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Raja Ram Goyal Vs. Ashok Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 65 of 1974
Judge
Reported in12(1976)DLT34a; 1976RLR41
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantRaja Ram Goyal
RespondentAshok Kumar and ors.
Advocates: T.C.P. Lal,; Sultan Singh and; Arun Mohan, Advs
Cases Referred(see Anand Nivas Private Ltd. v. Anandji Kalyanji
Excerpt:
tenancy - subletting - section 14 (1) of delhi rent control act, 1958 - tenant entitled to sublet with consent in writing of landlord would mean contractual tenant alone and not statutory tenant - statutory tenant has no interest or estate occupied by him - legislature without making express provision to that effect intended to invest statutory tenant with power to induct into premises in his occupation person to be entitled to claim right and interest of contractual tenant - appellant who was statutory tenant had no right to sublet premises after expiry of period of contractual tenancy as stipulated in rent note - appeal accordingly liable to be dismissed. - - consent is an act of reason, accompanied with deliberations, the mind weighing, as in a balance, the good and evil on each.....s.s. chadha, j.(1) this second appeal, filed by shri raja ram goyal tenant, is directed against the order dated january 11, 1974, of the rent control tribunal, delhi, affirming the finding and order of the additional rent controller, delhi, passing an order in favor of the respondents-landlords for ejectment of the appellant from premises no. 2218 masjid khajoor, delhi (hereinafter referred to as the premises in dispute) on account of unlawful sub-letting under section 14(l)(b) of the delhi rent control act, 1958 (hereinafter referred to as the act).(2) on june 9, 1970, the respondents brought the petition for eviction, out of which this second appeal has arisen, under section 14 of the act on the ground of sub-letting, assigning and parting with the possession without obtaining the.....
Judgment:

S.S. Chadha, J.

(1) This second appeal, filed by Shri Raja Ram Goyal tenant, is directed against the order dated January 11, 1974, of the Rent Control Tribunal, Delhi, affirming the finding and order of the Additional Rent Controller, Delhi, passing an order in favor of the respondents-landlords for ejectment of the appellant from premises No. 2218 Masjid Khajoor, Delhi (hereinafter referred to as the Premises in dispute) on account of unlawful sub-letting under section 14(l)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act).

(2) On June 9, 1970, the respondents brought the petition for eviction, out of which this second appeal has arisen, under section 14 of the Act on the ground of sub-letting, assigning and parting with the possession without obtaining the written consent of the landlords after June 9, 1952. In para 16 of the petition, it was stated that the sub-tenants, namely, Shri Hans Raj and Shri Ram Bakhsh have been inducted by the tenant without the written consent of the landlord during the years 1963-64. It was further averred that the rent-note executed by the tenant in favor of Smt. Shanti Devi, the then owner of the premises in dispute, did not amount to a written consent in law and if it did, it was only for a period of 11 months, i.e., the duration of the rent-note. In the written statement dated August 11, 1970 filed by the tenant, it was admitted that Shri Hans Raj and Shri Ram Bakhsh are the sub-tenants in different portions of the premises in dispute, but it was pleaded that they are lawful sub-tenants. It was further pleaded that the respondents are bound by the terms and conditions of the tenancy as mentioned in rent-note dated February 12, 1961, according to which the tenant has the right to sub-let any portion or whole of the premises to anybody.

(3) Shri V.S. Aggarwal, Additional Rent Controller, Delhi, who tried the petition, by his order dated March 20, 1973, granted the petition for eviction 'under section 14(1)(b) of the Act. The Additional Rent Controller held that Ex. A-6 is the copy of the order of the permission granted by the Competent Authority (Slum), that the tenancy stood validly determined, that the term contained in the rent-note regarding the sub-letting did not amount to the consent in writing of the landlord and that in any case .the said authority became ineffective after the expiry of Ii months, i.e., the period for which the tenancy had been granted under rent note Ex. A-7. In the appeal against the aforesaid order dated March 20, 1973, the above findings were affirmed by Shri Gian Chand Jain, Rent Control Tribunal vide order dated 11-1-1974, which order is now in second appeal before me.

(4) The facts of the case established on record are that the premises in dispute were let out with effect from January 1, 1961 by late Smt. Shanti Devi, the predecessor-in-interest of the respondents, to the appellant under rent-note Ex.A-7. executed by the appellant alone on February 12, 1961. One of the terms of the rent-note is that the executant is empowered to sub-let the house in question io any body. Shri Harnam Dass, one of the respondents, who appeared as his own witness, had stated that the rent-note was executed in his presence, that he was present when the disputed premises were given on rent to the appellant, that the contents of Ex. A-7 were read over to his wife and she admitted them as correct, that the terms of the tenancy were settled in his presence, that no permission or power was given orally or separately for sub-letting and that whatever authority was given is contained in Ex. A-7. It is admitted by the appellant in the affidavit in reply to the interrogatories served on him that he had sublet the rooms situate on the ground floor of the property in dispute to Shri Hans Raj in the year 1963, that he had sub-let one room on the top floor to Shri Ram Bakhsh in the year 1964, but further stated that he had a right to sub-let the same according to the terms and conditions mentioned in the rent-note.

(5) The material facts on which the decision of this appeal depends are thus not disputed before me. The main question before me is whether the sub-letting, in favor of Shri Hans Raj in the year 1963 and Shri Ram Bakhsh in the year 1964, is with the consent in writing of the landlord or not. The other question argued before me by the appellant is that the contract of tenancy was not for 11 months but for an idefinite period on a true construction of the rent-note Ex. A-7 and as such the terms of tenancy including the constent in writing of the landlady given to the appellant for sub-letting the premises continued till the determination of contractual tenancy by notice to quite dated April 24, 1970, Ex. A-2, which terminated the tenancy by May 31, 1970. A subsidiary argument addressed by the counsel for the appellant is, assuming for the sake of agruments that the contractual tenancy expired by efflux of time of 11 months, even then the terms of statutory tenancy are the same as that of the contractual tenancy and that the consent in writing of the landlady, given to the tenant in rent-note Ex. A-7, would also apply to the creation of the two subtenancies by the statutory tenant in the years 1963 and 1964. The crucial point in all these submissions centres round the decision on the question, whether one of the terms, contained in the rent-note executed by the tenant, to the effect that the executant is empowered to sub-let the house in question to anybody, which rent-note was orally accepted by the landlady, can amount to a constent in writing of the landlady within the meaning of Section 14(1)(b) of the Act.

(6) Deshpande, J. had an occasion to consider this question in M/s. Ambey Pershad Ram Nath v. Messers Devki Nandan and Sons (S.A.O. No. 481 of 1968 decided on April 30, 1969) in similar circumstances, whether the consent in writing of the landlord was obtained by the tenant to the sub-letting within the meaning of provio (b) to sub-section 1 of section 14 of the Act. The finding in that case was that when a rent-note was executed by the tenant, the terms of the rent-note could only be 'that the tenant should have the right to sub-let the premises i e. there was an offer by the tenant to take up the premises on lease with the right of subletting and the offer was accepted by the landlord orally', Deshpande, J. held: 'Under proviso (e) to sub-section (1) of S. 13 of the Delhi and Ajmer Rent Control Act, 1952 which preceded the present Act, it was sufficient for the tenant to obtain the consent of the landlord to legalise the subletting the premises. It was then not necessary that such consent should have been in writing. In proviso (b) tosub-Section(l)of S. 14 of the present Act, however, a deliberate change has been made by the Legislature in this respect in requiring that henceforth the consent of the landlord must be in writing. The reason for this change is not far to seek Experience had shown that false pleas used to be set up by tenants to make profit by subletting the premises and to justify the sub-letting by fair means or foul. Perjury could not be ruled out when the tenants ostensibly tried to prove that the landlord had consented to the sub-letting. This was apparently regarded as an un-satisfactory state of affairs by the Legislature. It was to remedy the situation that the provisions of proviso (b) to sub-section (1) of S. 14 were made stricter by the insistence that the consent must be in writing. In considering the word 'consent in writing' thereforee, regard has to be paid to the reason for the Legislative change and an attempt has been made to effectuate the new legislative policy. It is in this background that we have to consider the words : 'consent in writing' The Legislature apparently intended that it is the consent itself which must be in writing. By consent is understood an act of the landlord. It is for the landlord to say that he permits the tenant to sub-let the premises or he consents to or accepts the offer of the tenant to take the premises on lease with the right of sub-letting. If the emphasis is placed on the consent : 'in writing' It would appear that is the consent of the landlord which must be in writing. As the landlord is not a party to a rent note, it would appear that the landlord's consent can never be embodied in the rent- note. For whatever is said by the rent-note in writing, could be attributable only to the tenant who signs the rent-note. The consent of the landlord thereforee, cannot be in writing when he does not execute the rent-note. The expression 'consent in writing' used in proviso (b) to subsection (1) of section 14 is, however, used with a different purpose as stated above. The emphasis is that it is the consent of the landlord, which must be in writing. It cannot, thereforee, be construed loosely with a view to vittle down the emphasis on the authorship of the consent being that of the landlord. Such authorship may be proved either by the writing being in the band of the landlord or being signed by the landlord. It is not necessary for the purpose of this case to decide whether the authorship of the consent of the landlord in writing can be proved in some other way. It is sufficient for the purpose of this case to observe that a mere written offer by the tenant by way of rent-note, which was accepted orally by the landlord cannot amount to a consent in writing of the landlord.'

(7) Mr. Lal, counsel for the appellant contends that Deshpande J. has himself clarified the position in a subsequent decision that the consent may be express or implied and that it was not necessary for the landlord to say in so many words that they consented to the sub-tenancy. According to him, when the facts of the present case were brought to the notice of Deshpande J. on March 1, 1974, his Lordship admitted this appeal and recorded in the admission order :

'ADMITTEDin view of : AIR1973Delhi9 . The dispossession is stayed till further orders. Exemption application is granted. .'

(8) Mr. T.C.B.M. Lal further contends that the meaning of the words consent in writing of the landlord' in section 14(l)(b) of the Act is the same as the meaning of the word 'written agreement' in section 2(b) of the Arbitration Act'. The words 'in writing' in section 14(l)(b) of the Act and 'written' in section 2(a) of the Arbitration Act should be construed to mean that it has to be in writing and not that it means 'signed by the parties'. The writing is contained in the rent-note executed by the tenant and the term permitting the sub-letting has been accepted by the landlady. According to him, the consent of sub-letting is thus in writing, the consent flowing from the landlady by her oral acceptance of the terms. The counsel made a detailed reference to the latter judgment of Deshpande J., (Jagan Nath v. Abdal Aziz and others), : AIR1973Delhi9 . I have carefully gone through this judgment of Deshpande J. The facts of the case are, that on December 31, 1954 the counsel for the tenants stated as follows:

'THEtenants would be paying rent at Rs. 166.00 per month. The disputed premises were in the occupation of Daulat Ram Dogal Mal and Jagan Nath as sub-tenants and Neb Raj as tenant. The tenants undertook not to bring into the premises any new sub-tenants either in place of the present ones or otherwise.'

(9) Counsel for the landlord stated that he accepted the above statement of the counsel for the tenants. On these facts Deshpande J. held: -

'THEmeaning of the words 'in writing' would appear to be the same as the meaning of the word 'written' in section 2(a) of the Arbitration Act which defines an arbitration agreement to mean 'a written agreement' etc. In construing the latter, the Supreme Court has held that 'written' does not mean 'signed' by the parties, it does not also mean that a formal document was executed by the parties (Jugal Kishore Rameshwar das v. M/s. Goolbai Hormuaji, : [1955]2SCR857 and Union of India v. A.L. Rallia Ram, : [1964]3SCR164 . It is sufficient if the agreement between the parties is actually available in writing so that it can be read. In the present case, the statements of the counsel of the tenants and the landlords were recorded by the appellate court and formed the basis of the consent decree. The statements, thereforee, amounted to 'writing'. When the tenant asserted that Jagan Nath and another were their sub-tenants and that they lived in the house Along with Neb Raj, the tenant, it was open to the landlord to deny to give their consent in writing to the sub-tenancy. But the landlord accepted the statement of the counsel of the tenants implying their consent to the sub-tenancy.'

(10) Thus on facts in that case there was a consent in writing of the landlord in the statement made by the counsel for the landlord on 31-12-1954. This statement was held as amounting to 'writing'. I am not prepared to assume that Deshpande J. was not aware of the earlier judgment or had changed the view of 'consent in writing', even though his Lordship recorded in the admission order that the present appeal is 'admitted in view of : AIR1973Delhi9 '. Even in Jagun Nath's case, it is re-affirmed that the consent may be express or implied ; either would be sufficient provided that it is in writing. It was further held that it was not necessary for the landlord to say in so many words that they consented to the sub-tenancy ; their acceptance of the statement of the counsel for the tenants was sufficient as such consent. Thus, there was a 'consent' in writing of the landlord through the counsel, recorded in the statement made on December 31, 1954. There is no conflict in the judgment of Deshpande J. in M/s. Ambey Pershad Ram Nath v. M/s. Deoki vandan & Sons and the case of Jagan Nath v. Abdul Aziz and others, as the latter proceeds on the facts when it was found that there was a written consent in the statement of the counsel for the landlord recorded in the proceedings before the first appellate court.

(11) Mr. T.C.B.M. Lal, then contended that the view taken by Deshpande J. in M/s. Ambey Prashad Ram Nath needs reconsideration. I told Mr. T.C.B.M. Lal that I would follow the reasoning and view of Deshpande J, unless he could pursuade me to take a different view; in that case I would place the matter before my Lord the Chief Justice.

(12) This taxes me to the submission of Mr. T.C.B.M. Lal on merits of the case and on merits of the view taken by Deshpande, J. in M/s. Ambey Parshad Ram Nath v. M/s. Deoki Nandan & Sons' S.A.O. No. 481 of 1968). The argument of Mr. Lal in that in the present case the clause in the rent-note Ex. A-7, executed by the tenant is that the executant is empowered to sub-let the house in question to anybody. He urges that if the landlady has allowed the tenant to honestly and reasonably believe that she has consented to or accepted the offer made to her, she would be bound by her apparent acceptance. According to him, the evidence in the case is that the contents of Ex. A-7 were read over to the landlady and she admitted them as correct. The landlady and the tenant thus consented, when they agreed upon the same thing in the same sense, in other words, the tenant claiming a power to sub-let the house in question to anybody and the landlady gave her consent to it. Thus he submits that this is sufficient to meet the requirements of 'consent in writing of the landlord' as provided in section 14(l)(b) of the Act.

(13) Let me first examine the meaning of each word 'consent in writing' of the landlord contained in section 14(l)(b) of the Act. Consent is an act of reason, accompanied with deliberations, the mind weighing, as in a balance, the good and evil on each side. Consent supposes three things namely, a physical power, a mental power and a free and serious use of it. The consent may be express or implied; it may be apparent or spelled out of the document. No particular or technical form of words are required by law or need be adopted to give its effect i.e. 'consent'. If the intention of the person can be collected from the words used, in my opinion, it is sufficient. Then the 'consent in writing' means that there has to be a written document from which the consent to the creation of the sub-tenancy, assignment or parting with possession can be ascertained with certainty. In writing, only requires it to be reduced into writing. The writing of the landlord may be in handwriting of the landlord or at his instance or on his behalf or in writing signed by the landlord, consenting to the sub-letting. The requirement of the law is that not only the consent must be of the landlord, but it must also be incorporated in the writing of the landlord. I am not suggesting, however, that it must be in the handwriting of the landlord or signed by him, for that is not the requirement of the law. It would be sufficient if the writing flows from the landlord or is attributable to him, but it must be the consent of the landlord and the consent must be in writing.

(14) Under various Acts, certain agreements, acknowledgments, payments or promises etc. must be reduced into writing and signed by the parties or their agents to be charged thereon. Various Acts of Parliament have rendered writings and signatures indispensable to the validity of particular promises. For example, under Section 18 of the Limitation Act, 1963, the effect of acknowledgment of liability, for starting a fresh period of limitation, has been prescribed, but the acknowledgment has to be made in writing, signed by the party or by any person through whom he derives his title or liability. Similarly, under Section 18 of the Limitation Act, 1963 the effect of payment on account of debt or of interest on legacy, as starting a fresh period of limitation has been prescribed, but under the proviso, an acknowledgment of the payment has to appear in the handwriting or in a writing signed by the person making the payment. Thus the acknowledgment or payment has got to be proved in a particular way and for reasons of policy, the Legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, thereforee, there is acknowledgment in the required form, the payment by itself is of no avail. Under Section 53- A of the Transfer of Property Act, 1882 the contract to which this section applies, must be in writing signed by the transfer or on his behalf. Here again, the contract has to be in writing signed by or on behalf of the transferor. An oral contract is of no avail. Then again under section 19 of the Copy right Act, 1957, no assignment of the copy right in any work is valid unless it is in writing signed by the assignee or by his duly authorised agent. Thus, it requires the assignment in writing signed by the owner of the right, in respect of which the assignment is made or by his duly authorised agent. The Legislature, however, under Section 14(l)(b) of the Act, has not provided the requirement of the signatures of the landlord, but the requirement is only in writing of the landlord. The absence of signatures of the landlord or on his behalf under Section 14(l)(b) clearly shows the intention of the Legislature that the consent need not be signed by the landlord, but it must be incorporated in a writing of the landlord. Thus for reasons of Policy, the Legislature has insisted in a writing of the landlord as the only proof of consent.

(15) The question then for consideration is whether the formality of writing of the landlord prescribed in section 14(l)(b) is merely as necessary evidence of the consent to which it refers, and not an essential or constituent part of the consent, or is such as to exclude the oral acceptance of the written offer of consent. It may be necessary to trace a little history of the Legislation. The first piece of Legislation was the New Delhi House Rent Control Order, 1939 which extended to the Municipality of the New Delhi, and to the Notified Area of the Civil Station, Delhi. The tenants were given protection from eviction, but a tenant could be evicted if the Controller was satisfied, inter alia, that the tenant has, without the consent of the landlord, sub-let the entire house. The Delhi and Ajmer-Merwara Rent Control Act, 1947 gave protection to the tenants but similarly provided the eviction of tenants, inter alia, on the ground that the tenant without the consent of the landlord, has whether before or after the commencement of the Act assigned, sub-let or otherwise parted with the possession of the whole of the premises or that the tenant without the consent of the landlord, has after commencement of the Act, sub-let any part of the premises. This was followed by the Delhi & Ajmer Rent Control Act, 1952, where a similar provision was made, that the tenant was liable to eviction if the court was satisfied inter alia, that the tenant without obtaining consent of the landlord in writing has, after the commencement of the Act, sub-let, assigned or otherwise parted with the possession of, the whole or any part of the premises, or that the recant, without obtaining the consent of the landlord, has before the commencement of the Act sub-let, assigned or otherwise parted with the possession of, the whole or any part of the premises. The Legislature must have been aware of the experience of the problems before courts about the difficulty in ascertaining whether the sub-tenancy was created with the consent of the landlord or not. Unscrupulous tenants pleaded the creation of sub-tenancy on oral consent, even in cases where there was no such consent. The Legislature, thereforee, while enacting the provisions of 1958 Act, made a conscious departure from the previous enactments and laid down the requirement in section 14(l)(b) that the consent of subletting must be in writing of the landlord. At the same time, the Legislature in section 16 of the Act provided that where at any time before June 9, 1952, a tenant has sub-let the whole or any part of the premises and the sub-tenant is, at the commencement of the Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sub-let. All the sub-tenancies thus created before 9th June 1952, whether with oral or written consent or even without the consent of the landlord, were made lawful sub-tenancies. The Legislature pointed out in section 16(2) of the Act, that no premises which have been sub-let either in whole or in part on or after 9th of June 1952, without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let. The legislature, thereforee, clearly expressed its intention to exclude the creation of further sub-tenancies based on oral consent of the landlord. If the sub-tenancy was created without obtaining the consent in writing of the landlord, then under proviso 14(l)(b) of the Act, the tenant is liable to eviction. The Legislature by enacting the Rent Control Legislation has made certain in-roads in the rights of the landlords, but at the same time provided certain safeguards to the landlords. A tenant is protected from eviction under section 14(1) of the Act, but the proviso further lays down that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of the premises on one or more of the grounds, inter alia, that the tenant hag, on or after 9th day of June 1952, sub-let assigned or otherwise parted with the possesssion of the whole or any part of the premises without obtaining the consent in writing of the landlord. Thus there is no right to a tenant to sub-let, assign or part with the possession of the premises, except by a written consent of the landlord. The requirement of the written consent of the landlord is of great significance, in view of the provisions of sections 17 and 18 of the Rent Control Act. Where an order for eviction in respect of any premises is made under section 14 of the Act, against a tenant but not against a sub-tenant referred to in section 17, then with effect from the date of the order, such a sub-tenant who had given notice under section 17 of the Act, is to be deemed to have become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenant had continued. Thus a lawful subtenant is made a direct tenant by operation of law. If that was the intention of the Legislature, then the strict interpretation has to be given to the meaning of the words 'in writing of the landlord' contained in sections 14(l)(b) and 16(2) of the Act.

(16) Viewed in the light of a conscious departure by the Legislature in enacting the provisions of section 14(l)(b) of the Act and the serious consequences flowing from the creation of lawful sub-tenancy, the Legislative intention, in my opinion, is that the tenant has no right to sub-let, assign or part with the possession of the whole or any part of the premises and the only tenant who can create lawful sub-tenancy is to whom the landlord has given his consent in writing. I would be un-doing the beneficial provision of the Act if I were to hold that an oral consent of the landlord is sufficient. The whole object of the Legislature in modifying the provisions of the 1952 Act so far as consent is concerned, would be frustrated if the oral consent of the landlord on the writing of the tenant is given the meaning of 'consent in writing of the landlord' as given under section 14(l)(b). The rent-note executed by the tenant is only an offer for the acceptance of the landlord. The landlord can accept it orally or in writing. If he consents orally, it does not meet the requirement of section 14(l)(b). In this case, on facts, as established on the record, the consent of the landlady is, admittedly, oral. Such a consent can be of no avail to the tenant in creation of sub-tenancy in favor of Shri Hans Raj in the year 1963 and Shri Ram Bakhsh in the year 1964.

(17) Another aspect of the argument of Mr.T.C.B.M.Lal is based on the judgments of the East Punjab High Court and the Supreme Court on the interpretation of section 2(a) of the Arbitration Act, 1940 as to the meaning given to 'written agreement'. According to him, section 2(a) of the Arbitration Act 1940, speaks of an agreement in writing, that it only means that the terms of the agreement should be expressed in writing, that the agreement should be such that it binds both the parties and that the actual signatures of both the parties on the agreement are not essential. Mahajan J, in Firm Mangal Chand Bhanawari Lal v. Firm Pyare Lai, held :

'THEagreement may be in the form of a signed document by both the parties containing all the terms or a signed document by one party containing the terms and a plain acceptance, signed or orally accepted by other party, or it may be an unsigned document containing the terms of a submission to arbitration agreed to orally by both the parties. It is sufficient if one party signs the submission and the other accepts it. The acceptance may be by word of mouth or may be by conduct.'

In Jugal Kishore Rameshwardas v. Mrs. Goolbai A.I.R. 1952 S.C. 812 relied upon by counsel for the appellant, the Supreme Court held :-

'IT is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.'

To the same effect, is the decision of the Supreme Court in Union of India v. A.L. Rallia Ram, and it was held :

'Awriting incorporating a valid agreement to submit differences to arbitration is thereforee requisite ; it is however not a condition of an effective arbitration agreement that it must be incorporated in a formal agreement executed by both the parties thereto nor is it required to be signed by the parties. There must be an agreement to submit present or future differences to arbitration. This agreement must be in writing and must be accepted by the parties.'

Relying on the above authorities, the counsel for the appellant contends that the consent need not be signed by the landlord, and need not necessarily be in the hand writing of the landlord. All that is necessary is that it should be evidenced by writing, even though orally accepted by the landlord.

(18) The language contained in section 2(a) of the Arbitration Act 1940 is distinct from the language used in section 14(l)(b) of the Act Section 14(1)(b) provides the consent flowing from the landlord' incorporated in writing. No other mode of ascertaining the consent of the landlord is open, in view of the clear directive of the Legislature In the case of section 2(a) of the Arbitration Act 1940, the agreement of parties is to be established. It has only to be shown that the parties were ad item. The terms of the agreement have only to be reduced into writing. I am in complete agreement with the reasoning of Deshpande J., when he held: 'I he emphasis in section 2(a) of the Arbitration Act in the words 'written agreement' seems to have been on the word 'agreement'. The necessity of the agreement being in writing was only to ascertain with certainty the terms thereof. An agreement is a very frequent phenomenon of life. The Law of Contract, thereforee, covers a wide area. Contracts come into existence in numerous ways such as by correspondence. by different kinds of offers and acceptance and sometimes by acceptance of standard forms of contract by conduct or otherwise. An agreement may, thus, be spread out or split into various documents. It is not practicable to insist thereforee, that each such document should be signed by both the parties. Such insistence would have had an unsettling effect on the law of Contract. This might have been the reason why the expression 'written agreement' in section 2(a) of the Arbitration Act was construed as not requiring signature of the parties.'

(19) In view of my interpretation of section 14(l)(b) and the application of the same to the facts of this case, there is no consent in writing of the landlord for the creation of sub-tenancies in favor of Shri Hans Raj in the year 1963 and Shri Ram Baksh in the year 1964. The view taken by Deshpande J. in 'M/s Deoki Nandan & Sons' is perfectly correct and I am in complete agreement with it. In view of my decision on first point, the other two contentions do not arise. But since arguments have been addressed, I may briefly deal with it.

(20) Mr. T.C.B.M. Lal next addressed on the question that the contract of tenancy was not for Ii months, but for indefinite period. The argument of the counsel for the appellant is based on the interpretation of the rent-note Ex. A-7, which inter alias provides that the tenant will be able to adjust Rs. 100.00 every year for repairs, that water charges of Rs. 36.00 yearly shall be paid by the landlady and the balance by the tenant, and that there has to be notice for one month for termination of the tenancy. On these clauses, the counsel for the appellant wants me to hold that the tenancy was not for 11 months, but was for an indefinite period. The counsel for the appellant further urges that by service of notice dated April 24, 1970 Ex. A-2, the respondents have clearly admitted the existence of the contractual tenancy when it was stated that the month of the tenancy is an English calendar month and that the respondents did not want the appellant to remain their tenant any longer and terminated the tenancy by May 31, 1970. The counsel further urges that it is clearly stated that if the appellant continues to occupy the premises after May 31, 1970, he shall be deemed to hold ever the property adversely and shall be liable to pay damages at the rate of Rs. 220.00 per month. I he argument is that the respondents had continued to treat the appellant as contractual tenant even after the expiry of 11 months and had received the rent from month to month. The rent under the rent-note. Ex. A-7 was Rs 100.00 but was increased to Rs. 110.00 per month and has been realised by the respondents during the entire period up to May 31, 1970. The counsel for the appellant, relying on Ganga Dutt Murarka v. Kartik Chandra Das, : [1961]3SCR813 urged that the conduct of the parties may undoubtedly justify an inference that after the afflux of 11 months of the contractual tenancy, the respondents continued to receive the contractual rent and treated the appellant as tenant from month to month.

(21) On the other hand, Mr. Sultan Singh, counsel for the respondents has contended that rent-note Ex. A-7 is the only repository of the conditions of the creation of the tenancy, and the period of tenancy having been prescribed in the rent-note itself, the rent-note alone has to be looked into for purposes of ascertaining the period of tenancy. There is a great force in this contention and it must prevail. The rent-note, prescribes the period of tenancy as 11 months. If the argument of the appellant's counsel is accepted that rent-note, Ex. A-7 is for an indefinite period, then it is hit by section 107 of the Transfer of Property Act, 1882 and section 49 of the Registration Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument. Ex. A-7 is not a registered instrument. The appellant cannot prove the lease of immovable property or its terms without a registered instrument in his favor. All other evidence is shut out under section 49 of the Registration Act. This rent-note cannot be used in evidence to prove the transaction.

(22) The counsel for the respondents further submits that there is no plea of the creation of fresh tenancy on a monthly rent of RS.110.00 as against Rs. 100.00 contained in rent-note Ex. A-7. According to him, the more acceptance of rent will not create any fresh tenancy. This is so and I agree. In the case of Ganga Dutt Murarka, raised upon by counsel for the appellant, it was clearly laid down that where a contractual tenancy to which rent control legislation applies has expired by efflux of time or by termination of notice to vacate and the tenant remains in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord, after expiration or determination of the contractual tenancy will not afford ground for holding that the landlady has assented to a new contractual tenancy. There is no finding of the courts blow that the respondents treated the appellant as tenant from month to month or that the landlady had entered into a fresh contract of tenancy with the tenant whose right of occupation was determined by the efflux of time and who remained in possession of the tenancy premises by the virtue of statutory protection. No such contract was either pleaded or was found to have been established on record. So, if the contractual tenancy ended by the efflux of time after 11 months as provided in the rent-note, then all terms and conditions contained in the rent-note also come to an end. There was thus no right to sub-let when the sub-tenancies were created in the year 1963 and 1964. The appellant must fail on this ground also.

(23) The last contention of the counsel for the appellant is that assuming for the sake of arguments, that the tenancy expired by efflux of time, than as a matter of construction of the definition contained in the Rent Control Act, a statutory tenant is included in the definition of the tent. The consent given to the contractual tenant would continue, even after the determination of tenancy and would ensure for the benefit of the statutory tenant. Mr. T.C.B.M. Lal relied upon Roo v. Russell (1928) 2 K.B. 117, wherein it was held that the right of subletting is not restricted to sub-letting during the currency of the tenancy agreement, but intended to be exercisable by the statutory tenant.

(24) This argument of the counsel for the appellant is fallacious. A person remaining in occuption of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called 'a staututory tenant'. Such a person is not a tenant at all : he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal : it is not capable of being transferred or ass igned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sub-let by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by asset to his continuing in possession by the landlord, the terms and conditions of the lease are extinguised, and the rights of such a person remaining in possession are governed by the statute alone (see Anand Nivas Private Ltd. v. Anandji Kalyanji v. Bedhi and others. : [1964]4SCR892 ). While interpretting the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) the Supreme Court, further, held : 'In this clause the expression 'tenant' apparently means a contractual tenant, for it authorises a landlord to recover possession of premises if the tenant has unlawfully assigned, transferred his interest in the premises or has unlawfully sublet the premises. A statutory tenant has to interest in the premises occupied by him, and he has no estate to assign or transfer. To read the clause as meaning that an assignment or transfer of any premises which attracts liability to eviction would be only in respect of a contractual tenancy whereas subletting which invites that penalty may be in respect of tenancies- contractual and statutory alike, would be to attribute to the Legislature an intention to impute two different meanings to the expression 'tenant' in claus (e) of S. 13(1). By clause (d) the Legislature has recognised the right of a landlord to recover possession if the tenant has without being so authorised by contract, sublet in whole or in part the premises, or assigned or transferred in any other manner his interest therein A statutory tenant having no interest in the property it was plainly unnecessary to prohibit transfer of what was inffective. Nor can there be letting of the premises by a statutory tenant, for letting postulates a transfer of the right to enjoy property made for a certain time, express or implied, in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction.' Again in Calcutta Credit Corporation Ltd. and another v. Happy Homes (P) Ltd., : [1968]2SCR20 , the Supreme Court held that 'since a statutory tenant has merely a personal right to protect his possession, and has no estate or interest in the premises occupied by him, he cannot convey an estate or interest which he does not possess. A statutory tenant by parting with possession forfeits the protection of the Act, and unless the statute expressly provides or clearly implies otherwise, the person inducted by him cannot claim the protection of the Act'.

(25) Considered in the light of the scheme and object of the Act, the expression 'tenant' entitled to sublet with the consent in writing of the landlord, would mean a contractual tenant alone and not a statutory tenant. A statutory tenrnt has no interest or estate occupied by him and it cannot be held that the Legislature without making an express provision to that effect in tended to invest him with power to induct into the premises in his occupation a person who will be entitled to claim the right and interest of a contractual tenant In view of the clear pronouncement of the Supreme Court, I have no hesitation in holding that the appellant, who was a statutory tenant had no right to sublet the premises after the expiry of the period of contractual tenancy of 11 months, as is stipulated in rent-note Ex. X-7, (assuming that there was consent in writing of the landlord). For the reasons stated, the appeal fails and is dismissed with costs.


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