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Raghunath Rai Vs. Hari Bai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 52 of 1980
Judge
Reported in18(1980)DLT287
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantRaghunath Rai
RespondentHari Bai
Advocates: G.L. Rawal and; K.L. Budhiraja, Advs
Cases ReferredSurendra Nath Bibra v. Stephen Court Ltd. A.I.R. S.C.
Excerpt:
- - thus, the sub-tenant was satisfied of the mala fide intentions of the tenant. if he failed to so pay, an order for recovery of possession shall be deemed to have been passed on the ground of default in payment of arrears as well......in her petition that out of the ground-floor given on rent to raghunath rai, he sublet it to one shyam sunder batra (aw 3), one room and one kitchen at the rate of rs. 25.00 per month, but the exact date of subletting was not known. on 19-1-1973, raghunath rai filed his written statement. he denied the ownership of hari bai and set up the ownership of one hari chand. he further took up the plea that shyam sunder batra was not a sub-tenant. as a matter of fact, due to financial difficulties, he surrendered the disputed portion to the landlady who let it out at rs. 25.00 per month to shyam sunder batra. a replication was filed on 27-2-1973 by her attorney krishan dev. (2) the controller by his order dated 28-3-1973, refused to make an order under sub-section (1) of s. 15 of the delhi.....
Judgment:

M.L. Jain, J.

(1) The facts of this appeal are as follows. A double storeyed house B-45 (Ground-floor) and B-46 (First-floor) in Ramesh Nagar was sold to one Hari Bai by the Managing Officer on August 7, 1973. The certificate of sale was registered on November 28,-1973, but the certificate states that the purchase shall take effect from 11.3.1958. Krishan Dev Dewan (AW 1 ) was the property dealer and through him the appellant Raghunath Rai was inducted as a tenant in the ground-floor (B-45) at the rate of Rs. 38.00 per month. Krishan Dev came to occupy the first-floor (B-46) in 1970. Hari Bai gave a power of attorney on 12.9.1972 in favor of Krishan Dev arid his wife in respect of the whole house. It was also stated in the power of attorney that she had agreed to sell the said property in favor of Krishan Dev. On 23-1 1-1972, Hari Bai filed an eviction petition against tenant Raghunath Rai on several grounds out of which two, mainly default inpayment of rent and subletting, survived. She alleged in her petition that out of the ground-floor given on rent to Raghunath Rai, he sublet it to one Shyam Sunder Batra (AW 3), one room and one kitchen at the rate of Rs. 25.00 per month, but the exact date of subletting was not known. On 19-1-1973, Raghunath Rai filed his written statement. He denied the ownership of Hari Bai and set up the ownership of one Hari Chand. He further took up the plea that Shyam Sunder Batra was not a sub-tenant. As a matter of fact, due to financial difficulties, he surrendered the disputed portion to the landlady who let it out at Rs. 25.00 per month to Shyam Sunder Batra. A replication was filed on 27-2-1973 by her attorney Krishan Dev.

(2) The Controller by his order dated 28-3-1973, refused to make an order under sub-section (1) of S. 15 of the Delhi Rent Control Act, 1958 (hereinafter the Act). But, on appeal, the Tribunal, by its order dated 27-8-1973, directed the tenant to pay rent at the rate of Rs. 13.00 per month from 1-12-1972 to 31-8-1973 within one month and to deposit rent in future by the 15th of each succeeding month.

(3) On 19-1-1974, Hari Bai executed a power of attorney in favor of Dev Raj Bhagat (AW2). On 21-3-1974, Shyam Sunder Batra executed a deed of surrender of the sub-lease in favor of Dev Raj (AW 2), stating that he was a sub-tenant of Raghunath .Rai from 1962-63 on a rental of Rs. 25.00 per month. He came to know that in the eviction proceedings the tenant had taken the false plea that the premises were let to him by the owner. Thus, the sub-tenant was satisfied of the mala fide intentions of the tenant. He even offered to surrender possession to Raghunath Rai, but he refused to accept delivery of possession and thereforee he surrendered possession to the owner of the sub-leased portion of B-45.

(4) In his final order of January 31, 1979, the Addl. Controller upheld the plea of sub-tenancy and as regards arrears of rent directed that the tenant shall pay rent at the rate of Rs. 38.00 per month right from 1-9-1969 minus the payments already made by him. If he failed to so pay, an order for recovery of possession shall be deemed to have been passed on the ground of default in payment of arrears as well.

(5) The Tribunal, upon appeal, by its judgment dated 3-12-1979, upheld the ground of subletting and with regard to non-payment of arrears of rent, it made an order under sub-section (1) of S. 15 of the Act that the tenant , .pay rent at the rate of Rs. 38.00 per month from 1-9-1960 to 31-3-1974 and at the rate of Rs. 13.00 'per month from 1-4-1974 onwards. The appeal of the tenant was dismissed. This is asecond appeal by him.

(6) The findings of fact arrived at by the Tribunal are as follows :-

(1)the whole of the ground-floor (B-45) was given on rent to the appellant Raghunath Rai by Hari Bai, who was the owner of the premises, at the rate of Rs. 38.00 per month ;

(2)in 1962-63, Shyam Sunder Batra was introduced as a sub-tenant at the rate of Rs. 25.00 per month;

(3)Shyam Sunder Batra .surrendered possession of the portion in his sub-tenancy to the respondent.in March 1974; and .

(4)arrears of rent have not been paid since 1969, and hence the aforesaid order with regard to payment of rent.

(7) The learned counsel for the respondent thereforee, urged that these findings of fact cannot be challenged in second appeal, specially when the findings are concurrent and no substantial question of law has been raised in this appeal. The learned counsel for the appellant submits that the findings are not in accordance with law and are rather against the record, Hari Bai has not stated in her petition when the subletting took place, nor has she cared to appear as a witness. The Tribunal went wrong in that while holding that Shyam Sunder Batra was a sub-tenant it split the rent making it payable at Rs. 38.00 per month up to March 1974 and at Rs. 13.00 per month from 1-4-1974 which it was not permitted to do.

(8) I have considered. It appears to me that the finding that the disputed portion was given over by the tenant to Shyam Sunder Batra in subtenancy at the rate of Rs. 25.00 per month cannot be disputed simply because Hari Bai has not entered the witness-box. The tenant himself admitted that the entire ground-floor was leased out to him but then in 1962-63 Shyam Sunder Batra came to occupy some portion thereof. His plea that he had surrendered that portion to the landlady, who in turn rented it out to Shyam Sunder Batra, was rejected by the courts below, mainly for the reason that the tenant himself admitted that he had been sending the rent to the landlady at the rate of Rs. 38.00 per month. I am in ageeement with the reasoning and the findings. thereforee, the ground of subletting is made out within the meaning of cl.(b) of the proviso to sub-section (1)of S. 14 of the Act. Since the portion occupied by the sub-tenant had been taken over by the landlady since 1-4-1974, the rent was required to be apportioned and was rightly done so by the court below in view of Surendra Nath Bibra v. Stephen Court Ltd. A.I.R. S.C. 1361. After the eviction proceedings for the whole of the premises have commenced, if the landlord accepts surrender of possession of some of the premises in occupation of the sub-tenant, then it cannot be considered that a re-adjustment had taken place or for that matter a new tenancy has come into being in relation to the remaining premises in possession of the tenant.

(9) There is no force in appeal. It fails. No costs.


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