Mufti Baha-Ud-Din Farooqi, Ag.C.J.
1. This revision arises out of a suit for the eviction of the defendants from a double storeyed house situate in Jammu city, inter alia, on the ground that the tenant-defendant No. 1 has sublet the house to defendants Nos. 2 to 7 in contravention of the terms of the lease deed dated 4th Bhadoon, 2008 (BK) which expressly provide that the tenant shall not sublet the house or any portion thereof to any person without the permission of the landlord. The defendants have resisted the suit, inter alia, on the ground that the sub-tenants are necessary parties and that the suit is bad because all the sub-tenants have not been impleaded as defendants in it. The trial Court has held that the subletting in this case is a ground of eviction under Clause (c) of Sub-section (1) of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, (shortly 'the Act') which comprehends the creation of unauthorised sub-tenancy by a tenant in the sense that he does it without the permission of the landlord and the inevitable consequence is that the landlord need not make the sub-tenant a party to the suit for eviction based on this ground. The Court has proceeded to observe that the position is not the same under Clause (h) of Sub-section (1) of Section 11 of the Act which comprehends authorised sub-tenancy in the sense that it is permitted by the terms of the lease or otherwise consented to by the landlord and the effect is that the landlord is under an obligation to make the sub-tenant a party to a suit for eviction based on any of the grounds mentioned in this clause. The Court has concluded that, in any view of the matter, the suit cannot be said to be bad because the landlord has already impleaded the subtenants as defendants and, consequently, the controversy is meaningless.
2. The argument of the learned counsel for the revisionist is that the distinction drawn by the trial Court is erroneous. He urged that, irrespective of the fact whether the suit is based upon Clause (c) or Clause (h) of Sub-section (1) of Section 11 of the Act, the subtenant is necessary party. He emphasized that the sub-tenant is a person to whom and the tenant is the person by whom subletting is made and it is immaterial whether such subletting is with or without the consent of the landlord. In order to appreciate and determine the point, it will be necessary to refer to the relevant provisions of the Act. Section 11 (1) of the Act, so far as relevant, reads:--
'11. Protection of a tenant against eviction.-- Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired:
Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession --
(a) ...... .... ..... ...... ...... ...... ....
(c) against a tenant who has sublet the whole or a major portion of the house or shop for more than seven consecutive months:
Provided that if a tenant, who has sublet major portion of the house or shop, agrees to possess as a tenant the portion of the house or shop not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the house or shop sublet and fix proportionately fair rent for the portion kept in possession of such tenant, which portion shall thenceforth constitute house or shop under Clause (3) or Clause (5) of Section 2 and the rent so fixed shall be deemed fair rent fixed under Section 8;(h) Where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held:
Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment.
Explanation.-- The Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant:
Provided where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within Clause (2) or Clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed under Section 8;
(1) Subject to the provisions of Section 12 where tie amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14:Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such notice and the tenant fails to pay or deposit the Raid arrears within the specified period.'
3. Section 11 contains a non obstante clause implying that the grounds of eviction under the Act are not subject to enlargement or curtailment by anything to the contrary contained in any other Act or law in force in the State. It necessarily follows that these grounds of eviction are not equally amenable to variation by the terms of the contract of the parties to the contrary even if the other Act or law countenances such contract. Accordingly it is not material that the landlord has consented or not to the creation of sub-tenancy by the tenant, but what is material is whether such sub-tenancy is countenanced by the Act. In this view, the trial Court has not tried to approach the matter in proper perspective in making the validity of sub-tenancy dependent upon the permission or absence of permission of the landlord. The validity or invalidity of sub-tenancy would really depend upon the fact whether it is permitted or not permitted by the Act. If it is permitted by the Act, then whether the landlord wanted it or not, it would be a valid sub-tenancy and in any suit for ejectment against the tenant, the sub-tenant would be a necessary party. On the other hand, if the sub-tenancy is not countenanced by the Act, then it would be an invalid sub-tenancy and the consent of the landlord would not lend validity to it and in a suit for ejectment by the landlord against the tenant, the sub-tenant would not be a necessary party. In this background, let me proceed to consider Clause (c) of Sub-section (1) of Section 11 of the Act, Clause (c) provides for eviction of a tenant where he has sublet the whole or major portion of the house or shop for more than seven consecutive months. It will be noticed that, in effect and substance, Clause (c) provides for ground of eviction based upon forfeiture of tenancy where the following two conditions are satisfied viz.:
(i) That the tenant has sublet the whole or major portion of the house or the shop, and
(ii) That the period of sub-tenancy has exceeded seven consecutive months. |Thus Clause (c) disentitles a tenant from creating a sub-tenancy, the essential features of I which are that it takes in whole or major portion of the demised premises and moreover extends over a period exceeding seven consecutive months. The sub-tenancy so created a unauthorised by the Act and if the tenant creates such sub-tenancy, whether with or without the consent of the landlord, he runs the risk of being evicted by the landlord and in a suit for eviction based on this ground, whether alone or in conjunction with any other ground, the sub-tenant would not be a necessary party. On the other hand, if the sub-tenancy is of a nature which does not impinge upon Clause (c), the sub-tenancy would be deemed to be a permitted sub-tenancy and in a suit for eviction brought by the landlord against the tenant, on any ground whatsoever, the sub-tenant would be a necessary party, irrespective of the fact whether the landlord had consented or not to the creation of such sub-tenancy. Viewed thus, Clause (h) takes care of a sub-tenancy permitted by the Act in the sense explained above and where the landlord seeks to sue the tenant on any ground mentioned in this sub-clause during the subsistence of such permitted sub-tenancy, the law requires the landlord to make the sub-tenant a party to the suit and enjoins upon the Court to allow him opportunity of contesting the claim of ejectment. The question whether the sub-tenancy is one permitted by the Act or not depends upon the circumstances of each case. In the present case, the trial Court has not thought it necessary to go into this question because of the fact that, in its opinion, the validity or invalidity of sub-tenancy was dependent upon the fact whether it was created with or without the permission of the landlord, and as I have said, this is an erroneous view of law. In the circumstances the order of the trial Court cannot be allowed to stand. It must be set aside and the trial Court must be asked to reconsider the matter and pass fresh orders after keeping in view the principles set out above. Allowing this revision, I make an order accordingly. The parties are directed to appear in the trial Court on 7th April, 1982.