H.L. Anand, J.
(1) This Second Appeal, by an unsuccesful sub-tenant, challenges the order of the learned Rent Control Tribunal dismissing the appellant's appeal against the order of the learned Addl. Rent Controller dismissing the objections filed by the appellant under Section 25 of the Delhi Rent Control Act, 1958, hereinafter called 'the Act' on the ground that the same were not maintainable. The Second Appeal has been filed in the following circumstances:
(2) The property in dispute bearing Municipal Nos. 1179-80, situated in Pahar Ganj. New Delhi, was owned by Gauri Prasad, who is said to have died in the year 1968. The first and the second floors of the said property bearing Nos. 1179 and 1180 respectively were let out by the landlord to one Ram Kishan Aggarwal, respondent No. 2 in the present appeal. The appellant herein claims to have been a sub-tenant under the said tenant in respect of the entire second floor of the property and there is a dispute between the parties as to the date since which the appellant has been a subtenant, as to whether it was with the consent of the landlord and as to whether the appellant became a lawful sub-tenant at any material time. On August, 1947, the landlord filed a suit for the eviction of the tenant and for recovery of rent and, according to annexure 'A' to the memorandum of appeal filed by the appellant before the learned Tribunal, the claim for rent was decreed but the suit for ejectment was dismissed. Neither the notice of termination of tenancy, if any, nor the plaint was placed on record and there is no indication from the order of the learned trial Court if the ejectment was claimed on the ground of sub-letting or if the tenancy had been terminated prior to the institution of the suit and if the appellant herein was the sub-tenant, the sub-letting in whose favor may have formed subject-matter of a ground of ejectment. It is, however, claimed on behalf of the appellant that the claim for ejectment was turned down on the basis of a statement of the landlord that the sub-tenant, the appellant herein, was a lawful tenant. Subsequently, the landlord filed another suit on August 8, 1950 for ejectment and for recovery of rent and according to the plaint, which is annexure 'B' to the aforesaid memorandum of appeal, the earlier suit of the plaintiff for ejectment was dismissed because 'sub-letting of part was proved to , prior to the promulgation of Act 19 of 1947'. It is further mentioned in the plaint that plaintiff served the defendant 'with a notice seeking information about the portion sublet and the rent charged from the sub-tenant.' In the plaint the plaintiff also claimed enhancement of rent on account of sub-letting. The plaint further mentions that a notice of ejectment, requiring the tenant to pay enchanted rent or to vacate the premises, had been served by the plaintiff on the defendant. The claim for eviction was, however, not grounded on any sub-letting. According to an order of the trial Court, copy of which is annexure 'B (1)' to the aforesaid memorandum of appeal, a cheque for Rs. 1175 had been given to the landlord by the defendant and it is recorded that the suit was dismissed in accordance with the statement of the partics. This order is dated October 10, 1950 but here again, neither the notice terminating the tenancy nor the statements of the partics, which formed the basis of the order, have been placed on the record. It is, however, the contention of the appellant that the matter was compromised between the parties as the tenant agreed to increase the rent by virtue of sub-letting in the appellant's favor. This was followed in January, 1965 by an application for the eviction of the tenant under the act. The eviction of the tenant was claimed by this application on the ground that the premises had been sub-let to two sub-tenants, without the written consent of the landlord after June, 1952. It was further stated that the 'first floor has been sub-let to one person and the second floor to another.' It was further claimed in the application that on August 8, 1964, a notice was given, a copy of which was enclosed with the application. A copy of this application is Annexure 'C' to the aforesaid memorandum of appeal. The application was contested on behalf of the tenant by a written statement, a copy of which is Aiinexure 'D' to the aforesaid memorandum of appeal. In the written statement it was claimed that the first floor of the premises was being used for the purpose of offices by a Union, which was a lawful sub-tenant since 1945, and part of the first floor was the office of the tenant himself. With reference to the second floor, it was contended that the 'second floor is in the occupation of Smt. Gaura Devi Nurse who is also a lawful sub-tenant since 1942.' The aforesaid reference is to the appellant. It was further contended that the sub-tenants were lawful; that the aforesaid facts had been established in the first suit by the landlord; that is why the prayer for ejectment had been given up; that in the second suit it had been admitted by the landlord that the previous suit for ejectment was dismissed as the sub-tenancy was created prior to the Act of 1947; and that. the question as to the nature of sub-tenancy was, thereforee, resjudicata between the parties. In the replication to the written statement, the landlord generally denied the various averments in the written statement and the fact that the sub-tenants were legal sub-tenant was specifically denied. The institution of the earlier proceedings was, however, not denied. A copy of the replication is Annexure 'E' to the aforesaid memorandum of appeal. By an order of May 21, 1968, the learned Addl. Rent Controller, Delhi dismissed the application for eviction as 'withdrawn' in view of the statement of the counsel for the parties with permission to the landlord to file a fresh application on the same causes of action as the application, appeared to the Court, to suffer 'from technical defect of the service of notice.' Here again, the statements of the counsel for the parties, which led to the dismissal, is not on the record. This was followed in April, 1971 by an application under Section 19 of the Slum Areas (Improvement & Clearance) Act, by Rameshwar Pershad, respondent No. 1 herein, claiming to be the owners of the property, seeking permission to institute a suit or proceeding or the eviction of the tenant inter alia, on the grounds of subletting. This was granted as the tenant appeared and made a statement that he was not contesting the case and 'had no objection to the granting of the permission to the petitioner.' The permission was accordingly granted by the Competent Authority by order of April 24, 1971, a copy o!' which is Annexure 'C' to the aforesaid memorandum of appeal. Rameshwar Pershad, aforesaid, accordingly filed an application under Section 14 of the Act seeking ejectment of the tenant from the premises in dispute, inter alia, on the ground of sub-letting. A copy of this application is not on. the record nor is the notice that may have been served on the tenant terminating his tenancy prior to it. A copy of the order, that was eventually made on November 19, 1971, which is Annexure 'H' to aforesaid memorandum of appeal, however, shows that the application was for the eviction of the tenant from both the first and the second floor of the said property. The eviction was claimed, interalia, on the ground of unauthorised sub-letting and the tenancy of the tenant had been terminated by notice of May 16, 1971. The tenant appeared in Court and 'admitted all the allegation of the petitioner to be correct' and the learned Addl. Rent Controller observed: ' from the statement on oath of the petitioner coupled with the candid admission of the respondent I am satisfied that the tenant respondent in the previous eviction petition was granted benefit of section 14(2) of the Act and thereafter he again committed default in payment of rent for more than three consecutive months. From the said evidence and the admission of the respondent I am further satisfied that the ground of eviction as contemplated by provisos (b), (d), (e) and (h) of the Act also exists in this case. The tenant respondent has also admitted having received notice of demand and termination of tenancy from the petitioner.' The learned Addl. Rent Controller accordingly passed an order of eviction under Section 14(1)(a), (b), (d), (e) and (h) of the Act. When the appellant was sought to be evicted in execution of the aforesaid order of eviction, a petition under Section 25 of the Act read with Order Xxi and Section 151 of the Code of Civil procedure was filed on behalf of the appellant before the learned Addl. Rent Controller seeking dismissal of the execution application of the landlord on the ground that the appellant was a lawful sub-tenant of the second floor of the property in dispute; that Gauri Parshad, the original owner, had admitted the appellant as a lawful sub-tenant in several litigations between him and the tenant; that the respondent Rameshwar Parshad 'the alleged heir' and son of late Gauri Parshad had filed an application for eviction against the tenant without impleading the sub-tenants, that the appellant and another, 'are in the actual possession of the suit premises since more than 25 years' under an independent right; that the appellant was necessary party to the original proceedings; that the decree-holder procured the above 'decree' of ejectment by fraud and in collusion with the judgment-debtor, respondent No. 1 herein that the 'decree' was not binding on the appellant and was a nullity and without jurisdiction against the appellant; and that the appellant came to know of the 'decree' only when the appellant was sought to be evicted. This petition was resisted by respondent No. 1 herein and, apparently without recording any evidence, the learned Additional Rent Controller dismissed the aforesaid objections by an order made on May 9, 1972 and the only ground considered by the learned Addl. Rent Controller was if the objection petition was maintainable which was answered in the negative on the ground, basing his decision on the decision of the Court in the case of Roshan Lal v. Smt. Bhagwati Devi and others, 1969 R.C.R. 165; Shri Tara Chand v. Mst. Marrium Bi and another, 1970 R.C.R. 438 and Ved Parkash v. Rashid and another, 1971 D.L.T. 191 that the sub-tenant was not entitled to the protection of Section 18 of the Act because the appellant 'has not alleged even any giving of any notices of her lawful sub-tenancy to the landlord within the time prescribed or manner given in the Rules.' It was further held that the appellant was not a necessary party. The aforesaid order was made prior to the two important decisions of this Court on the question i.e. Jagan Nath v. Abdul Aziz and others, 1973 Delhi 9 and Murari Lal v. Abdul Gaffar and others, 1973 R.C.A. 748. The question whether the appellant was a lawful sub-tenant was not decided though assumed and the further question raised in the objections that the eviction order had been obtained by collusion between the landlord and the tenant and by fraud was not considered. It is singnificant that in his reply to the objections, the landlord had denied the allegation that the appellant was a lawful sub-tenant. Aggrieved by this order, the appellant filed an appeal before the learned Rent Control Tribunal which was dismissed by the learned Rent Control Tribunal by an order made on December 13, 1973. In the course of the aforesaid order, the learned Tribunal held that a sub-tenant could not be deemed to have an independent title to the premises and would not, thereforee, be entitled to the protection given by proviso Section 25 of the Act; that the appellant also was not entitled to the protection of Section 18 or the Act because the appellant had neither alleged nor proved that a notice under Section 17 of the Act envisaged by Section 18 of the Act as a condition precedent to the protection, had been given to the landlord in the prescribed manner. The contention of the appellant that inasmuch as the landlord knew that the appellant was a sub-tenant in the premises since prior to the material date, the absence of notice was of no consequence and was a pointless formality was, however, dispelled on the basis of the decision of the Division Bench of this Court in the case of Murari Lal (supra), (5). Reliance on behalf of the appellant on a Single Bench decision of this Court in the case of Jagan Nath (supra) (4) was considered inappropriate in view of the said pronouncement of the Division Bench, which had taken a contrary view, which the learned Tribunal felt impelled to follow. The further contention of the appellant that the Supreme Court had since declined to grant special leave against the judgment in the case of Jagan Nath (supra) (4) and had granted special leave against the decision in the case of Murari Lal (supra) (5) were not considered by the Tribunal of any consequence because neither of the two circumstances , appear to have in any way affected the validity or vitality of the Division Bench judgment nor would such a circumstance provide such reinforcement to the decision of the learned Single Judge in the case of Jagan Nath (supra) (4) which may entitle the Tribunal to prefer it to the decision of the Division Bench. The further contention of the appellant that the impugned order was a nullity, in that, it was not signed on May 9, 1972 when it was announced and purported to be signed was dispelled on the ground that according to the record, the order purported to be signed on the date it was announced and presumption of correctness attached to judicial proceedings and records. Learned Tribunal, however, noticed that on May 10, 1972, the appellant had made an application before the Tribunal for the transfer of the objection petition from the then Addl. Rent Controller to some other Court on the allegation that the learned Controller announced the order on May 9, 1972 but had not signed it on that day and that the application was dismissed by the learned Tribunal with the objection that 'the appellant could raise this point in the appeal.' The learned Tribunal also noticed that the appellant had filed a similar affidavit in which it was stated that the impugned order, though announced on May 9, 1972, had in fact been signed on May 11, 1972. It was also noticed that the counsel for the appellant had filed a similar affidavit in which it was stated that the order had been signed on May 12, 1972. The learned Tribunal, however, rejected the affidavits because of the discrepancy in the date between the two and preferred the affidavit filed on behalf of respondent No. 11 landlord that he was personally present in the Court when the order was announced on May 9, 1972 and that it was signed at that time. It is this order of the learned Tribunal which is sought to, be challenged in the present Second Appeal.
(3) Shri G. L. Seth, learned counsel for this appellant bag assailed before me the order of the learned Rent Control Trib.B)oal as in. deed that of the Controller on a number of grounds.
(4) In the first instance, learned counsel contends that the appellant having been in occupation of the premises in dispute since beJiore 9th day of June, 1952 and having been in occupation of such premises whether with or without the consent of the landlord, at the commencement of the Act, he would be deemed to have become a lawful sub-tenant and would have the protection of Section 18 of the Act notwithstanding that no notice of sub-letting may have been given either under sub-section (1) of Section 17 or under sub-section (2) of. Section 17 because the landlord throughout not only knew of the said sub-letting but had given implied consent to it in the course of the various statements made in the proceedings between the landlord and the. tenant and that their requirement of the notice had in any event been waived by the landlord and the landlord would be estopped from raising the plea that he had no knowledge of the sub-letting during the material period and from denying the appellant's status as a lawful sub-tenant. He further contends that any notice in the pres, cribed form whether under Section 17(1) or Section 17(2) would have, thereforee, been a pointless formality. He also sought to argue that a notice under Section 18(1) was distant from notices referred to in the two sub-sections of Section 17 and for such a notice no prescribed form or prescribed manner has been laid down in the statute i and the knowledge of the landlord with regard to sub-letting was a complete substitute for such a notice. In support of his contention, learned counsel relied upon the records of the proceedings of the litigation between the landlord and the tenant referred to above and sought support for the legal proposition from a decision of Deshpands, J. in the case of Jagan Nath (supra), (4). Learned counsel was not unaware of the decision of this court in the case of Roshan Lal (supra) (1), Tare Chand (supra) (2), Ved Prakash (supra) (3), Raghubir Singh v. Smt. Savitri Devi and others, 1973 R.C.R. 601 and Murari Lal (supra) (5) in which a contrary view was taken but sought to explain away those decisions by an interesting process of reasoning. He contends that besides the judgment of this Court in the case of Murari Lal (supra), (5) all other decisions referred to above, which have taken the contrary view, are Single Bench decisions of this Court and that while some of these were distinguishable on facts, the decision in the case of Roshan Lal (supra), relied upon in the other decisions as also in the decision of the Division Bench in the case of Murari Lal (supra), (5), as well as the Division Bench judgment in the case of Murari Lal (supra) (5) have lost their force and vitality and it is the decision of Deshpande J. in the case of Jagan Nath (supra) which must be given effect to. It is contended that the judgment in the case of Jagan Nath (supra) (4) appears to have been sanctified by the Supreme Court in that the Special leave petition against it by the Supreme Court was dismissed by the Supreme Court on October 3, 1972 and that, that was more, Dua J. who was party to the judgment of this Court in the case of Roshan Lal (supra) (4) was member of the Bench which declined the special leave. He further pointed out that the Division Bench decision of this Court in the case of Murari Lal (supra) (5) was also subject matter of special leave petition which was granted and that the appeal was still pending in the Supreme Court. He further argued that when the decision in the case of Murari Lal (supra) (5) was announced on September 7, 1973, special leave against the judgment in the case of Jagan Nath (supra) (4) had already been refused on October 3, 1972 and that if this fact had been brought to the notice of the Division Bench which decided the case of Murari Lal (supra) (5) the ratio of its decision would perhaps have been different.
(5) On the other hand, L. Harnam Dass, learned counsel for the landlord, contended that the contention of the appellant that once the sub-letting was deemed to be lawful, such lawful sub-tenancy matured into a tenancy on that termination of the tenancy of inc tenant without a notice either under sub-section (1) or sub-sees ion (2) of Section 17 merely because the landlord may have knowledsg of the aforesaid sub-tenancy during the material period, could nol be supported either on principle or on a true construction of the provisions of Sections 16, 17 and 18 of the Act or on any precedent. Learned counsel further contended that in any event, so far as this Court was concerned, the controversy as to the true meaning and scope of the provisions of Sections 16, 17 and 18 and as to the circumstances in which a deemed lawful sub-tenant or any other law-fill sub-tenant would have the protection of Section 18 of the Act on the termination of the tenancy had since been set at rest by the (supra). Learned counsel further contended that the reasoning adopted by the learned counsel for the appellant would be of no avail firstly because the special leave granted by the Supreme Court against the decision in the case of Murari Lal (supra) (5) or the special leave refused by the Supreme Court against the judgment of this Court in the case of Jagan Nath (supra) would not make any difference or in any manner affect the operation of the Division Bench judgment or in any manner sublimate the other decision. Learned counsel further claimed that the appeal filed against the judgment of this Court in the case of Murari Lal (supra), (5) pursuant to the special leave granted by the Court earlier, had in any event been since withdrawn by the appellant in that case and there was no reason why the Division Bench judgment in the case of Murari Lal (supra) (5) should not prevail and it should be held that in the absence of a notice in the pirescribed manner, the sub-tenancy in favor of the appellant could not and did not mature into a full-fledged tenancy merely because the landlord may have been aware of the sub-tenancy in favor of the appellant. Learned counsel for the landlord further contended that apart from the proposition of law as to the true meaning and scope of the provisions of Sections 16, 17 and 18, there was no factual basis on the record of the present proceedings which may enable the appellant to take advantage of the protection of Section 18 of the Act. The argument of the learned counsel for the landlord was that a sub-tenant could be deemed to be a lawful sub-tenant if the sub-letting had taken place before June 9, 1952 by virtue of the provisions of Section 16(1) of the Act but there was no material on the record nor the admission of the landlord that the sub-tenancy in favor of the appellant had been created before the crutial date. The appellant could not, thereforee, claim the benefit of the deeming provisions in the absence of such a material and the question of such lawful sub-letting maturing into a valid tenancy would not, thereforee, arise. It was next argued that the protection provided by sub-section (1) of section 18, apart from the question of notice, would be available to a sub-tenant, the sub-tenancy in whose favor was lawful, that there was no material on die record which may indicate that the subtenancy in favor of the appellant had been created with the prior consent in writing of the landlord or was otherwise authorised by him and was, thereforee, lawful and that even for the purpose of prot ection of sub-section (2) of Section 18, the protection would be available only subject to the satisfaction of other grounds i.e. if the interest of the tenant had been determined before the commencement of the Act and that there was no material on the record 'which may indicate that it was so done at any stage prior to the commencement of this Act in the present case. In sum, the argument of the learned counsel for the landlord was that the factual basis to attract the protection of Section 18 was wanting in the absence of any material on the record and that, whatever view one took of the scope and meaning of the aforesaid provisions, there was no possible way in which the appellant could succeed without such a material. Learned counsel for the landlord further challenged the contention urged on behalf of the appellant that, by virtue of the proceedings between the landlord and tenant, there has either been an acceptance by the landlord of the sub-letting in favor of the appellant or a waiver by the landlord of the requirement of a notice under section 17 or that such acceptance would operate as an estopped against any claim by the landlord that the appellant was not a lawful sub-tenant. Here also, learned counsel for the landlord took advantage of the fact that the material placed by the appellant on the recovered of the proceedings in respect of such acceptance and other conduct was insufficient.
(6) It is well settled that a sub-tenant has no independent title to the premises and can only claim under a tenant and there is neither any privity of contract between the landlord and a sub-tenant nor any privity of estate between the two. In the ordinary law. thereforee, an order of ejectment against a tenant is binding on the subtenant and he must go with the tenant. The provisions of Sections 16, 17 and 18 of the Act and of Section 25 of the Act appear to be a legislative recognition of a departure from the ordinary rule of law so that an order of eviction made under the Act binds all persons who may be in occupation of the premises except those covered by Section 18 of the Act and those who claim an independent title to the premises. The ambit of protection for the sub-tenant is set out in Section 18. These provisions incorporate important safeguards for a sub-tenant and if the sub-tenant complies with the requirement of these provisions and qualifies for the protection provided under Section 18 of the Act, he can get rid of the rigour of the eviction order, even though in the ordinary law, he would be bound by it.
(7) An examination of the scheme of the provisions of Sections 16, 17 and 18 as indeed of Section 25 of the Act by this Court has produced a conflict of judicial opinion and while there is the decision of Deshpande J. in the case of Jagan Nath (supra) (4) on the one hand, the Division Bench in the case of Murari Lal (supra), (5) as indeed a number of Single Benches in the various cases referred to above, have taken the contrary view. It is interesting to notice in this context that the judgment of Deshpande J., to an extent, would appear to have an imprimatur of the Supreme Court, in that, the special leave against that judgment was dismissed and this fact was not disputed before me on behalf of the landlord. It is also interesting that the Bench which refused the special leave was composed, amongst others, of Dua J. as he then was, whose decision in the case of Roshan Lal (supra) (1) as a Judge of this Court was the first in the series and was, by and large, followed by the latter decisions which have taken that view. It is not wholly irrelevant in this context that the Division Bench which decided the case of Murari Lal (supra) (5) was not aware that special leave had been refused against the decision in the case of Jagan Nath (supra) (4) and that Dua J. was a party to the Bench of the Supreme Court which refused special leave. That the Supreme Court granted special leave against the decision in the case of Murari Lal (supra) itself cannot be considered irrelevant. In any event, these developments do point out to the difficulty in the interpretation of the provisions of Sections 16, 17 and 18 and the view taken by Deshpande J. in the case of Jagan Nath (supra) (4) in any event was a possible view to take of the matter and much can be for both the views.
(8) In the circumstances, ordinarily I would have analysed the various decisions in the context of what appears to me to be the true meaning and scope of the aforesaid provisions in the context of the scheme of the Act as indeed the broad principles incorporated in it and would have expressed my humble opinion, if I felt free to do so, but I refrain from pursuing the matter further because J am of the view that, for a variety of reasons to be presently stated, the appeal must be accepted and the objections remanded for fresh trial to the Addl. Rent Controller according to law.
(9) In the first place, the dismissal of the objections by the Courts below on the ground that the objection petition was not maintainable appears to me to be improper. The maintainability of the objections, whether under Section 25 of the Act or Section 47 of the Code of Civil Procedure is clearly distinguishable from the sustainability of the claim that the appellant had the protection of Section 18 of the Act and was, thereforee, not liable to be evicted pursuant to the order of eviction. In his objections under Section 25 of the Act, as indeed under Section 47 of the Code of Civil Procedure, the appellant was entitled to raise all such pleas which may entitle the appellant, as the validity of action, to the extent it was open to the appellant, as the validity of the order of eviction .and as to his liabirity to be evicted from the premises pursuant to such an order. Neidier the provisions of Section 25 of the Act nor that of Section 47 -of the Code of Civil procedure make the protection of Section 18 -of the Act a condition precedent lo the filing of such obJections. The Courts below have clearly ignored this distiaction, and instead of addressing themselves to the various questions raised in the objection petition, as for example, whether the decree, was invalid or a nullity or whether the appellant was entitled to the protection under Section 18 of the Act or not, the Courts proceeded to determine tfie question on the basis whether the petition was maintaanable if the appellant was not entitled to the protection under Section &. 8. The Courts below ought to have, thereforee, examined the various questions of fact as to the period since when the appellant came in to possession of the premises, the date of sub-tenancy, in his favor, whether it was a lawful sub-tenancy, the effect of the earlier proceedings on the sub-tenant and the consequances of the termination of the tenancy of the tenant. It should have further considered the question if the order of eviction could be said to be a nullity or be void either because it was made as a result of collusive proceedings or as a result of fraud or otherwise. By dismissing the petition as being not maintainable merely because notice had not been issued, the Courts below declined to consider the various other aspects of the question and consequently deprived the appellant of an opportunity to produce the necessary material relevant thereto. It is sufficient to say that even if the apprllant was unable to show that he did not have the protection of Section 18, the objection petition of the appellant could stiil not be said to be not maintainable because the appellant had in any event raised the question .as to the validity of the order of eviction, inter alia, on the ground that it had been made in proceedings, which had been wtiated by collusion and fraud, to which the appellant was not a party and at the instance of person who was the alleged heir of the original landlord. Learned counsel for the landlord may be right in his contention that the appellant was not a necessary party to the proceedings in I which the eviction order was made or that the particulars of collusion or fraud had net been given in the objection petition and that the ground that the eviction application was not maintainable at the instance of one of the heirs had not been specifically raised. These are, however, matters Which would involve controversies both of fact and law aad it was proper (that the Courts below would have gone into these and recorded their decisions. If particulars m respect of any particular allegation were insuffeient further particulars should have been asked for or ordered. But these objections could not be brushed aside by holding that the petition was not maintainable merely because they held that a notice in the prescribed manner was necessary for any lawful sub-tenancy to mature into a tenancy. It was improper for the Courts below to have left the other questions undetermined and if they had determined all the questions after a full investigation, the order of remand would have been unnecessary and the whole question could have been gone into and decided in this Court in the present appeal.
(10) In the second instance, the material placed before the Courts below by the appellant with regard to the history of the appellant's occupation and of the relationship between the appellant and the predecessor of respondent No. 1 was insufficient to indicate the period since which the appellant has been in occupation as a sub-tenant, if the landlord had knowledge of the sub-tenancy in favor of the appellant and if so, the period during which the landlord had such knowledge, whether the landlord could be said to have given written consent to the sub-tenancy, whether the landlord at any stage terminated the tenancy, whether the landlord made any statement in the course of the proceedings between the landlord and tenant which may amount to the acceptance of the appellant as a lawful sub-tenant or a waiver of any notice under Section 18 of the creation of any such sub-tenancy or-may operate as an estoppel against the landlord denying the acceptance of lawFul sub-tenancy in favor of the appellant. It is, thereforee, not possible on the existing material to determine if the appellant would be entitled to the protection of Section 18, on the application of what may appear to be the true test laid down in that behalf in Section 18 of the Act, on the basis of the review of the aforesaid decisions. There is perhaps no difficulty in determining the controversy between the parties even without any further material if the view taken of the law by the Division Bench in the case of Murari Lal (supra) (5) was the only view possible. Such a determination is, however, not possible on the existing material if one could be pursuaded to take the contrary view and that possibility was unfortunately not envisaged by the Courts below while dealing with the matter. It is, thereforee, reasonable and proper that the appellant is given an opportunity to place the entire material before the Court to enable the Court to determine the true factual position and decide the various questions on the application of law in the way they may be pursuaded to look at it.
(11) Thirdly, the appellant had challenged in his objection petition the validity of the order of eviction on the ground that it had been obtained in collusive proceedings and by fraud. In the objection petition, the appellant merely described the landlord as the alleged heir of the original owner. Before the learned Tribunal, he raised the plea that an eviction application by only one of the various owners of the deceased owner was not maintainable. Learned counsel for the landlord may be justified in his contention that the particulars of the collusion or fraud were not set out nor did the appellant specifically raised the question of the maintainability of the eviction action and that if it had been done, the landlord would have been able to show that after the death of the original owner, there has been a partition between the various heirs and the property in dispute fell to the share of the respondent landlord. It is true that the particulars of collusion and fraud have not been given with sufficient clarity and detail but the manner in which the tenant came forward and conceded the case of the landlord, even though successive proceedings in the past between the parties were contested on all questions including the question of sub-letting does cast some suspicion on the genuineness of the defense of the tenant and did call for an investigation. Interestingly enough, in leply to the objection petition, no grievance was made on behalf of landlord that further particulars of collusion or fraud were required.The learned counsel for the landlord is also justified in his criticism that in the objection petition) the appellant contended herself by merely describing the landlord as an 'alleged heir' of the owner and did not specifically raise the question that the eviction applies was not maintainable at his instance. This objection was, however, more specifically raised in the grounds of appeal before the learned Tribunal. Be that as it may, both these questions were of considerable importance and their decision in favor of the appellant would have gone to the root of the entire matter and would have serious impact on the validity of the order of eviction. It was, thereforee, proper that these questions were gone into and opportunity was granted to the appellant to produce material in support of the allegations.
(12) It must also be pointed out that in dealing with the objections, the Courts below were singularly oblivious of the fact that original proceedings were taken behind the back of the appellant. Even though a sub-tenant may not strictly be a necessary party in an action for the eviction of a tenant, he is a proper party because his interest could be seriously jeopardised in his absence if the tenant under whom he claimed colluded with the landlord. In such a case the statutory protection given by Section 18 to a lawful sub-tenant by the Act may prove to be illusory in some cases. A less vigilant sub-tenant may be thrown out in execution of the eviction order even though it may eventually be found either that the proceedings were collusive or that he was entitled to the protection of Section 18 of the Act. Such a possibility did call for a greater introspection and care on the part of the Courts while dealing with the objections of a sub-tenant. The following observations of the Supreme Court in the case of South Asia Industries Private Ltd. v. S. Anup Singh and others, 1966 P.L.R. 108 may be usefully kept in view in such a situation
'Iam not unmindful of the fact that where an order for recover of possession of any premises is made under s. 14 against a tenant assigning or sub-letting 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. thereforee, support an argument that it was not intended that an order for recovery of possession could be made tinder s. 14 against an assignee or a subtenant. On the other hand, it seems to me that to an application under cl.(b) of the proviso to sub-s.(l) 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 sub-letting 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. thereforee, interested in showing that there was the requisite consent. They should hence be entitled to be made parties to the proceedings. Otherwise, if under s. 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing. It is no argument against this view that the direct tenant would protect them, for they cannot be made lo depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defense, he may even collude with the landlord or he may just not bother. If the assignee of the sub-tenant is thus entitled to be beared 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 do 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 docs not make the ejectment order so binding, the appellant cannot resort to it for any assistance.'
(13) For all these reasons, the appeal succeeds. The impugned orders of the learned Tribunal and of the learned Addl. Rent Cont roller arc set aside and the objection petition of the appellant is remanded to the learned Addl. Rent Controller, Delhi for fresh trial in accordance with law. The learned Addl. Rent Controller would consider in accordance with law any motion by the appellant for an amendment of the objection petition to raise specifically the pleas referred to above.
(14) As the order of remand has become necessary partly because the proceedings on behalf of the appellant were not taken with the care and diligence they should have been, the appellant would pay Rs. 350 as costs to the landlord, and the order of remand would be conditional on the said payment.
(15) The parties are directed to appear before the learned Rent Control Tribunal on November 5, 1974 who would entrust the matter to any learned Addl. Rent Controller for further proceedings. The records be also transmitted to the Learned Tribunal before the date, if necesary, by special messenger. As the eviction order has remained stayed during all this period and would remain stayed until the decision of the objections, I further direct that the learned Addl. Rent Controller, who may be seized of the matter, would hear and decide the objections, as far as possible, within a period of six months from the commencement of the proceedings before him.
(16) In the circumstances, there would be no further order as to costs.