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Murari Lal Vs. Abdul Ghaffar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 224 of 1968
Judge
Reported inILR1974Delhi45; 1974RLR39
ActsDelhi Rent Control Act, 1958 - Sections 17, 17(1) and 18
AppellantMurari Lal
RespondentAbdul Ghaffar and ors.
Advocates: B.R. Malik and; M. Ahmed, Advs
Cases ReferredShri Tara Chand v. Mst. Marrium Bi and
Excerpt:
(i) delhi rent control act (1958) - section 17(1)-scope of-order of eviction against a tenant without impleading a sub-tenant as a party-effect of-when a sub-tenant becomes a direct tenant.; that 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 tenancy had continued.; (ii) delhi rent control act (1958) - sections 17 & 18-expression 'a notice' by a.....jagjit singh, j.(1) in this second appeal the only question which arises for decision is as to whether under the provisions of section 18 of the delhi rent control act, 1958 (hereinafter referred to as 'the act') murarilal appellant can be deemed to have become a tenant holding directly under the landlords in respect of the premises in his occupation on the same term and conditions on which ranjit singh tenant would have held from the landlords, if the tenancy had continued. (2) the premises to which this case relates is a godown which is part of a building having municipal no. 11/953, situate in kucha qabil attar, chandni chowk, ward no. 11, delhi. it is not disputed that the godown belonged to haji abdul jabbar and was let out by him on june 19. 1954 to ranjit singh at a rent of rs......
Judgment:

Jagjit Singh, J.

(1) In this second appeal the only question which arises for decision is as to whether under the provisions of section 18 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') MurariLal appellant can be deemed to have become a tenant holding directly under the landlords in respect of the premises in his occupation on the same term and conditions on which Ranjit Singh tenant would have held from the landlords, if the tenancy had continued.

(2) The premises to which this case relates is a godown which is part of a building having Municipal No. 11/953, situate in Kucha Qabil Attar, Chandni Chowk, Ward No. 11, Delhi. It is not disputed that the godown belonged to Haji Abdul Jabbar and was let out by him on June 19. 1954 to Ranjit Singh at a rent of Rs. 85.00 per month. In July 1956 Ranjit Singh sub-let the godown to Murari Lal without the consent of the landlord.

(3) In April 1963 Haji Abdul Jabbar filed an application, under clause (a) of the proviso to sub-section (1) of section 14 of the Act, against Ranjit Singh for the recovery of possession of the premises on the ground of non-payment of rent. From the other side the tenant applied for fixation of standard rent. On April 21, 1964 Haji Abdul Jabbar and Ranjit Singh entered into a compromise according to which the standard rent of the premises was to be fixed at Rs. 50 per month with effect from April 1, 1964. Haji Abdul Jabbar also agreed not to press his application for the recovery of possession. Further Ranjit Singh was permitted to keep Murari Lal or his son Damodar Dass as his sub-tenant in the premises. In that connection paragraph 3 of the deed of compromise provided as under:-

'THATthe respondent can keep Shri Murari Lal Saraf or his son Damodar Dass Saraf as his sub-tenant in the premises. He shall not, however, have any authority to sub-lease the premises to any other person without previous consent of the petitioner in writing.'

In terms of the compromise the application for the recovery of possession was dismissed by the Controller and the rent payable by the tenant was fixed at Rs. 50 per month from April 1, 1964, even though he was charging higher rent from Murari Lal.

(4) Haji Abdul Jabbar died about four months after the dismissal of his application for the recovery of possession. Thereafter on October 19, 1964 Abdul Ghaffar, Abdul Liak, Shafiq Ahmed and ' Shah Rukh Ahmed, sons of Haji Abdul Jabbar, filed an application under section 14 of the Act for the recovery of possession of the premises from the tenant without impleading the sub-tenant. The grounds on which the recovery of possession was sought were the non-payment of rent and causing substantial damage to the premises. On December 10, 1964 the counsel for the tenant made a statement admitting that Ranjit Singh was in arrears of rent as alleged in the application and that he could not pay the amount recoverable from him within one month even if an order under section 15(1) of the Act was made. On the same, date the counsel for the sons of Haji Abdul Jabbar also made a statement giving up the ground of causing substantial damage to the premises and asked for eviction of the tenant on the ground of non-payment of rent only. In view of these statements of the counsel on the opposite sides the Controller passed an order in favor of the sons of Haji Abdul Jabbar and against Ranjit Singh for 'recovery of the possession of the 'premises. The Order was made titider clause (a) of the proviso to sub-section (1) of section 14 of the Act.

(5) Permission to execute the order of the Controller dated December 10, 1964 was graihted by the Competent Authority on February 18, 1965 under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. In March 1965 the sons of Haji Abdul Jabbar applied for execution of the order. On. July 31, 1965 Murari Lal, who had been in occupation ofthe,premises as a sub-tenant from July 1956, raised objections under section 25 of the Act. Under that section an order made by the Controller for the recovery of possession, notwithstanding anything contained in any other law but subject to the provisions of section 18, is binding on all persons who may be in occupation of the premises and the landlord is to be given vacant possession of the premises by evicting all such persons there from. The proviso to the section, however, takes out of its ambit any person who has an independent title to such premises.

(6) The objection taken by Murari Lal was that in fact he was the tenant and was not liable to be evicted in execution of the order against Ranjit Singh. It was mentioned that though the rent deed was executed in the name of Ranjit Singh but possession of the premises was delivered to him by the landlord. Subsequently on September 16, 1966 the objection petition was amended and an alter- ative plea was taken that after termination of the tenancy of Ranjit Singh he (Murari Lal) came to be direct tenant under the decree- holders.

(7) On February 3, 1967 the Controller rejected the plea of Murari Lal that he was the real tenant from the very commencement of the tenancy and that Ranjit Singh was merely a Benamidar. His petition was, however, accepted by holding that Murari Lal and his son were in occupation of the premises in dispute as lawful sub-tenants and on the eviction order being passed against Ranjit Singh on December 10 1964 they became direct tenants under the landlords.

(8) Against the order of the Controller dated February 3, 1967 the sons of Haji Abdul Jabbar filed an appeal to the Rent Control Tribunal. The appeal was accepted on May 20, 1968 on the ground that the sub-tenant could not be deemed to have become a tenant holding directly under the landlords as no notice under section 17(1) of the Act had been given. Thereafter Murari Lal came in second appeal to this Court. The appeal was first heard by P. N. Khanna, J. The learned Judge, however, considered that there was some conflict in the judicial pronouncements and, thereforee, referred the case to a larger Bench. This is how the appeal came to be heard by us.

(9) Arguments were addressed to us on the basis that the appellant had obtained possession of the premises from Ranjit Singh as a subtenant, without the consent of the landlord, in July 1956, but on account of the consent given by the landlord on April 21, 1964 to the keeping of Murari Lal or his son as a sub-tenant the sub-tenancy of the appellant became lawful either from the date he acquired possession as a sub-tenant or at least, from the date of the landlord giving his consent. It was also contended by Shri B. R. Malik, learned counsel for the appellant, that the notice referred to in section 18 is not the same as contemplated by section 17 of the Act and that for changing the position of a sub-tenant into that of a tenant holding directly under the landlord for purposes of section 18 it is sufficient if the landlord has knowledge of the sub-tenancy being a lawful one. In any event it was submitted that the respondents should be deemed to have waived the objection regarding notice under section 17 of the Act.

(10) The Act came into force on February 9, 1959. By its section 57 the Delhi and Ajmer Rent Control Act, 1952, in so far as it was applicable to the Union territory of Delhi, was repealed.

(11) Before the Delhi and Ajmer Rent Control Act came into force, which was with effect from June 9, 1952, a sub-tenancy could be validly created With the consent of the landlord but it was not necessary to obtain a written consent. Experience showed that it was often very difficult to ascertain whether a sub-tenancy was lawfully created. To remove this difficulty while enacting the Delhi Rent Control Act, 1958 it was provided in sub-section (1) of section 16 that where at any time before the 9th day of June, 1952 a tenant had sub-let the Whole or any part of a premises and the sub-tenant was, 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 concerned premises shall be deemd to have been lawfully sub-let. Sub-section (2) of section 16, however, provides that no premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952 without obtaining the consent in writing of the landlord, are deemed to have been lawfully sub-let. Sub-section (3) of that section contains a prohibition that after the commencement of the Act no tenant can, without the previous consent in writing of the landlord sub-let the whole or any part of the premises held by him as a tenant, or transfer, assign his rights in 'the tenancy or in any part thereof.

(12) Section 17 of the Act relating to notice of creation and termination of sub-tenancy is in the following terms:-

'17.(1) Where, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the premises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination. (2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within the month of such termination. (3) Where in any case mentioned in sub-section (2), the landlord contests that the premises were not lawfully sub-let, and an application is made to the Controller in this behalf. either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute.'

(13) In certain cases as provided by section 18 of the Act a sub-tenant is to be deemed to have become a tenant holding directly' under the landlord. The section reads as follows:-

'18.(1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to 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 tenancy had continued. (2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub-tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued'.

(14) It is not possible to accept the contention of the learned counsel for the appellant that the notice referred to in section 18(1) is not the same as has been referred to insection 17 of the Act. Reading sections 16, 17 and 18 together there can be no doubt that the notice referred to in section 18 has only reference to the notice mentioned in section 17. It was so held by 1. D. Dua, C. J. (as his Lordship then was) in Shri Roshan Lalv. Smt, Bhagwati Devi and others 1969 DLT 261. We are in respectful agreement with that view. The mere fact that the expression used in section 18 is 'a notice' it cannot be inferred that it may be a notice other than one contemplated by section 17. It appears to us that adversedly the expression 'a notice' was used. Notices under section 17 may be either under sub-section (1) or sub-section (2). The general expression 'a notice had, thereforee, to be used but, in the context in which the expression has been used, and the scheme of sections 16 to 18 make it clear that the notice referred to insection 18 is no other than the one mentioned in section 17 of the Act.

(15) As a result of the compromise entered into between Haji Abdul Jabbar and RanjitSingh on April 21, 1964 the sub-letting of the premises in favor of Murari Lal has to be deemed to be with the consent in writing 'of the landlord and, thereforee, to be lawful. Though the sub-letting prior to April 21, 1964 .was not lawful it became lawful from that date onwards. Shri M. Ahmed, learned counsel for the sons of Haji Abdul Jabbar, referred to a letter dated June 5, 1964 (Exhibit DHWI/2) written by Ranjit Singh to Haji Abdul Jabbar in which it was mentioned that the permission given for subletting should be regarded to have been cancelled. It was also stated that Murari Lal was not a party to the compromise and there is nothing to show that he had become aware of the contents of paragraph 3 in the compromise prior to the revocation of the consent of the landlord. From this it was tried to be urged that. the sub-letting in favor of. Murari Lal did not become lawful at any stage.

(16) Once the consent had been given in writing by the landlord for Murari Lal or his son being kept as a sub-tenant and subsequent to the giving of that consent Murari Lal continued to occupy the premises the sub-letting in his favor which was prior to April 21, 1964 was unlawful became lawful from that date and could not again become unlawful by any subsequent revocation of the consent. Even if it may somehow be assumed that the consent once given by the landlord could be revoked then it could only be by the landlord and not by the tenant who after the consent in writing was given, allowed the sub-tenant to continue in possession of the premises. It seems to us that the letter written by Ranjit Singh on June 5, 1964 could not operate as revocation of the consent which had been given by the landlord for the keeping of Murari Lal as a sub-tenant in the premises. The premises have, thereforee, to be deemed to have been lawfully sublet to Murari Lal with effect from April 21, 1964.

(17) Though the sub-letting by Ranjit Singh in favor of Murari Lal can be deemed to be lawful from April 21, 1964 yet that did not make Murari Lal a tenant holding directly under the landlord. The effect of the sub-letting being lawful from April 21, 1964 was that the ground of eviction as contained in clause (b) of the proviso to sub-section (1) of section 14 of the Act no longer remained available to the landlord and after his death to his sons for the recovery of possession of the premises from the tenant. As, however, the order for the recovery of possession was obtained by the sons of the original landlord on a ground other than the ground covered by clause (b) of the proviso to sub-section (1) of section 14 of the Act, the mere fact that the sub-letting in favor of Murari Lal has to be deemed to be lawful with effect from April 21, 1964 could not save him from eviction and could not make him a tenant holding directly under the landlords as no notice had been given by him under sub-section (1) of section 17 of the Act within one month of the date from which his sub-tenancy could be 'deemed to have become lawful.

(18) There is ample authority for the view that 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 bedeemed 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 tenancy had continued. Reference has already been made to the case of Roshan Lal (supra). Some of the other cases to which reference may be made in this connection are Ved Parkash v. Rashid and another 1971 DLT 191. Shri Siri Kishan and another v. Shri Mahabir Singh and others 1972 R.C.R. 100 , Deo Raj Gupta v. M/s. Daulat Ram Public Trust and Ors. 1972 R.C.R. 400 . More recently in Shri Raghubir Singh v. Smt. Savitri Devi and others (S.A.O. No. 447 of 1968, decided on 23rd March, 1973) it was observed by the learned Chief Justice of this court as follows :

'APART'from the conclusion as a matter of construction of the relevant provisions of the 1958 Act, there is abundant authority for the proposition that even a deemed lawful subtenant has to serve the requisite notice in order to acquire the status of a tenant and to claim protection from eviction in execution of a decree for eviction passed against the tenant on any of the grounds mentioned in section 14 of the Act.'

(19) In support of the submission that even though no notice of the sub-tenancy had been given by the appellant as required by section 17(1) of the Act but he can still be deemed to have become a tenant holding directly under the landlords, two contentions were raised. It was firstly stated that in reply to the objection raised by the appellant that he had become a direct tenant no plea was taken on behalf of the landlords that notice under section 17 of .the Act had not been given and even when the sons of Haji Abdul Jabbar filed an appeal against the order by which their application for execution of the order of the controller dated February 3, 1967 was dismissed no such ground was taken in the memorandum of appeal. It was urged that the omission to take up the plea amounted to waiver. It was then argued that as the only object of giving a notice under section 17 is to enable the landlord to contest that the premises were not legally sub-let and as Haji Abdul Jabbar had himself given his consent to the keeping of the appellant as a sub-tenant so issue of notice under section 17(1) would have been a pointless formality and for that reason the notice can be deemed to have been waived. In that connection reliance was placed on the judgment of Deshpande, J., in faganNath v. Abdul Aziz and others : AIR1973Delhi9 .

(20) As already mentioned above through his application dated July 31, 1965 the appellant had resisted the application for execution of the order of the Rent Control Tribunal by taking the stand that from the very beginning he was the real tenant as possession of the premises was delivered to him by the landlord though the rent deed was written Benami in favor of Ranjit Singh. In his amended application dated September 16, 1966 he took the alternative plea that after the termination of the tenancy of Ranjit Singh he had become a tenant holding directly under the landlords. In the reply submitted by the landlords (sons of Haji Abdul Jabbar) it was stated that the objector had not 'become direct tenant'. In the appeal filed to the Rent Control Tribunal one of the grounds was that the finding of the Controller that Murari Lal had become a direct tenant under the landlords was erroneous. Thus the claim of the appellant of having become a tenant holding directly under the landlords was disputed by the landlords both before the Controller and the Rent Control Tribunal. Unless the case of the appellant was covered by the provisions of section 18 of the Act he could not be regarded to have become a tenant holding directly under the landlords. As the landlords did not admit his claim that he had become a tenant holding directly under them it was not necessary for them to state in their replies to the applications of the appellant or in their grounds of appeal that no notice under section 17(1) of the Act had been given. When the landlords unequivocally denied and disputed the claim of the appellant that he can be deemed to have become a tenant holding directly under them then it was for him to show that either the requisite notice under section 17(1) of the Act had been given or for any other reason even without giving the notice he could still claim the benefit of section 18 of the Act. Admittedly no notice under section 17(1) of the Act was given by the appellant. The contention raised was that the consent given by Haji Abdul Jabbar on April 21, 1964 to the keeping of the appeallant as a sub-tenant in the premises by implication dispensed with the need for giving notice under section 17(1) of the Act and consequently the requirement of giving the notice will be deemed to have been waived.

(21) In the case Jagan Nath v. Abdul Au^ referred to above, Gian Chand and Nebh Raj were the tenants and Abdul Aziz and Mohd. Usman were the landlords of certain premises. The suit brought by the landlords for the recovery of possession of the premises in dispute was dismissed but on the application of the tenants standard rent was fixed at Rs. 100 per month. The landlords filed an appeal. In that appeal the counsel for the tenants made a statement on December 31, 1954 that the disputed premises were in occupation of Daulat Ram Dogalmal and Jagan Nath as sub-tenants and Nebh Raj as tenant and that the tenants would be paying rent at Rs. 166 per month. The counsel for the landlords accepted the statement made by the counsel for the tenants and on that basis a decree in favor of the landlords for arrears of rent at the enhanced rate was passed. The landlords, however, again applied for eviction of the tenants without impleading the sub-tenants and obtained an order from the Controller on December 31, 1963. Permission of the Competent Authority under the Slum Areas (Improvement and Clearante) Act, 1956 to execute the order of eviction was also obtained. At that stage Jagan Nath applied that he was a lawful, subtenant and had under section 18 of the Act become a direct tenant and was not liable to be evicted from the premises. His contentions failed before the Controller and the Rent Control Tribunal and one of the grounds of their decision was that no notice under section 17(2) of the Act had been given by him. Deshpande, J., while accepting the appeal of Jagan Nath observed as follows :-

'INthe present case, the landlords must be held to have so waived the giving of the notice by the sub-tenant Jagan Nath even before the occasion for giving the notice arose. When the landlords were themselves parties to the agreement of 31-12-1954 and also to the consent decree, it would be a pointless formality for the sub-tenant to give them a notice under section 17(2). For, even if the landlords wanted to deny the sub-tenancy, they were estopped from doing so. For, the only object of the notice was to enable the landlords to deny the subtenancy. But such denial was not available to the landlords because of the agreement of 31-12-1954.'

In another case, Shri Tara Chand v. Mst. Marrium Bi and another 1970 R.C.R. 438 (^) the same learned Judge had, however, observed that on general principles the right of a sub-tenant depends upon the continuance of the right of the tenant but section 18(1) confers a special right on a sub-tenant to become a direct tenant of the landlord after the termination of the tenancy of the tenant provided that such a sub-tenant had complied with the provisions of section 17.

(22) With respect we are unable to agree that if alandlord is unable to deny that the sub-letting of the premises by his tenant to a subtenant was lawful or is for any reason estopped from contesting that the premises were not lawfully sub-let then giving notice by the subtenant under section 17 of the Act is a pointless formality or that the consent that was given in writing by the landlord to the tenant for sub-letting the premises amounts to waiver on his part of notice by the sub-tenant under section 17 of the Act. It would be seen that notice under sub-section (1) of section 17 of the Act can be given, in the prescribed manner and within the period mentioned in the sub-section, by a sub-tenant to whom after the commencement of the Act any premises have been sub-let in whole or in part by the tenant with the previous consent in writing of the landlord'. Under sub-section (2) of section 17 notice can be given, also in the prescribed manner and within the period mentioned in the sub-section, by a sub-tenant to whom before the commencement of the Act any premises were 'lawfully sub-let' in whole or in part by the tenant. Thus except in the rare case of a sub-tenant to whom any premises could be deemed to have been lawfully sublet under the provisions *of sub-section (1) of section 16 of the Act any other sub-tenant in order to exercise the right of giving notice under section 17 must be such to whom the premiss in his occupation were sub-let by the tenant with the consent in writing of the landlord. The object, thereforee, of the notice to be given under section 17 is to confer on a sub-tenant covered by the provisions of subsection (1) or sub-section (2) of that section the special right under section 18 of the Act of being deemed to be a tenant holding directly under the landlord in the event of an order for eviction being made under section 14 of the Act in respect of the premises in his occupation against the tenant but not against him. As it is conceivable that a person giving notice under sub-section (2) of section 17 may not in fact be a sub-tenant to whom any premises may have been lawfully sub-let before the commencement of the Act so in sub-section (3) of section 17 a provision was made for the landlord contesting that the premises were not lawfully sub-let.

(23) In our opinion the provisions of sections 17 and 18 of the Act do not support the view that a landlord who gives his consent in writing to a tenant to sub-let any premises thereby waives notice by the subtenant under sub-section (1) or sub-section (2) of section 17 or where the landlord is unable or is estopped from contesting that the premises were not lawfully sub-let then giving the notice is unnecessary or a pointless formality. Inorder to get the benefit under section 18 of the Act a sub-tenant covered by the provisions of sub-section (1) or sub-section (2) of section 17 must give notice in the prescribed manner and within the permitted period. Even though the premises in occupation of a sub-tenant may have been sub-let to him after the commencement of the Act with the previous consent in writing of the landlord or the premises may have been lawfully sub-let to him before the commencement of the Act, unless the required notice under section 17 is given he cannot claim that under section 18 of the Act from the date of the order for eviction made under section 14 of the Act against the tenant but not against him he should be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. Of course where any premises have been sub-let by a tenant, on or after the 9th day of June, 1952, with the consent in writing of the landlord, clause (b) of the proviso to sub-section (1) of section 14 will not be available to the landlord for obtaining an order against the tenant for the recovery of possession of the premises. When, however, an order for the recovery of possession is obtained by the landlord against the tenant but not against such a sub-tenant on any other ground or grounds as covered by clauses (a) and (c) to (1) of the proviso to sub-section (1) of section 14 of the Act then the sub-tenant if he had not given notice under section 17 cannot claim that under section 18 he has become a direct tenant holding 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 tenancy had continued.

(24) We have no hesitation in holding that the appellant did not become a tenant holding directly under the landlords in respect of the premises in his occupation under the provisions of section 18 of the Act. His objection against eviction was rightly dismissed by the Rent Control Tribunal. His appeal, thereforee, fails and is dismissed with costs. The counsel fee shall be Rs. 150.


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