1. The appellant landlord failed both before the Controller and in the first appeal before the Rent Control Tribunal to obtain an order of eviction against the respondents on the ground that the tenants Respondents 1 to 3 have sublet, assigned or otherwise parted with the possession of a part of the premises to Respondent No.4, their sub-tenant, within the meaning of proviso (b) to Section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) which runs as follows:--
'(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord'.
2. The reasons why are application for eviction was dismissed by the Controller and the dismissal was upheld by the Rent Control Tribunal in the first appeal were as follows:--
(1) The landlord was barred by constructive rest judicata from making the application for the eviction of the respondents under proviso (b) to Section 14(1) of the Act, and
(2) Respondent No.4 was in possession of a part of the premises from before 1-3-1956 when the premises were let by the landlord to the Respondents 1 to 3 and, thereforee, it could not be said that the Respondents 1 to 3 sublet, assigned or otherwise parted with the possession of apart of the premises to Respondent No.4, within the meaning of proviso (b) to Section 14(1) of the Act.
3. Hence this second appeal by the landlord under Section 39 of the Act. The landlord has challenged the correctness of both the reasons given above for the dismissal of his application for eviction of the respondents. Let us, thereforee, re-examine their correctness.
4. Constructive rest judicata:--
In 1960 the landlord had filed a petition for the eviction of Respondents 1 to 3 alone on the ground that they were using the premises contrary to a condition contained in the lease on which the land of the premises was held by the landlord within the meaning of proviso (k) to Section 14(1) of the Act. Respondent No.4 was not joined as a party to the said petition for eviction. Later the landlord applied for amendment of the application for eviction on another ground for the eviction of Respondents 1 to 3, namely, the sub-letting of a part of the premises by them to Respondent No.4. This application for amendment was however dismissed by the Controller who observed that the ground under proviso (b) was an independent one implying perhaps that a separate application for eviction could be brought there under. The application under proviso (k) was also dismissed on merits.
5. The various provisos to Section 14(1) of the Act enumerate the various grounds on which the eviction of the tenant can be sought by the landlord. The object of the eviction petition is a single one, namely, the eviction of the tenant. To achieve this single end these various grounds are available to the landlord. Each of these grounds may be said to be independent of each other insofar as each constitutes a separate cause of action. Order Ii, Rule 2 (1) Civil Procedure Code only requires that the plaintiff shall include the whole of the claim which he is entitled to make in respect of the cause of action in every suit. It does not, thereforee, seem to require that the landlord must plead in the same eviction petition all the grounds available to him under the various provisos to Section 14(1) on the date of the filing of the petition for eviction. But Explanationn Iv to Section 11 is stricter than Order Ii, Rule 2 (1) Civil Procedure Code. According to Explanationn Iv to Section 11 'any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.' The principles underlying in provisions of the Civil Procedure Code are applicable to the proceedings under the Act in view of rule 23 of the Rules made there under and Section 37(2) thereof. Moreover, the principle of rest judicata is not confined to Section 11 of the Civil Procedure Code but is of a general application. The principal of constructive rest judicata can, thereforee, apply to rent control proceedings if the conditions for its application are satisfied.
6. The first condition is that the ground of attack covered by proviso (b) to Section 14(1) must have been available to the landlord on the date on which he filed the petition for eviction in 1960. On 22-4-1947, the general attorney of the landlord signed a replication and filed it before Sub-Judge, First Class, on 26-5-1947 in a suit which he had filed against Shri C.L.Kotiya the then tenant of the premises. He had therein pleaded that Kotiya had sublet the premises to Radha Kishan Berry Respondent No.2 and to Teju Mal, Proprietor of Respondent No.4. The landlord was thus aware from 1947 onwards that Respondent No.4 was in possession of a part of the premises as a sub-tenant of the original tenant. It was for the landlord, thereforee, to show why he did not plead in the eviction petition of 1960 against Respondents 1 to 3 this ground of attack, namely, that the premises are sublet by them to Respondent No.4. The excuse given by the landlord for applying for amendment later to include this ground of attack was that he made the application for amendment when he came to know of the possession of a part of the premises by Respondent No.4. This excuse was not believable inasmuch as in 1947 the landlord was aware of the possession of Respondent No.4. The landlord was thus in the know of the existence of this ground of attack and yet failed to plead it in the eviction petition of 1960.
7. Secondly, Explanationn Iv to Section 11 Civil Procedure Code required the landlord to plead every ground of attack available to him in the eviction petition of 1960. It was immaterial whether the ground of attack covered by proviso (b) was independent of the ground of attack covered by the proviso , (k). This observation of the Controller in rejecting the application for amendment does not, thereforee, excuse the failure of the landlord to join this ground of attack in the petition for eviction in 1960.
8. Lastly, the mere fact that the landlord applied to plead the additional ground of attack by way of amendment but was unsuccessful does not prevent the application of Explanationn Iv to Section 11 Civil Procedure Code against him. In Fateh Singh v. Jagannath Baksh Singh, , also the application for amendment to plead the other available ground of attack was rejected and the suit was also dismissed on merits. It was a stronger case than the present one inasmuch as while dismissing the suit, the trial Judge expressly gave liberty to the plaintiff to bring a bring a fresh suit for possession. In the 1960 petition for eviction, the Controller did not give any such express leave to bring a fresh eviction petition. Even then the Party Council held that the second suit was barred by constructive rest judicata and pointed out that the first suit had been dismissed and had not been withdrawn under O. Xxiii Civil Procedure Code and the trial Court had, thereforee, no power to grant leave to bring a fresh suit. The ratio of the Privy Council decision fully applies to the present case. The eviction petition brought by the landlord is, thereforee, barred by the principle of rest judicata as the landlord had failed to plead the ground of attack covered by proviso (b) to Section 14(1) in the previous eviction petition of 1960.
9. The above finding is sufficient for the dismissal of this appeal. In the interest of completeness, however, I shall also consider whether on merits the landlord would have been entitled to evict Respondents 1 to 4 on the ground that Respondents 1 to 3 had sublet or parted with possession of a part of the premises to the Respondent No.4. the finding of fact is that Respondent No.4 was a sub-tenant of Mrs Kotiya who surrendered her tenancy in favor of the landlord. On this her two sub-tenants, namely, Respondents 1 to 3 and Respondent No.4 became the direct tenants of the No.4 became the direct tenants of the landlord under Section 20 of the Delhi and Ajmer Rent Control Act, 1952. Respondents 1 to 3 acted correctly, thereforee, in obtaining the lease of the premises from the landlord on 1-3-1956. But this lease was in respect of the whole of the premises. In law, Respondent No.4 had also become a direct tenant of the landlord in respect of the portion in his possession. He however, chose to become a sub-tenant of Respondents 1 to 3 and to pay rent to them. What is the effect of this conduct on the legal rights of the parties? Under Section 111 of the Transfer of Property Act, the tenancy which arose in favor of Respondent No.4 by operation of law could be determined only in one of the ways specified therein. Was it determined by implied surrender? Implied surrender may occur by relinquishment of possession.
But Respondent No.4 did not relinquish possession but continued in possession. Implied surrender may also occur by conduct of the tenant which is inconsistent with the continuance of the tenancy. The conduct of Respondent No.4 in paying rent to Respondents 1 to 3 as their sub-tenant was inconsistent with his status as a tenant of the landlord. By this conduct, Respondent No.4 impliedly surrendered the tenancy in favor of the landlord. The landlord accepted this implied surrender by treating Respondents 1 to 3 as tenants in respect of the whole of the premises. The constructive possession of the portion in the occupation of Respondent No.4 was delivered to Respondents 1 to 3 when Respondent No.4 because a sub-tenant of Respondents 1 to 3 (Konijeti Venkayya v 1957 And Pra 619
10. It is only after respondents 1 to 3 became tenants of the landlord that respondent No. 4 could become a sub-tenant of respondents 1 to 3. thereforee, in point of time, the creation of the sub-tenancy in favor of respondent No.4 by respondents 1 to 3 was after the creation of the tenancy by the landlord in favor of respondents 1 to 3. These facts bring the case within proviso (b) to Section 14(1) of the Act. The landlord would have been able to evict all the respondents 1 to 4 under proviso (b) to Section 14(1) had he not been precluded from doing so by Explanationn Iv to Section 11, Civil Procedure Code.
11. The Controller and the Tribunal do not seem to have understood the provisions of Sections 16, 17 and 18 relating to sub-tenants. They seem to have thought that respondent No.4 being a lawful sub-tenant in possession from before 1952 was not liable to be evicted by the landlord. An analysis of Sections 16, 17 and 18 shows that the legal position of the various kinds of sub-tenants is as follows:--
(1) Subletting by a tenant prior to 9th June, 1952 resulted in the premises being lawfully sublet within the meaning of Section 16(1) of the Act. Under Section 20 of the Delhi and Ajmer Rent Control Act, 1952, such a sub-tenant became a direct tenant of the landlord if the tenancy came to an end prior to the 9th of February, 1959 when the Act came into force in view of Section 18(2) of the Act if the interest of such a lawful sub-tenant was not determined when the tenancy came to an end. Respondent No.4 was a lawful sub-tenant who became a direct tenant on 1-3-1956 but chose to surrender his tenancy and became a sub-tenant of respondents 1 to 3.
(2) If a lawful sub-tenant referred to in (1) above continues as such till after the commencement of the Act then he or his tenant must give a notice to the landlord of the creation of the sub-tenancy within six months of the commencement of the Act as required by sub-section (2) of Section 17 of the Act. If the landlord contests that the premises were not lawfully sublet, the Controller has to decide the dispute under sub-section (3) of Section 17. Otherwise, after giving such a notice the lawful sub-tenant becomes the direct tenant of the landlord under Section 18(1) of the Act.
(3) After 9th June, 1952, no subtenancy could be created without obtaining the consent in writing of the landlord.
12. It is to be noted, thereforee, that the position of lawful sub-tenant in possession from before 9th June, 1952 differs according as the tenancy is determined prior to 9th February, 1959 or not. If it is determined before 9-2-1959 then such a sub-tenant becomes a direct tenant of the landlord. Otherwise he has to give a notice to the landlord of his sub-tenancy and can become a direct tenant of the landlord only after giving such a notice. Respondent No.4 became a direct tenant of the landlord but surrendered the tenancy as stated above and, thereforee, was not entitled to protection from being evicted by the landlord.
13. The appeal is, thereforee, dismissed but in the circumstances without any order as to costs.
14. Appeal dismissed.