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G.L. Kapoor Vs. Ramesh Chander Nijhawan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 91 of 1972
Judge
Reported inAIR1973Delhi129; 8(1972)DLT514; 1972RLR140
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantG.L. Kapoor
RespondentRamesh Chander Nijhawan and ors.
Advocates: G.S. Vohra,; M.M. Vohra,; V.K. Krishna Menon and;
Cases ReferredKaram Singh Sobti v. Pratap Chand.
Excerpt:
- - it is precisely with a view to preclude such plea of estoppel based on conductor oral consent of the landlord which could beurged under section 13(1)(c) of the delhi and ajmer rent control act. in my view, they are clearly shut out by the express language of these provisions. ed rent control tribunal failed to notice the distinction between the provisions of these two acts and was not, thereforee, justified in following this decision under the old act in the present case which is to be decided under the new act......for eviction was passed by the controller under clause (b) of the proviso to s 14(1) of the delhi rent control act, 1958 (hereinafter called the act) the tenant and the sub-tenants appealed to the rent control tribunal. but during the pendency of the appeal the tenant withdrew the appeal. the appeal of the sub-tenants was dismissed on merits by the tribunal. the present second appeal against the order of the tribunal is filed by one of the sub-tenants only, namely, g. l kapoor. (2) the first question for decision is whether a sub-tenant can file this appeal when the tenant himself chose to withdraw his appeal before the tribunal. the law is clear on this subject. an ordinary sub-tenant has his privity of contract and estate with the tenant only. he has no relationship in law with the.....
Judgment:

V.S. Deshpande, J.

(1) The respondent landlord obtained an order for eviction against the original tenant Kishan Chand Mehra and his sub-tenants Madan Lal Jagg', Oriental Carriers (P ) Ltd. G.L. Kapoor ana Dhillon Transport Company on the ground that a part of the premises was sublet by the tenants to the sub-tenants after the 9th day of June, 1952 without obtaining the consent in writing of the landlord. The order for eviction was passed by the Controller under clause (b) of the proviso to s 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) The tenant and the sub-tenants appealed to the Rent Control Tribunal. But during the pendency of the appeal the tenant withdrew the appeal. The appeal of the sub-tenants was dismissed on merits by the Tribunal. The present second appeal against the order of the Tribunal is filed by one of the sub-tenants only, namely, G. L Kapoor.

(2) The first question for decision is whether a sub-tenant can file this appeal when the tenant himself chose to withdraw his appeal before the Tribunal. The law is clear on this subject. An ordinary sub-tenant has his privity of contract and estate with the tenant only. He has no relationship in law with the landlord. The landlord's relationship is only with the tenant. He does not recognise the sub-tenants at all. This is why both under the Transfer of Property Act and the Code of Civil Procedure, a decree by the landlord against a tenant js sufficient for the landlord to obtain the possession of the premises from the tenant even though the premises may be occupied by sub-tenants. For, the sub-tenants claim their title only through the tenant and when the title of the tenant itself comes to an end the sub-tenants go out along with the tenant. This legal position is further confirmed by section 25 of the Act, which expressly lays down that the order for eviction made by the Controller against the tenant shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from. The proviso to section 25 says that nothing in this section shall apply to any person who has an independent title to such premises. It is clear that the sub tenants have no independent title to the premises. Their only title is through the tenant. Under the substantive part of section 25, thereforee, they go oat of possession with the tenant.

(3) The only exception to the rule laid down in section 25 is enacted in section 18 of the Act. Section 18 protects the possession of a lawful sub-tenant who becomes a tenant in his own right after the original tenant is evicted. The only question thereforee, is whether the appellant can claim to be a lawful sub-tenant protected by section 18'. It is clear that he is not entitiledto such protection. Firstly, no consent in writing of the landlord has been obtained to the creation of his sub-tenancy as required both by clause (b) of the proviso to section 14(1) and sub-section (2) of section 16 of the Act. Secondly, no notice of the creation of the sub-tenancy was given to the landlord either by the tenant or by the sub-tenants under section 17 of the Act.

(4) Shri G. S. Vohra learned counsel for the appellant argued that even in the absence of a consent in writing by the landlord and a notice under section 17, the sub-tenant can still claim that the landlord is estopped from evicting the sub-tenant because he has waived the right to do so by connivingat the sub-tenancy. It is precisely with a view to preclude such plea of estoppel based on conductor oral consent of the landlord which could beurged under section 13(1)(c) of the Delhi and Ajmer Rent Control Act. 1952 that the new provisions requiring the consent in writing of the landlord were inserted in section 14(1)(b) and section 16 of the new Act. These provisions would be nullified if such pleas of estoppel based on conduct or oral consent are entertained. In my view, they are clearly shut out by the express language of these provisions. The law on this subject has been discussed at length by me in Jagan Noth v. Abdul Aziz SA.O. 149 of 1970, decided on 18th April, 1972 and in Kailash Chander Gel v. Trilok Chand Join.

(5) The learned Rent Control Tribunal thought that the sub-tenant could maintain an appeal even though the order for eviction had become final against the tenant by the withdrawal of his appeal. For this view, it purported to rely on Karam Singh Sobti v. Pratap Chand.' That decision was given under section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952 which required merely the consent of the landlord for the creation of a lawful sub-tenancy. The consent did not have to be in writing. This was why it was open to the sub-tenant in that case to plead that the landlord had consented to his sub-tenancy. Such a subtenant had, thereforee, to be joined as a party under section 13(1)(e) to enable him to prove that his sub-tenancy was lawful. But the law was changed by section 14(1)(b) and section 16 of the Delhi Rent Control Act. 1958. After the change, a Sub-tenant could.not plead that his sub-tenancy was lawful even though it was not creit'ed with the consent in writing of the landlord and even though no notice under section 17 of the creation of the sub-tenancy was given. The lean.ed Rent Control Tribunal failed to notice the distinction between the provisions of these two Acts and was not, thereforee, justified in following this decision under the old Act in the present case which is to be decided under the new Act. For the same reason, other decisions relied on by Shri Vohra of the estoppel of the landlord by conduct or oral consent which were given either under the old Act or under some other enactments under which the consent in writing of the landlord was not necessary for the creation of a lawful sub-tenancy become irrelevant. they need not, thereforee, be individually considered. As the sub-tenant has no fight to file the appeal at a 1, no prints raised by him regarding the correctness or otherwise of the order of the Rent Control Tribunal can be considered.

(6) For the above reasons, the appeal is dismissed with costs. One month's time is granted to the appellant to vacate the premises


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