1. The petitioner, who has been unsuccessful in the two Courts below in getting herself impleaded as a party to a proceeding pending on the file of the Munsiff, Mangalore. South Kanara, has come up with this revision under Sec. 115 of the Code of Civil Procedure. The proceeding (H.R.C.No.66/71 pending on the file of the Munsiff) is one started by the first respondent against the other respondents herein claiming possession of a premises under clauses (a), (b), (c), (f), (h) and (p) of sub-section 91) of Section 21 of the Karnataka Rent Control Act, 1961 (the Act). It may be noted that Clause (f) provides for the eviction of a tenant unlawfully subletting the whole or part of the premises. In so far as this part of the claim is concerned, the allegation made in the petition by the landlord is that the premises had been unlawfully sublet by the tenants in favour of this petitioner.
2. Since, this petitioner is not a party to the proceeding, she filed I.A. IV under Section 22 of the Act read with O. 1, R.10 (2), C.P.C. requesting the Court to permit her to come on record as a party-respondent, contending, inter alia, that the sub-lease in her favour was not unlawful, it having been created prior to the commencement of the Act; that even if the lease in favour of the main tenants is determined for any reason she is entitled to continue in their place as a tenant as provided under S.22 of the Act; that, in the circumstances, she is entitled to contest the application; and that she, being a proper and necessary party, may be permitted to come on record. The Munsiff rejected this application.
3. She went up in revision before the District Judge, Mangalore, in C.R.P. No.33/77. By his order dated 28-3-1977 the learned District Judge has confirmed the order of the Munsiff. The District Judge in this connection mainly places reliance on an unreported decision of this Court in Vasu Sapaliga v. J.M. Lobo (C.R.P.No. 1533 of 1976 decided on 3-9-1976). In that case the facts were ;
One J.M. Lobo had filed a suit for eviction of a certain Kudupa Sapaliga alleging that he was his tenant in respect of the premises involved in the said suit and was liable to be evicted for the reasons stated in the suit. During the pendency of that suit Vasu Sapaliga made an application to get himself impleaded as a party-respondent alleging that it was he who was in occupation of the premises for over 15 years as a tenant and therefore he should be permitted to come on record and resist the claim. On the 1st Additional Munsiff, Mangalore, rejecting that application, Vasu Sapaliga approached this Court under S. 115, C.P.C. The learned single Judge, observing as follows, dismissed that petition :
'It is open to the petitioner to resist delivery of possession in accordance with law when a decree which is not binding on him is used to dispossess him.
His objections if any will have to be considered by the Court at the appropriate time after giving notice to the other party.
The petitioner cannot, however, be made a party to the suit.
There is no ground to interfere with the order of the Court below.
Petition is dismissed.'
4. Facts of the instant case are some what different. One of the grounds urged here for eviction of the main tenants is that there was an unlawful subletting of the premises in favour of the petitioner. If that is held proved not merely the lease in favour of the main tenants will be terminated but the sub-lessee in occupation would also be liable for eviction. That she is in possession of the premises as a sub-lessee is a fact admitted by the petitioner, and the contention of respondent-1 is that the subletting is unlawful or contrary to law. According to the petitioner, as already stated, the sub-lease was a valid one the same having come into existence prior to the coming into force of the Act. The contentions raised by the sub-lessee are required to be taken note of in the light of Sec. 22 of the Act. That section reads as follows :
'22. Sub-tenant to become tenant on determination of tenancy - Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any party thereof has been lawfully sublet before the coming into operation of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.
Subject to any contract to the contrary subletting is prohibited under S.23 of the Act. Section 30 binds all persons in occupation of the premises, except those who have an independent title thereto, to the order made by the Court in favour of the landlord permitting him to recover possession of the same.
5. Clause (f) of sub-section (1) of S.21 provides thus :
'21, Protection of tenants against eviction. - 91) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant :
Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds, namely -
(a) to (e) ............. ......... ........... ..............
(f) that the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of subletting, assignment or transfer to which the provisions of Sec.61 are applicable), such subletting, assignment or transfer has been made contrary to any provision of law then in force.'
Under clause (f) the landlord is entitled to recover possession only if the sub-lease had been created contrary to law.
6. The learned counsel for the contesting respondent, while supporting the orders of the Courts below, apart from relying on Vasu Sapaliga's case (supra) also places reliance on a decision of the Supreme Court in Rupchand Gupta v. Raghu Vanshi (Private) Ltd. : 7SCR760 . On the other hand, counsel for the petitioner contends that these decisions were distinguishable from the facts of this case and that his client, being either a necessary or a proper party, should not be shut-out from contesting the claim in question. Doing so, according to him, would amount to condemning his client without hearing her.
7. In Rupchand Gupta's case the subject matter of dispute was a piece of agricultural land. Without going into other details it may be stated that in that case, in the law governing the lease involved therein, there does not appear to have been any provision similar to Sec.22 of the Act. On the termination of the lease of the main tenant, ipso facto, the sub-lease also was liable to be evicted. In that context the Supreme Court observed that 'the decree obtained against the main tenant in such a case would bind the sub-lessee also'.
8. There is a later decision of the Supreme Court in which eviction sought for was under a Rent Control Law, it being, the Delhi Rent Control Act, 1958. In that case i.e., South Asia Industries Pvt. Ltd. v. S. Sarup Singh : 3SCR829 , the facts were :
'Sarup Singh and others were tenants of a premises in Connaught Circus, New Delhi. The premises had been let-out to a Company called Allen Berry and Co. (Calcutta) Ltd., Allen Berry & Co., had transferred the lease in favour of South Asia Industries Private Ltd. The landlords, seeking eviction of Allen Berry & Co., on the ground that they had transferred the lease without their consent, had filed an application under Clause (b) of S. 14(1) of the Delhi Rent Control Act, 1958, not merely making Allen Berry & Co., but also the transferee, South Asia Industries (P.) Ltd., as parties to the proceeding. During the pendency of that application for eviction Allen Berry & Co., went into liquidation and, therefore, its name was struck off. The Rent Controller proceeded with the application and granted a decree in favour of the landlords permitting them to recover possession from South Asia Industries (P.) Ltd. In the Supreme Court, to which Court the matter had ultimately reached, South Asia Industries (P.) Ltd., had taken up the plea that the law provided for eviction of the tenant for unlawfully subletting the premises and that since the main tenant was no more on record that ground was not available for the landlords to evict them.'
9. While examining the rival contentions centered around the contention of the appellant herein certain observations have been made by one of the learned Judges, Sarkar, J., at para 9 which have a considerable bearing on the case on hand. That para reads as follows :
'I am not unmindful of the fact that where an order for recovery of possession of any premises is made under Section 14 against a tenant assigning or subletting without the landlord's consent, that order would under S.25 of the Act be binding on all persons in occupation of the premises except those who have independent title to them. This section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made. It would not, therefore, support an argument that it was not intended that an order for recovery of possession could be made under S. 14 against an assignee or a sub-tenant. On the other hand, it seems to me that to an application under Clause (b) of the provision to sub-section (1) of S. 14 an assignee or sub-tenant, as the case may be should be a proper party. Under this provision an ejectment order can be made only when the assignment or subletting was without the consent of the landlord. 'If it was with such consent, the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings. Otherwise, if under Sec.25 an eviction order obtained against the direct tenant is binding on them, they view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence; he may even collude with the landlord or he may just not bother. If the assignee or the sub-tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason for saying that an order for eviction could be made against them also; if they could oppose the making of the order, it would be unnatural to say that the order could not be made against them. In what I have said in this paragraph, I don not wish to be understood as holding that in view of S.25 an order for eviction against a tenant is in fact binding on his assignee or sub-tenant. Such a decision is not necessary for this case. I wish, however, to point out that if S.25 does not make the ejectment order so binding, the appellant cannot resort to it for any assistance.'
The other learned Judge, Bachawat, J., while agreeing with Sarkar, J., that the appeal should be dismissed, also observes at para 22 of the judgment that 'both the tenant and the assignee were properly parties to the proceedings for possession .......... ............ .............'
10. Having examined the contentions raised by the petitioner's counsel in the light of the above observations made in South Asia Industries' case : 3SCR829 (supra) and, in particular, the observations of Sarkar, J., I am of the view that, in the circumstances of this case, the Courts below have not properly exercised their discretion in the matter. I may say that both the Courts below did not apply themselves properly to the facts and circumstances of the case. The petitioner being interested in showing that the subletting was a valid one the Courts below should not have rejected her claim to come on record and contest the claim.
11. For the reasons aforesaid this revision is allowed. The orders of both the Courts below on I.A.IV filed in the Court of the Munsiff, Mangalore, South Kanara are hereby set aside. I.A.IV allowed. The petitioner in H.R.C. No.66 of 1971 (A. Rama Amin) is directed to implead Smt. Yamuna, the applicant of I.A.IV, as the 6th respondent to the petition in H.R.C. No.66/71. The 6th respondent shall be served with copies of the petition and the connected papers by the petitioner. The Munsiff will permit the 6th respondent to file her objection statement and contest the claim. He will proceed with the enquiry in accordance with law. He will dispose of the main matter within six months from to-day.
12. Parties are directed to bear their own costs.
13. Revision allowed.