Skip to content


Saremal Ratanchand Vs. Juhar Mal Bhabutmal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 85 of 1973
Judge
Reported inAIR1977Raj85; 1976(9)WLN332
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1)
AppellantSaremal Ratanchand
RespondentJuhar Mal Bhabutmal
Appellant Advocate P. Dave, Adv. for; H.M. Parekh, Adv.
Respondent Advocate Rajesh Balia, Adv.
DispositionAppeal dismissed
Cases ReferredMuni Lal v. Pulara
Excerpt:
.....(control of rent and eviction) act, as to what would happen if the tenant had once sublet the suit premises and then removed the sub-tenant before the issue of notice to quit or before filing the suit. simply because the tenant dislodged the subtenant from the suit premises before the issue of notice or before filing of the suit, he cannot divest the landlord of his right to seek eviction, which had accrued to him. - - --(1) notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this act, unless it is satisfied. or' the relevant words on which..........appellant-tenant, on october 13, 1969, for the recovery of arrears of rent and ejectment from the suit premises. the grounds on which the eviction was sought were three-fold. firstly, that the defendant had committed default in payment of rent for six months; secondly, that the landlord required the suit premises reasonably and bona fide for his personal use; and thirdly, that the tenant had sub-let a part of the demised premises without the permission of the landlord. the defendant resisted the suit. the trial court decreed the suit for eviction solely on the ground that the tenant had sub-let a part of the premises to one moolchand without the premission of the landlord. this finding was upheld by the lower appellate court. the tenant-defendant has now preferred this second appeal.3......
Judgment:

S.N. Modi, J.

1. This is a tenant's second appeal against the judgment and decree passed by the Additional District Judge. Sirohi, dated December 20. 1972, upholding the decree passed by Munsiff, Sirohi, dated December 23, 1971.

2. The suit, out of which this appeal arises, was brought by the respondent-landlord against the appellant-tenant, on October 13, 1969, for the recovery of arrears of rent and ejectment from the suit premises. The grounds on which the eviction was sought were three-fold. Firstly, that the defendant had committed default in payment of rent for six months; secondly, that the landlord required the suit premises reasonably and bona fide for his personal use; and thirdly, that the tenant had sub-let a part of the demised premises without the permission of the landlord. The defendant resisted the suit. The trial court decreed the suit for eviction solely on the ground that the tenant had sub-let a part of the premises to one Moolchand without the premission of the landlord. This finding was upheld by the lower appellate court. The tenant-defendant has now preferred this second appeal.

3. Admittedly, on October 13, 1969, when the present suit for eviction was presented, the sub-tenant was not in occupation of the suit premises or any part thereof. By the time, the suit was filed, the sub-tenant had vacated the permises. He was also not occupying, the suit premises when the notice dated September 19, 1969, terminating the tenancy was sent. But, he was admittedly there occupying the part of the suit premises as sub-tenant when earlier notice dated October 23, 1967 was sent calling upon the appellant to vacte the premises. The above facts are no longer in dispute.

4. Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, provides,--

'13. Eviction of tenant.-- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied.........'

The sub-section then sets out several grounds of ejectment. Clause (e), which is relevant for our purposes, runs as under,

'(e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or'

The relevant words on which emphasis is laid on behalf of the defendant-appellant are 'has sub-let'. It is argued that the use of the present perfect tense in this Sub-clause (e) contemplates a completed event connected in some way with the present time. In other words, it is argued that the words 'has sub-let' suggest that the sub-letting, which was made in the past has continued upto the present time i.e. up to the date of the suit. According to the learned counsel for the appellant, since subletting in the present case did not admittedly continue up to the date of the suit, the tenant cannot be deprived of the protection under Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and he cannot be evicted from the suit premises on the ground of his having sub-let the part of the suit premises without the permission of the landlord. In support of his contention, the learned counsel for the appellant has placed reliance on the decision in Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291 and Lekh Ram v. Firm Chander Bhan Rajinder Parkash, ILR (1962) 1 Punj 641. On the basis of these authorities, it is strenuously argued that the words 'has sub-let' in Clause (e) of Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, meant that sub-letting in order to attract Clause (e) of Sub-section (1) of Section 13 must subsist at the date of the suit.

5. The Supreme Court considered Gappulal's case in its subsequent decision in Gajanan Dattatraya v. Sherbanu Hosang Patel 1976 Ren CR 33 = (AIR 1975 SC 2156). On detailed consideration of the decision in Gappulal's case, AIR 1969 SC 1291, their Lordships of the Supreme Court in unequivocal words observed that in Gappulal's case,

'the court did not consider the question as to whether sub-letting to be within the mischief of the relevant statute was to subsist at the date of the suit'. Their Lordships further added that in Gappulal's case what was decided was that 'Section 13 (1) (e) of the Rajasthan Act would include any sub-letting which though made in the past would continue at the point of the time when the Act came into force.'

Relevant discussion of Gappulal's case, runs as under,--

'The appellant relied on a decision of this Court in Gappulal v. Thakurji Shriji Dwarkadheeshji in support of the proposition that the words 'has sub-let' mean that the sub-letting is to subsist at the date of the suit. This Court in Gappulal's case considered Section 13 (1) (e) of the Rajasthan Premises (Control of Rent andEviction) Act, 1950. Section 13 (1) (e) of the Rajasthan Act provides that no decree evicting the tenant shall be passed unless the Court is satisfied '(e) that the tenant has assigned, sublet or otherwise parted with the possession of the whole or part of the premises, without the permission of the landlord'.

The High Court in Gappulal's case, held that two shops were sublet after Oct. 15, 1947 when the Jaipur Rent Control Order, 1947 came into force. Sub-letting was a ground for ejectment under paragraph 8 (1) (b) (ii) of the Jaipur Rent Control Order, 1947. The High Court held that the tenant's liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

This Court said that the High Court was in error that there was one 'integrated tenancy' for six shops. The facts found were that four shops were let out in 1944 and two shops were let out after 1945. This Court found that the High Court was in error in holding that two shops were sublet after 15 October, 1947.

This Court held that the plaintiffs in Gappulal's case did not establish that the subletting was after 15 October, 1947 and on the date of the subletting in 1944, no Rent Control Legislation was in force. It is in that context that it is said that the words 'has sublet' contemplate a completed event connected in some way with the present time. This Court said that the words 'has sublet' take within their sweep any subletting which was made in the past and has continued upto the present time. What is meant by these observations is that the vice of subletting which fell within the mischief of the Act continues to be a mischief within the Act. In Gappulal's case there was no subletting in 1947 to violate the 1947 Jaipur Rent Control Order and therefore, there could not be any subletting which could continue upto the 1950 Rajasthan Act.

On the date of the subletting in 1944, this Court found in Gappulal's case that there was no Rent Control Legislation in force. This Court did not consider the question as to whether subletting to be within the mischief of the relevant statute was to subsist at the date of the suit. This Court held that Section 13 (1) (e) of the Rajasthan Act would include any subletting which though made in the past would continue at the point of the time when the Act came into force.'

6. Their Lordships in Gajanan's case, (AIR 1975 SC 2156) were dealing with a case under Section 13 (1) (e) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, which ran as under,--

'13 (1) (e). That the tenant has, since the coming into operation of this Act, unlawfully sublet or after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, unlawfully given on lease, the whole or part of the premises or assigned or transferred in any other manner his interest therein.'

On the basis of Gappulal's case. (AIR 1969 SC 1291) it was argued before the Supreme Court in Gajanan's case, that the expression, 'the tenant has sublet', in Section 13 (1) (e) of the abovementioned Act, meant that the subletting must continue at the date of the suit for passing the decree. In Gajanan's case, the facts were like this. The landlord gave notice to quit on April 1, 1967, and sub-tenant vacated the premises on April 14, 1867. When the suit was filed, the sub-tenant was not in occupation of the suit premises. Dealing with the argument that the expression 'the tenant has sublet' means that sublet must continue on the date of the suit, their Lordships observed,

'The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of Section 13 (1) (e) namely, that he has sublet. The language is that if the tenant has sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant vacates. The landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub-tenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted (underlining is mine).

7. The language of Clause (e) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, quoted above, leaves no doubt in my mind, that on proof of the fact that the tenant has assigned or sublet or otherwise parted with the possession of whole or a part of the premises in question without the permission of the landlord, the landlord is entitled to a decree for eviction against the tenant unless, of course, it could be shown that the landlord had waived his right to such eviction. The question, therefore, whether the sub-tenancy subsisted on the date of the suit, is of no relevance in such a case. The provisions of the Rajasthan Act of 1950 do not provide expressly or impliedly that protection under Section 13 (1) (e) shall be available only if sub-tenancy subsisted at the date of the suit. Apart from the Supreme Court's decision in Gajanan's case, AIR 1975 SC 2156 which supports my view. I am also supported by an unreported Single Bench decision of this Court delivered by Hon'ble Mr. Justice P. N. Shinghal, as he then was, in Second Appeal No. 76 of 1964 (Alakh Narain v. Hari Shanker) decided on 13-9-1964.

8. Learned counsel for the appellant next drew my attention to the following sentence appearing in the decision of Gajanan's case, (AIR 1975 SC 2156).

'At the date of the notice, if it isproved that there was unlawful subletting, the tenant is liable to be evicted'. On the basis of the above sentence, the learned counsel for the appellant attempted to persuade me to hold that the expression 'the tenant has sublet' means that the subleting must continue at the date of the notice at least. I find no substance in the above contention. Their Lordships of the Supreme Court in Gajanan's case have clearly, in unequivocal terms, laid down that 'the tenant's liability to eviction arises once the fact of unlawful subletting is proved'. Their Lordships in the subsequent sentence referred to the date of notice because in that particular case, the sub-tenant had vacated the premises after the notice was sent to him. To my mind, in Gajanan's case the Supreme Court did not consider the question as to whether subletting to be within the mischief of the relevant statute, was to subsist at the date of the notice. On the contrary, the Supreme Court, in clear terms, laid down that on the language of the statute, it is clearthat if the tenant had sublet, the protection under Section 13 ceases.

9. The facts of the present case clearly reveal that the first notice was sent to the tenant on October 23, 1967 calling upon him to vacate the premises and admittedly on that date, the sub-tenant was in unlawful occupation of a part of the premises in dispute. It is true that the sub-tenant vacated the premises when the second notice dated September 19, 1969 was sent by the landlord, but that is of no consequence. The tenant neither pleaded nor proved that during the interval, the landlord had waived his right to sue for eviction on the ground of unlawful subletting.

10. The learned counsel for the appellant referred to me the case of Lekh Ram v. Firm Chander Bhan Rajinder Parkash, (ILR (1962) 1 Punj 641). This is a decision by a learned Single Judge of the Punjab High Court. The wordings of Section 13 (2) (ii) (a) of the East Punjab Urban Rent Restriction Act, which came for consideration in that case, were to the effect that if it could be shown that 'the tenant has after the commencement of this Act, without the written consent of the landlord.........sublet the entire building.........or, anyportion thereof,' the landlord would be entitled to evict the tenant by a petition before the Rent Controller. The Rent Controller and the Appellate Authority in that case came to the conclusion that although it was not made explicit in the relevant provisions of the law, it was nevertheless implied that subletting, which has to form the ground for ejectment, must be one which subsisted at the time of the filing of the petition. This view also found favour with the learned Single Judge. With great respect, the view taken by the learned Single Judge in Lekh Ram's case, cannot be regarded as sound, firstly, because there is nothing in the clause to justify such a conclusion, and secondly, such an interpretation would be wholly unworkable in the sense that the tenant may so ad-just the matters with the sub-tenant that the sub-lease may not subsist on the date of the petition. To my mind, it could not be the intention of the Legislature to recognise such a device and more so when there is nothing in the wordings of the relevant section to give such a meaning. That apart, the view taken in Lekh Ram's case, is contrary to the view taken by the Supreme Court in Gajanan's case, (AIR 1975 SC 2156). Lekh Ram's case,in these circumstances, cannot be of anyassistance to the appellant.

11. The learned counsel for the appellant has also placed reliance on a recent decision of the Delhi High Court in Muni Lal v. Pulara, 1976 Ren C. J. 249 (Delhi). The question in that case was that if before the date of service of notice, determining the tenancy of the tenant, the sub-tenant vacates the premises, will the court, even then, pass an order of eviction against the tenant? In that case, the learned Single Judge was interpreting Clause (b) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958, which runs as under,--

'(b) That the tenant has, on or after 9th day of June, 1972, sublet, assigned or otherwise parted with possession of the whole or any part of the premises without obtaining consent in writing of the landlord.'

In that case, it was argued on behalf of the tenant that since he had removed the sub-tenant before the notice to quit was issued, he was not liable to be evicted. The learned Single Judge placing reliance on the passage appearing in Gajanan's case AIR 1975 SC 2156 which has been quoted above in extenso, observed:

'The relevant date, it would therefore, appear, is the date of the notice. If it is proved that on that day, there was unlawful subletting, the tenant is liable to be evicted.'

With great respect to the learned Judge, I do not think that in Gajanan's case, AIR 1975 SC 2156 their Lordships at all considered the question that sub-tenancy must subsist on the date of the notice if the tenant has to be evicted on the ground of unlawful sub-letting.

12. I may again mention here that the act of sub-letting, in the present case, was a voluntary act of the defendant, as, admittedly, the subletting was not with the permission of the landlord. In such a case, once liability for eviction has arisen under Section 13 on account of the tenant having sublet the premises unlawfully without the permission of the landlord, then the right to sue for eviction accrues to the landlord and that right could be taken away only by an express provision of the statute or by necessary intendment. There is nothing in the Rajasthan Premises (Control of Rent and Eviction) Act, as to what would happen if the tenant had once sublet the suit premises and then removed the sub-tenant before the issue of notice to quit or before filing the suit. Simply because the tenantdislodged the sub-tenant from the suit premises before the issue of notice or before filing of the suit he cannot divest the landlord of his right to seek eviction, which had accrued to him.

13. For the reasons, stated above, I find no substance in the above appeal. The appeal is accordingly dismissed. Having regard to the circumstances of the case. I leave the parties to bear their own costs in this court.

14. The learned counsel for the appellant prays for grant of leave to appeal to a Division Bench. I find no merit in the prayer and as such it is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //