasonable conclusion would, therefore, be that though the Legislature did not prohibit subletting, transfer or assignment after the ordinance if made in pursuance of an express contract, it did not intend to extend the protection of the Rent Act to sub-tenants, transferees or assignees claming under such transactions but left them to be governed by the general law. The interpretation of cl. (b) of sub-s. (11) of S. 5 of the Rent Act must be consistent with the above consideration and it must therefore be held, reject the argument of Mr. Walavalkar, that the expression 'who has derived title before the commencement of the Bombay Rents. Hotel and Lodging House Rates Control (Amendment) Ordinance 1959' occurring in the said clause qualifies the expression 'any person' and not 'his predecessor'. It follows that neither of the petitioners had acquired the status of a statutory tenant under the Rent Act.

Again, the protection afforded by the Rent Act is available to a tenant against his own landlord. In the case of a sub-tenant his landlord is the head-tenant till the interest of the latter in the premises in question is determined. The protection available to the sub-tenant till then would, therefore, be against eviction by the head-tenant. So long as the interest of the head-tenant subsists the original lessor is not his landlord and there can be no occasion for the latter to seek to evict him. This is clear from the definition of the landlord given in S. 5(3) which reads :

'5. In this Act unless there is anything repugnant to the subject or context-

(3) 'Landlord' means any person who is for the time being receiving, or entitled to received, rent in respect of any premises whether on his own account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to received the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sublet any premises.'

The original lessor would become the landlord of the sub-tenant and the protection would be available to him against the lessor only if the sub-tenant steps into the shoes of the head-tenant on the determination of his interest in the premises; but for this to happen, S. 14 prescribes a condition viz that the premises must have been sublet before the commencement of the ordinance. This condition is admittedly not satisfied in the case of either of the two petitioners. None of them was, therefore, entitled to protection under the Rent Act against eviction by the respondent when he dispossessed them on Aug. 1, 1964.'

9. However, in my opinion, much water has flown after the said decision. When Bijibai's case : AIR1969Bom103 was decided, S. 5(11) read as under :-

'5(11). 'tenant' means any person by whom or on whose account rent is payable for any premises and includes

(a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959;

(aa) any person to whom interest in premises had been transferred under the proviso to sub-sec. (1) of S. 15:

(b) any person remaining, after the determination of the leasee, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rent, Hotel and Loading House Rates Control (Amendment) Ordinance, 1959;

(c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court.'

Thereafter the said definition came to be amended. The amended definition as it stands today reads as under :-

'5. In this Act unless there is anything repugnant to the subject or context -

(11) 'tenant' means any person by whom or on whose account rent is payable for any premises and includes -

(aa) any person to whom interest in premises has been assigned or transferred as permitted, or deemed to be permitted, under S. 15:

(b) any person remaining, after the determination of the lease, in possession with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959.

(bb) such licensees as are deemed to be tenants for the purposes of this Act by section 15A:

(c) ....................................................................' From the bare reading of the amended and the unamended definition, it is quite clear that sub-cl. (aa) as unamended only covered the persons to whom interest in premises had been transferred under the proviso to sub-sec. (1) of S. 15. The words and the expression 'under the proviso to sub-sec. (1) of S. 15' were omitted by the subsequent amendment and the present definition covers a person to whom interest in premises had been assigned or transferred as permitted, or deemed to be permitted under S. 15, which means S. 15 as a whole. It was contended by Shri Paranjape that even after the amendment. cl. (aa) will only cover persons to whom interest in the premises had been transferred under the proviso to sub-sec. (1) of S. 15 of the Act, since the expression used in the amended provision is 'permitted or deemed to be permitted under S. 15.' The expression 'permit' has been used in the proviso to S. 15 only and not in the substantive part of the section and, therefore, even after the amendment, the area and the field covered by the said definition is the same. According to him, this is further clear from sub-sec. (a) of S. 5(11). According to Shri Paranjape if such an interpretation is not put on the said definition clause, sub-sec. (a) will become redundant, as both the sub-sections will cover the same area and field. It is not possible for me to accept this contention. Whenever an enactment is amended by the legislature, it is done with a specific intention. If the legislature intended to cover the same area and field even after the amendment, then amendment to S. 5(11)(aa) was wholly unnecessary. It is not an exercise in futility. By the amendment the legislature wanted to cover the whole of S. 15 of the Act and to give the status of a tenant to the person to whom interest in premises has been transferred or assigned, as permitted or deemed to be permitted under S. 15 of the Act. Section 15 reads as under :-

'15(1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein and after the date of commencement of the Bombay Rants, Hotel and Lodging House Rates Control (Amendment) Act, 1973, for any tenant to give on license the whole or part of such premises :

Provided that the State Government may by notification in the Official Gazette permit in any area the transfer of interest in premises held under such leases or class of leases or the giving on license any premises or class of premises and to such extent as may be specified in the notification.

(2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant of the tenant therein, contained in sub-sec. (1), shall, subject to the provisions of this sub-section, be deemed to have had no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which the Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a Court, any such sub-lease, assignment or transfer or any such purported sub-cease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-sec. (1), as purported sub-lessees, assignee or transferee and has continued in a possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual for all purposes, and any tenant who has sublet any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under cl. (e) of sub-sec. (1) of S. 13.

The provisions aforesaid of this sub-section shall not affect in any manner the operation of sub-sec. (1) after the commencement of the Ordinance aforementioned.'

Under S. 15(1) it has been laid down that in the absence of a contract to the contrary, a tenant is not authorised to sub-let or transfer his right or interest in the premises. But the expression used viz. 'but subject to any contract to the contrary' is pertinent, which means that by a contract to the contrary, a tenant could sub-let the premises. If such a sub-letting is authorised or consented to by the landlord, then such a sub-tenancy will be lawful. This is what has been found in the present case by both the courts below. Therefore, on the finding recorded by the courts below. which is now confirmed in this Writ Petition, it will have to be held that the petitioner is a lawful sub-tenant of the suit premises i.e. qua premises 'B'. Once this finding is recorded, then obviously the landlord cannot seek possession of the suit property under S. 13(1)(e) of the Act from a lawful sub-tenant. It appears that Bal J. in Bijibai's case : AIR1969Bom103 put a narrow construction on the provisions of the Rent Act in view of the unamended provision. In my opinion, once the definition of a 'tenant'is amended, which now includes a person to whom interest in the premises is transferred or assigned as permitted under S. 15, then it must change the whole color of the controversy. Therefore, in view of the subsequent amendment to the Rent Act, the law laid down by Bal J. in Bijibai's case is no more good law.

10. However, it was contended by Shri Paranjape that the law laid down by Bal J. in Bijibal's case : AIR1969Bom103 is approved by the Supreme Court in Ludhichem Agencies v. Ahmed R. V. Peer Mohamad, : [1982]1SCR712 . In this context, Shri Paranjape had placed strong reliance upon the following observations of the Supreme Court in para 10 of the said judgment, which read thus :-

'Mr D. V. Patel, appearing for the petitioner in Special Leave Petition No. 5632 of 1981, points out that the petitioner had been in occupation of the entire flat as a sub-tenant since 1943 and that in 1960 he had merely restricted his occupation to the portion presently occupied by him. It must be taken, he contends, that he was a lawful sub-tenant since 1943, and therefore, by virtue of sub-sec. (1) of S. 14 of the Act he must be regarded as a tenant of the landlord on the determination of Sarswatibai's tenancy. The contention has no force. The Courts below have found that the occupation of the petitioner in the premises presently in his possession must be treated as dating back to 1962 and not earlier. That being so, the benefit of sub-sec. (1) of S. 14 cannot be available to the petitioner. The benefit can be claimed by a sub-tenant to whom the premises have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959. Inasmuch as the sub-tenancy of the petitioner in the premises has been found to commence from 1962, we must hole that this petitioner also has no right to continue in possession. this Special Leave Petition must also be rejected.'

It is not possible for me to accept this contention of Shri Paranjape. It appears from the judgment of the Supreme Court that in Ludhichem Agencies case : [1982]1SCR712 the Supreme Court was dealing with a case of an unlawful sub-tenancy created in the year 1960. that was not the case of a lawful sub-tenancy. Since the Supreme Court found that the unlawful sub-tenancy was created in 1960, it came to the conclusion that the alleged sub-tenant could not claim the benefit of S. 14(1) of the Act. In this case, it is not the contention of Shri Abhyankar that the petitioner's case is covered by Section 14 of the Act. According to Shri Abhyankar, apart from S. 14, the lawful sub-tenant is entitled to the protection of the Rent Act, since on that count the tenancy of the tenantcannot be terminated under S. 13(1)(e) of the Act. I find much substance in this contention of Shri Abhyankar. It is by now well-settled that a provision of the Act which is intended to protect the tenant against unreasonable eviction must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of a provision is susceptible of two interpretations then that should be preferred which enlarges the protection of the tenant rather than that which restricts it. See Mohd. Shafi v. Additional District and Sessions Judge (VII), Allahabad and Ors., : [1977]2SCR464 . A so what similar provision came up for consideration before the Supreme Court in K. K. Krishnan v. M. K. Vijaya Raghavan : [1981]1SCR139 . This is what the Supreme Court observed in para 6 of its judgment :

'..............Quite obviously, the legislature though that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord by his act agreed to such a course. Where the landlord had himself agreed the the tenant could sublet, the question would not arise. Therefore, S. 11(4)(I) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.'

Similar view is expressed by the Supreme Court in Mahabir Prasad Verma v. Dr. Surinder Kaur, : [1982]3SCR607 . While dealing with a similar provision of the East Punjab Rent Restriction Act, this is what the Supreme Court has observed in para 25 of the Judgment :-

'The right of possession that the sub-tenants enjoy on the basis of lawful induction as sub-tenants is assured to the sub-tenants as a 'tenant' within the meaning of the Act. As a tenant in spite of the determination of his tenancy continues the right to remain in possession as a statutory tenant and enjoys the protection against eviction by virtue of the provisions contained in statute, a sub-tenant who is lawfully inducted, is also recognised by the statute to be a 'tenant' within the meaning of the Act and he must necessarily enjoy the protection against eviction afforded to a tenant by the Act. A lawful subletting on the basis of the provisions of the Act does not become unlawful merely because the contractual tenancy of the tenant comes to an end. A tenant incurs the liability to be evicted, if the tenant after the commencement of the Act sublets without the written comment of the landlord; and the written consent of the landlord must necessarily enjoy immunity from the process o f eviction on that ground. Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end. Subletting to constitutive a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sublets any portion to the sub-tenant.'

In my opinion, these observations aptly apply to the present case also once it is held that the tenancy of the head-tenant could not have been terminated under S. 13(1)(e) of the Rent Act as the sub-tenancy created in favour of the petitioner - defendant No. 2 - was a lawful line, then, in my opinion, what the landlord cannot achieve or get directly cannot be permitted to be achieved indirectly.

11. Original defendant 1, the head-tenant, has not challenged the decree passed against him and, therefore, the same has become final. However, it cannot be forgotten that the inducement of defendant No. 2 as a sub-tenant was with the consent of the landlord. low, he is the lawful sub-tenant of the landlord. He is also covered by the definition of 'tenant' and, therefore, after the termination of the tenancy of the head-tenant on the grounds personal to him and unconnected with the lawful sub-tenant or not germane for the termination of his sub-tenancy, the lawful sub-tenant will get the status of a tenant qua the landlord. Otherwise creation of lawful sub-tenancy with the consent of the landlord will have no meaning. If such an interpretation is not put upon the provisions of the Rent Act enacted to protect the tenants from unreasonable eviction the landlords can evict the lawful sub-tenants by resorting to collusive action or by getting ex parte decrees against the head-tenants. Therefore, it is also not possible for me to accept the contention of Shri Paranjape that S. 14 is the sole repository of rights of lawful sub-tenants. As a matter of fact, Section 14 was enacted to give protection even to unlawful sub-tenants or licensees. If the unlawful sub-tenants are given protection by the said provision, it is difficult to imagine that the legislature intended not to give any protection under the Rent Act to a lawful sub-tenant.

12. In the present casee, termination of the tenancy qua the premises in possession of the petitioner was sought only under S. 13(1)(e) of the Act, Admittedly, on the finding recorded by both the Courts below, no decree could have been passed in favour of the plaintiff under the said sub-section qua the premises in possession of the petitioner original sub-tenant. only because a decree is passed against the head-tenant since he has unlawfully assigned his right in favour of defendants 3 and 4 qua the premises 'A', as a necessary consequence a decree qua premises 'B', which are in lawful possession of the petitioner as the lawful sub-tenant, cannot follow. Otherwise the very purpose of enacting S. 15(1) and S. 5(11)(aa) will be frustrated. Therefore, in my opinion the appeal Court obviously committed an error in passing a decree of eviction even against the present petitioner - original defendant 2 - regarding whose premises no decree could have been passes in favour of the plaintiff under S. 13(1)(e) of the Rent Act.

13. In the view which I have taken it is not necessary to make a detailed reference to the other decision cited before me by Shri Abhyankar since the said decisions cover a wider area than the one with which I am concerned in this Writ Petition. In the result, therefore, the Writ Petition deserves to be allowed, so far as the premises in possession of the petitioner - original defendant 2 - which are described as premises 'B' are concerned. Hence the Rule is made absolute. The decree passed by the appeal Court against defendant 2, the present petitioner, qua premises 'B' is set aside and that of the trial Court is restored. However, in the circumstances of the case, there will be no order as to costs.

14. Rule made absolute.


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