Mahabir Prasad Verma Vs. Dr. Surinder
Kaur [1982] INSC 45 (7 April 1982)
SEN, AMARENDRA NATH (J) SEN, AMARENDRA NATH
(J) PATHAK, R.S.
CITATION: 1982 AIR 1043 1982 SCR (3) 607 1982
SCC (2) 258 1982 SCALE (1)299
CITATOR INFO :
E 1991 SC2053 (16,18)
ACT:
Landlord and tenant-East Punjab Urban Land
Restriction Act, 1949-Section 13(2) (ii) (a)-Scope of-Sub-tenant induced in a
portion of the premises with the permission of landlord-Whether such subletting
became unlawful on determination of tenancy-Tenant, if liable to be evicted
Evidence-Tape recorded evidence only corroborative in nature.
HEADNOTE:
Section 13(2) (ii) (a) of the East Punjab
Urban Land Restriction Act 1949 provides that if a tenant has, after the
commencement of the Act, without the written consent of the landlord sub-let
the entire building or any portion thereof the tenant shall be liable to be
evicted on the ground of such sub-lotting.
The Act was made applicable to the Union
Territory of Chandigarh from November 1972.
The respondent landlady filed a petition
before the Rent Controller alleging that The tenant had sub-let a portion of
the premises under his occupation in breach of section 13(2) (ii) (a) of the
Act and that therefore he was liable to be evicted. The Rent Controller ordered
his eviction. The tenant's appeal to the Appellate Authority and later revision
petition to the High Court were l? dismissed .
In the tenant's special leave petition, this
Court directed the Rent Controller to record a finding whether the tenant had
sub-let any portion of the premises after April 1974. The Rent Controller found
that a portion of the premises was sub-let by the tenant in May 1974.
On the question (I) whether the existence of
the sub- tenant in the premises after the expiry of the contractual tenancy
necessarily rendered the sub-letting illegal and furnished a ground for
eviction within the meaning of section 13(2) (ii) (a) of the Act (2) whether
the sub- letting by the tenant with the written consent of the land- lady
during the currency of the tenancy became unlawful and illegal on the
determination of the tenancy and furnished a ground for eviction within the
meaning of the section.
608 Allowing the petition,
HELD: 1. There is no evidence on record to
justify the finding of the Rent Controller that the tenant had sub-let a
portion of the premises in May 1974. [623 E] 2.. The tenant has not sub-let any
portion of premises without the consent of the land-lady after the commencement
of the Act and therefore the landlady had no ground for eviction of the tenant
on the ground of sub-letting within the meaning of the section. In the instant
case the written consent to sub-let a - portion of the premises as required by
the statute had been given by the landlady to the tenant and it was in terms of
that authority that the tenant had inducted a sub-tenant in April 1974 when the
contractual tenancy was subsisting. Therefore the sub-letting did not afford
any ground for eviction of the tenant on the ground of subletting. [626 F-H]
3. The crux of the matter is that if after
the commencement of the Act, the tenant has lawfully sub-let a portion of the
premises with the written consent of the landlord, the sub-tenant becomes a
lawful sub-tenant and becomes a "tenant" within the meaning of the
Act with the tenant as his landlord and continues to enjoy all the protection
available to a tenant under the Act. The tenant who inducts such sub-tenant is
not entitled to evict him as landlord of the subtenant except in accordance
with the provisions of the Act. [624 E-G] 4 The argument of the land-lady that
on the expiry of the month of April her consent had stood withdrawn is of no
consequence because in the instant case the tenant has sub- let a portion of
the premises in April 1974 when admittedly the written consent of the land-lady
was in existence The continuance in possession of such sub-tenant in a portion
lawfully let out to him on the expiry of the month of April did not amount to
or have the effect of any fresh sub- letting by the tenant at the end of April.
A lawful sub- letting on the basis of the provisions of the Act does not become
unlawful merely because the contractual tenancy of the tenant comes to an end.
[625 F-H] 5 (a). Tape-recorded conversation between the husband of the landlady
and the tenant on which the Rent Controller had relied could only be
corroborative evidence of conversation deposed to by any of the parties. In the
absence of any such evidence the tape-recorded conversation cannot be proper
evidence and cannot be relied upon. [623 E- F] (b) That apart, the
tape-recorded evidence indicated that on the expiry of the term of the tenancy,
the land-lady had not merely accepted the rent but had manifested her intention
of continuing the tenancy notwithstanding the expiry of the term. The evidence
also showed that the husband of the land-lady asked the tenant to induct
suitable persons as sub-tenants under him. [623 G-H]
CIVIL APPELLATE JURISDICTION . Civil Appeal
NO. 1 830 of 1978.
609 From the Judgment and order dated the
19th September, A 1978 of the High Court of Punjab & Haryana at Chandigarh
in Civil Revision No. 1398 of 1978.
V.M. Tarkunde and H.K. Puri for the
appellant.
T.U. Mehta, N.D. Garg, Rajiv Garg and S.B.
Bisaria for the respondent.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. Whether on a proper construction C of the terms of
tenancy and the provisions of the East Punjab Rent Restriction Act, 1949, the
appellant is liable to be evicted from the premises in his- occupation as
tenant, on the ground of wrongful sub-letting of the premises, is the question
which falls for consideration in this appeal by special leave granted by this
Court.
The appellant came into occupation of the
shop-cum-flat No. 48, Sector 3-C, Chandigarh on and from 1st of April, 1974 as
a tenant under the respondent who happens to be the owner of the said premises
on terms and conditions contained in the rent-note dated 2 4.1974. For the sake
of convenience we shall describe the appellant as the tenant and the respondent
as the landlady of the premises.
The landlady filed her present petition (R.A.
No. 163 of 1977) in the Court of Rent Controller Chandigarh, under S. 13 of the
East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the
Act) for the eviction of the tenant on two grounds, namely, non-payment of rent
and sub- letting of the flat portion and Barsati portion of the premises. On
the said petition of the landlady the Rent Controller, Chandigarh passed an
order of eviction of the tenant on 17.11.1977 only on the ground of
sub-letting. The other ground, namely non-payment of rent by the tenant, did
not S succeed.
Against the order of the Rent Controller, the
tenant filed an appeal under S. 15 of the Act before the Appellate Authority.
The Appellate Authority by its judgment dated 9.8.1978 dismissed the appeal of
the tenant and upheld the order of eviction passed by the Rent Controller.
610 Against the judgment and order of the
appellate authority, the tenant filed a revision petition under S. 15 of the
Act before the High Court of Punjab and Haryana at Chandigarh. The High Court
by its judgment dated 19.9.78 dismissed the said petition. Aggrieved by the
judgment and order of the High Court, the tenant has filed this appeal with
special leave granted by this Court, challenging the correctness of the
decision ordering the eviction of the tenant from the said premises on the
ground of sub-letting.
Before we proceed to consider the arguments
advanced from the Bar, it will be convenient to set out the terms of tenancy
contained in the rent note dated 2.4.1974 and also the relevant provisions of
the Act.
The relevant terms contained in the rent note
read as .
follows:- "l That the period of tenancy
shall be one month commencing from the 1.4.1974 to 30.4.1974.
2. That rent hereby fixed shall be Rs. 450/-
p m.
x x x x x x x x
4. That the possession of the said premises
has already been received by the tenant from the owner.
x x x x x x x x x x x x
8. That the tenant has a right to sub-let the
flat portion and Barsati portion of this said SCF above mentioned.
x x x x x x x x
14. At the expiry of the tenancy the tenant
shall redeliver the vacant possession of the said premises to the 611 owner in
the original condition failing which he shall be liable to pay the mesne
profits." The relevant provisions of the Act are contained in S.
13 of the Act, the material provisions of
which may be noted:
"13. (1) A tenant in possession of
building or rented land shall not be evicted therefrom in execution of a decree
passed before or after the commencement of this Act or otherwise and whether
before or after the termination of the tenancy, except in accordance with the
provisions of this section, or in pursuance of an order made under section 13
of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.
(2) A landlord who seeks to evict his tenant
shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a
reasonable opportunity of showing cause against the applicant, is satisfied-
(i) that the tenant has not paid or tendered the rent due by him in respect of
the building or rented land within fifteen days after the expiry of the time
fixed in the agreement of tenancy with his landlord or in the absence of any
such agreement, by the last day of the month next following that for which the
rent is payable;
Provided that if the tenant on the first
hearing of the application for ejectment after due service pays or tenders the
arrears of rent and interest at six per cent per annum on such arrears together
with the cost of application assessed by the Controller, the tenant shall be
deemed to have duly paid or tendered the rent within the time aforesaid.
(ii) that the tenant has after the
commencement of this Act without the written consent of the landlord- (a)
transferred his right under the lease or sub- let the 612 entire building or
rented land or any portion thereof; or x x x x x x x x In the instant case,
there is no dispute that the tenant had sub-let the Flat portion and Barsati
portion of said premises to sub-tenants. There is, however, a dispute as to
when the sub-tenants were inducted by the tenant. As no clear finding had been
recorded in the judgment of the Rent Controller or of the Appellate Authority
or the High Court as to when the subtenants were inducted, and as there is no
finding as to whether the tenant had sub-let any portion after the month of
April, 1974, this Court passed an order on the 24th of November, 198 l
remitting the following issue to the Rent Controller, Chandigarh for a finding
:- "Whether any one or more of the sub-tenancies alleged by the
Landlady-respondent were created by the tenant-appellant during the month of
April, 1974 or it was only thereafter that the sub-letting took place ?"
This Court while passing the said order, further directed that the Rent
Controller would permit the parties to lead evidence on the point and would
render his findings after taking into consideration the evidence already on
record and any additional evidence that might be led.
Pursuant to the said order passed by this
Court, the Rent Controller after taking further evidence had recorded his
finding on this issue. The finding of the Rent Controller is that there was
sub-letting of a small bed-room in the flat portion and also of the Barsati
portion by the tenant also in the month of May. This finding of the Rent
Controller has been disputed before us by the tenant.
Mr. Tarkunde, learned counsel appearing on
behalf of the tenant, has submitted that in view of the express authority given
to the tenant as contained in cl. 8 of the rent note to sub-let the flat
portion and the Barsati portion which portions had, in fact, been 613 sub let
by the tenant, there can be no question of wrongful and illegal sub letting by
the tenant of the said portions, as the sub-letting is with the written consent
of the land- lady; and the provisions contained in S. 13 (2) (ii) (a) can have
no application and there can be no ground or cause of action for eviction of
the tenant on the ground of sub- letting within the meaning of the said
provision. Mr. Tarkunde has argued that the Act was made applicable to
Chandigarh from 4.11.1972 and the tenancy was created in April, 1974 long after
the act had come into operation in Chandigarh and had become applicable to the
premises in question. lt is Mr. Tarkunde's argument that in view of the
prohibition on sub-letting without the consent of the landlord in writing
contained in the Act, the landlady in the instant case has in writing expressly
authorised the tenant to sub-let the flat portion and the Barsati portion of
the said promises, so that the tenant does not come within the mischief of the
said provision. Mr. Tarkunde contends that it is not in dispute that the tenant
had sublet the flat portion and the Barsati portion of the premises in terms of
the authority given to the tenant in writing and as the sub-letting has been
done by the tenant with the written consent of the landlady after the
commencement of the Act and of the portions the tenant was authorised to
sub-let, there can be no violation of the provisions of S. 13 (2) (ii) (a) of
the Act. It is the contention of Mr. Tarkunde that as the subletting was done
by the tenant in terms of the written authority given by the landlady to the tenant,
the subletting can constitute no ground for eviction of the tenant within the
meaning of the said section of the Act and there can be no order of eviction of
the tenant on the ground of subletting by the tenant. Mr. Tarkunde has
submitted that the High Court has proceeded on the basis that the sub-tenants
had continued in occupation after the month of April, 1974, and as the terms of
contractual tenancy ended on the expiry of the month of April, 1974, the
continuance of sub-tenants inducted with the written consent of the landlady
after the month of April, became unauthorised and illegal and resulted in
subletting without the written consent of the landlady and as such the
provision contained in S. 13 (2) (ii) (a) became applicable and the tenant became
liable to eviction on the ground of wrongful subletting within the meaning of
the said provision. Mr. Tarkunde, in this connection, has commented that the
view taken by the Punjab and Haryana High Court is that if the sub-tenants,
though lawfully inducted? continue to be in possession 614 after the expiry of
the lease of the tenants, such sub- letting becomes unlawful and furnishes a
ground for eviction of the tenant. In this connection, Mr. Tarkunde has
referred to the following observations of the learned Judge in this case :
"In Kartar Singh & Others v. Tarlok
Singh & Others Pandit, J. held that the permission given by the landlord to
the tenant to have sub-tenants during the currency of the lease is of no avail
after the termination of the tenancy and if the sub-tenants continue on the
property even after the expiry of the lease, the tenant was guilty of
sub-letting without the written permission of the landlord".
Mr. Tarkunde has submitted that this view of
the High Court on the basis of which the order for eviction has been upheld is
clearly erroneous. Drawing our attention to the relevant provisions contained
in S. 13 (2) (ii) (a) of the Act, Mr. Tarkunde has submitted that the statute
only forbids sub- letting without the written consent of the landlord after the
commencement of the Act and by necessary implication the statute permits
sub-letting by the tenant with the written consent of the landlord. Mr.
Tarkunde contends that if the sub-tenants are inducted by the tenant with the
written consent of the landlord, the sub-letting is authorised and legal and
the continuance of the sub-tenant thereafter cannot be considered to be
unlawful or illegal on the ground that the tenancy of the tenant had come to
end, as the sub- tenants continue to enjoy possession in their own right as
sub-tenant and the tenant who has inducted the sub tenants cannot and does not
enjoy any power or authority of evicting the sub-tenant except in due process
of law. In this connection Mr. Tarkunde has drawn our attention to the
definition of 'landlord' and also of 'tenant' as given in S.
2 (c) and (i) of the Act.
The definition of the landlord as given in S.
2 (c) is as follows :
" 'landlord' means any person for the
time being entitled to receive rent in respect of any building or rented land
whether on his own account or on behalf, or for the benefit, of any other
person, or administrator for any other 615 person, and includes a tenant who
sub-lets any building or rented land in the manner hereinafter authorised, and,
every person from time to time deriving title under a landlord".
The definition of tenant as mentioned in S. 2
(i) reads:
" 'tenant' means any person by whom or
on whose account rent is payable for a building or rented land and includes a
tenant continuing in possession after the termination of the tenancy in his
favour, but does not include a person placed in occupation of a building or
rented land by its tenant, unless with the consent in writing of the landlord,
or a person to whom the collection of rent or fees in a public market, car-
stand or slaughter-house or of rents for shops has been farmed out or leased by
a municipal town or notified area committee".
Mr. Tarkunde argues that the definition of
landlord clearly indicated that a 'landlord' within the meaning of the Act
includes a tenant who sub-lets with lawful authority and the definition of
'tenant' within the meaning of the Act also includes a sub-tenant who has been
lawfully inducted.
Referring to these definitions Mr. Tarkunde
has submitted that as soon as the tenant has lawfully sub-let the portions to
the sub-tenants the tenant in the instant case becomes a 'landlord' within the
meaning of the Act and the sub-tenant lawfully inducted becomes a tenant under
him within the meaning of this Act and the provisions of the Act are applicable
to them. Mr. Tarkunde argues that by virtue of the aforesaid definitions, a
tenant continues to be in possession after the termination of the tenancy in
his favour, remains a tenant within the meaning of the Act and continues to
enjoy all the benefits of the Act. It is the argument of Mr. Tarkunde that the
sub-tenants lawfully inducted must, therefore, be considered to be in lawful
possession under the tenant as the landlord and the sub- tenant must also be
held to be entitled to remain in possession after the expiry of the term and
the termination of the tenancy, whether of the tenant or of the subtenant, by
virtue of the provisions of the Act.
Mr. Tarkunde has next contended that though
in the instant case the tenancy was granted for the month of April, the tenant
on the expiry of the said period is entitled to continue to remain in 616
possession and enjoyment of the premises by virtue of the provisions contained
in the Act. It is the contention of Mr.
Tarkunde, that even on the expiry of the
contractual period of tenancy, the tenancy continues under the provisions of
the Act and the tenancy continues on the same terms and conditions. In support
of this contention Mr. Tarkunde has relied on the decision of this Court in the
case of V.
Dhanapal Chettiar v. Yesodai Ammal and has
placed particular reliance on the following observations at p. 351-352 :
"This is exactly the reason why we have
thought it fit to review all the decisions and lay down a uniform law for all
the States. Section 10 (1) of the Andhra Pradesh Act provided that "A
tenant shall not be evicted whether in execution of a decree or otherwise
except in accordance with the provisions of this section or sections 12 and 13.
"A special provision in the Andhra Act was contained in section 10 (7)
which says :
'Where an application under sub-section (2)
or sub section (3) for evicting a tenant has been rejected by the Controller,
the tenancy shall, subject to the provisions of this Act, be deemed to continue
on the same terms and conditions as before and shall not be terminable by the
landlord except on one or more of the grounds mentioned in sub-section (2) or
sub-section (3).
This special provision is provided by way of
abundant precaution only. Even without this a tenant continuing in possession
after the termination of the contractual tenancy and until an eviction order is
passed against him continues on the same terms and conditions as before and he
cannot be evicted unless a ground is made out for the eviction according to be
the State Rent Act." Relying on the aforesaid observations, Mr. Tarkunde
has argued that even on the expiry of the contractual tenancy in the month of
April, the tenant continues to be a tenant under the statute on the same terms
and conditions as a statutory tenant 617 and be continues to enjoy the
authority of subletting of the flat portion and the barsati portion of the said
premises in terms of the agreement originally entered into by and between the
tenant and the landlady. It is the argument of Mr. Tarkunde that contractual
tenancy in the instant case is determined by efflux of time but the tenant is
protected against his eviction by statute and as a statutory tenant, the tenant
continues to enjoy the same right of sub-letting which he had as contractual
tenant and the said right of the tenant is not lost on the determination of the
contractual tenancy. In this connection. Mr. Tarkunde has referred to the
decision of this Court in the case of Damadilal and others v. Parashram and
others and he has relied on the following observations at pp. 653-654 :-
"We find it difficult to appreciate how in this country we can proceed on
the basis that a tenant whose contractual tenancy has determined but who is
protected against eviction by the statute, has no right of property but only a
personal right to remain in occupation, without ascertaining what his rights
are under the statute. The concept of a statutory tenant having no estate or
property in the premises which he occupies is derived from the provisions of
the English Rent Acts. But it is not 13 clear how it can be assumed that the
position is the same in this country without any reference to the provisions of
the relevant statute. Tenancy has its origin in contract. There is no dispute
that a contractual tenant has an estate or property in the subject matter of
the tenancy, and heritability is an incident of the tenancy. It cannot be
assumed, however, that with the determination of the tenancy his status of
irremovability and not the estate he had in the premises in his occupation. It
is not possible to claim that the 'sanctity' of contract cannot be touched by
legislation. It is, therefore, necessary to examine the provisions of the
Madhya Pradesh Accommodation Control Act, 1961 to find out whether the
respondents' predecessors-in-interest retained a heritable interest in the
disputed premises even after the termination of their tenancy.
618 Section 2 (i) of the Madhya Pradesh
Accommodation Control Act, 1961 defines 'tenant' to mean, unless the context
otherwise requires:
'a person by whom or on whose account or
behalf the rent of any accommodation is, or, but for a contract express or
implied, would be payable for any accommodation and includes any person
occupying the accommodation as a sub-tenant and also any person continuing in
possession after the termination of his tenancy whether before or after the
commencement of this Act; but shall not include any person against whom any
order or decree for eviction has been made'.
The definition makes a person continuing in
possession after the determination of his tenancy a tenant unless after a
decree or order for eviction has been made against him, thus putting him on par
with a person whose contractual tenancy still subsists. The incidents of such
tenancy and a contractual tenancy must therefore be the same unless any
provision of the Act conveyed a contrary intention. That under the Act such a
tenant retains an interest in 13 the premises, and not merely a personal right
of occupation, will also appear from section 14 which contains provisions
restricting the tenant's power of sub-letting. Section 14 is in these terms:
'Sec. 14. Restrictions on sub-letting:-(1) No
tenant shall, without the previous consent in writing of the landlord- (a)
sub-let the whole or any part of the accommodation held by him as a tenant; or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the
payment of any sum as premium or pugree or claim or receive any consideration
whatsoever in cash or in kind for giving his consent to the sub-letting of the
whole or any part of the accommodation held by the tenant.' 619 There is
nothing to suggest that this section does not apply to all tenants as defined
in section 2(i). A contractual tenant has an estate or interest in premises
from which he carves out what he gives to the sub-tenant. Section 14 read with
section 2 (i) makes it clear that the so-called statutory tenant has the right
to sub-let in common with a contractual tenant and this is because he also has
an interest in the premises occupied by him." Mr. Tarkunde has further
submitted that in the instant case the question of any sub-letting by the
tenant on the expiry of the term of tenancy does not really arise, as the
tenant had sub-let the flat portion and also the barsati portion in the month
of April in terms of the written consent of the landlady, while the contractual
tenancy was subsisting and in force. It is his submission that the finding of
the Rent Controller that the tenant had sub-let one bed room in the fiat
portion and also the barsati portion in the month of May, in answering the
issue remitted to him by this Court, is clearly erroneous and not borne out by
the evidence on record. Mr. Tarkunde has argued that the Rent Controller in
arriving at this finding has mainly relied on the tape-recorded conversation
between the tenant and landlady's husband who also happens to hold the power of
attorney of the landlady. He has argued that rendering of the tape-recorded
conversation can be legal evidence by way of corroborating the statement of a
person who deposes that the other speaker and he carried out that conversation
or even of the statement of a person who deposes that he over- heard the
conversation between the two persons and what they actually stated, had been
tape-recorded. It is his argument that tape-recorded conversation may be used
only as a corroborative evidence of such conversation deposed to by any of the
parties to the conversation and in the instant case in the absence of any such
evidence the tape-recorded conversation is indeed no evidence and cannot be
relied upon. Mr. Tarkunde, in support of this argument has relied on the
decision of this Court in the case of S. Pratap Singh v. The State of Punjab.
Mr. Tarkunde has further argued that even if reliance is to be placed on the
tape-recorded conversation, it must then be held on the basis of the evidence
recorded therein that the contractual tenancy had continued beyond the period
of the 620 month of April. According to Mr. Tarkunde, in the present case the
landlady had not merely accepted the rent which the landlady bad in fact done,
on the expiry of the contractual period of tenancy, but the tape-recorded
conversation clearly indicates that the tenancy was treated as continuing
between the parties, notwithstanding the expiry of the period and the tenant
was recognised as tenant with lawful authority to sub-let even after the expiry
of the month of April, 1974.
Mr. Tarkunde on the basis of the aforesaid
contention has submitted that the order of eviction against the tenant on the
ground of subletting in the instant case is erroneous and should be set aside.
Mr. Mehta, learned counsel appearing on
behalf of the landlady, has submitted that the tenancy, in the instant case was
created only for the month of April, 1974. He submits that on the expiry of
April, 1974, the tenancy by efflux of time stands determined and the agreement
between the parties comes to an end. He has argued that though under the terms
of tenancy, the tenant had been given the necessary permission and authority to
sub-let, such consent or authority would remain valid only for the month of
April and there could lawfully be any sub-tenants only for the month of April. He
contends that on the expiry of the month of April when the contractual tenancy
comes to an end, the possession of any sub-tenant of any portion of the said
premises would be unauthorised and illegal. It is his contention that it is not
open to the tenant to create by way of sub-tenancy or otherwise any interest in
any other person larger than the interest which the tenant himself enjoys.
According to Mr. Mehta, the tenant on the terms and conditions of the tenancy
enjoyed the right of a tenant only for the month of April and the tenant could
only, therefore, induct any subtenant on the basis of the terms and conditions
of the tenancy only for the month of April; and the enjoyment or possession of
any portion of the said premises by any sub-tenant after the month of April
would necessarily be a case of wrongful and illegal subletting without any
written consent as the consent must necessarily be considered to have stood
revoked o n the expiry of the month of April. Mr. Mehta has drawn our attention
to clauses 1 and 14 of the rent note and has argued that; the said clauses
clearly indicate that the contract of tenancy was valid only for the month of
April and the 621 authority of subletting was also only valid for the said
month and on expiry of the said month the tenant was to make over vacant
possession to the owner of the premises in the original condition. It is his
argument that the contract of tenancy clearly contemplates that there will be
no sub- tenants in the premises on the expiry of the month of April.
Mr. Mehta submits that existence of any
sub-tenants in the premises after the month of April, whether sub-tenants were
inducted in the month of April or thereafter, brings the case within the
mischief of S.13 (2) (ii) (a) and renders the tenant liable to eviction on the
ground of illegal sub- letting. It is his submission that if there be any sub-
tenants in occupation or possession of any portion of the said premises after
the contractual tenancy had come to an end the subletting must be held to be without
the written consent of the landlord and as such wrongful and illegal to enable
the landlord to evict the tenant on the ground of such subletting. Mr. Mehta
has submitted that this view which has been consistently held by the High Court
of Punjab and Haryana, has also been followed by the High Court in the instant
case. In support of this submission Mr. Mehta has referred to the decision in
the case of Kartar Singh and others v. Tarlok Singh and others which has been
referred by the learned Judge in the judgment under appeal. Mr. Mehta has also
relied on the decisions of the Punjab and Haryana High Court in the case of
Shri Kidar Nath v. Smt. Kartar Kumar, and also in the case of Gurdas Ram v.
Hans Raj.
According to Mr. Mehta, this view has held
the field in Punjab and Haryana all these years and this is the settled law in
the State. Mr. Mehta further submits that as sub- tenants have continued to
remain in possession after the month of April, the subletting must be held to
be without any written consent and illegal to furnish a valid ground for the
eviction of the tenant and all the courts including the High Court have
properly ordered the eviction of the tenant.
Mr. Mehta has next contended that in the
instant case subletting of a bed room in the flat portion and also of the
barsati portion had been done by the tenant in the month of May, 1974 as found
by the Rent Controller after the remand of the issue by this Court to the Rent
Controller. Mr. Mehta submits that the Rent 622 Controller had correctly come
to the conclusion on the evidence on record after allowing the parties
opportunity of adducing further evidence. Mr. Mehta has argued that as the
tenant had sub-let in the month of May after the expiry of the period of
tenancy, the subletting must be held to be illegal and wrongful as the consent
in writing by the landlady contained in the rent note was only for the month of
April.
Mr. Mehta argues that on the expiry of the
month of April when the contractual tenancy comes to an end and the tenant continues
to remain in possession by virtue of the provisions of the Act, the tenant does
not enjoy any power or authority to sub-let, even if such authority had been
granted to the tenant to sublet during the period of contractual tenancy. It is
the argument of Mr. Mehta that on the expiry of the contractual tenancy, the
terms and conditions on the basis of which the tenancy had been created, come
to an end and the statutory tenant who may enjoy protection against eviction by
virtue of the statute does not have any authority to induct any sub-tenant. In
support of this contention Mr. Mehta has referred to the decision of this Court
in the case of Anand Nivas (P) Ltd.
v. Anandji Kalyanji Pedhi & ors and he
has relied on the following observations at pp. 917:
"A statutory tenant is, as we have
already observed, a person who on determination of his contractual right, is
permitted to remain in occupation so long as he observes and performs the
conditions of the tenancy and pays the standard rent and permitted increases.
His personal right of occupation is incapable of being transferred or assigned
and he having no interest in the property there is no estate on which
subletting may operate." Mr. Mehta has commented that this decision of
this Court was not considered by this Court in the case of Damadi Lal and ors
v. Parasram and ors.(supra).
Mr. Mehta has further argued that it is well
settled that mere acceptance of rent on the determination of the contractual
tenancy by efflux of time or otherwise does not in the absence of something
more have the effect of creating a fresh tenancy or continuing the 623
contractual tenancy already determined; and it is his argument that it cannot
be said that a fresh tenancy was created or the tenancy was allowed to continue
on the expiry of the month of April merely because the landlady had accepted
the rent from the tenant on the expiry of the period of the tenancy after the
month of April.
Mr. Mehta, therefore, submits that in the
instant case the order for eviction has been rightly passed and this appeal
should be dismissed.
Before we proceed to consider the main
question involved in this appeal, namely, whether the existence of sub-tenants
in the premises after the expiry of the term of contractual tenancy,
necessarily renders the subletting illegal and furnishes a ground for eviction
within the meaning of S. 13(2) (ii) (a) of the Act, we propose to dispose of
the other question as to whether there was any subletting by the tenant in the
month of May. On a careful consideration of the report of the Rent Controller
on the issue remitted to him by this Court, we are of the opinion that the
finding of the Rent Controller that the tenant had sub-let one bed room in the
flat portion and the barsati portion in the month of May, 1974 is not
justified, as there was no proper evidence or material before the Rent
Controller to come to the said finding. This finding of the Rent Controller is
based essentially on the tape-recorded conversation between the tenant the
husband of the landlady.
Tape recorded conversation can only be relied
upon as corroborative evidence of conversation deposed by any of the parties to
the conversation and in the absence of evidence of any such conversation, the
tape recorded conversation is indeed no proper evidence and cannot be relied
upon. In the instant case, there was no evidence of any such conversation
between the tenant and the husband of the landlady; and in the absence of any
such conversation, the tape-recorded conversation could be no proper evidence.
We may further add that the tape-recorded conversation, even if the same could
be relied upon, would be of no particular help to the landlady, as the
tape-recorded conversation clearly indicates that the landlady on the expiry of
the term of tenancy had not merely accepted the rent but had manifested the
intention of continuing the tenancy, notwithstanding the expiry of the terms;
and the tape recorded conversation goes to show that the husband of the
landlady was asking the tenant to induct suitable persons as sub-tenants under
him.
624 As there is no proper evidence to show
that any sub- tenant was inducted after the expiry of the contractual period of
tenancy, it does not become necessary for us to consider whether the tenant
who, on the determination of the contractual tenancy, continues to remain in
possession by virtue of the provisions of the statute as statutory tenant, is
entitled to sub-let and he continues to remain in possession on the same terms
and conditions on which he became a tenant The crux of the question, therefore,
is whether the subletting by the tenant with the written consent of landlord
during the currency of the tenancy becomes unlawful and illegal on the
determination of the tenancy and furnishes a ground for eviction within the meaning
of S.
13(2) (ii) (a) of the Act.
S. 13(2) (ii) (a) which we have earlier set
out lays down that if a tenant after the commencement of the Act has without
written consent of the landlord transferred his right under the lease or sublet
the entire building or any portion thereof, the tenant shall be Liable to be
evicted on the ground of such subletting. The requirement of the section,
therefore, is that after the commencement of 'the Act there has to be
subletting by the tenant without the written consent of the landlord to enable
the landlord to recover possession of the premises on the ground of subletting
It, therefore, necessarily follows that if after the commencement of the Act,
the tenant has sublet with the written consent of the landlord, such subletting
will not furnish any ground or clause of action for the eviction of the tenant
by the landlord. It is to be noted that after the tenant has lawfully sublet
with the written consent of the landlord, sub-tenant becomes a lawful
sub-tenant; and as such he becomes a 'tenant' within the meaning of the Act
under the tenant as his landlord and continues to enjoy all the protection
available to a 'tenant' under the Act and the tenant who inducts such
sub-tenant is not entitled to evict him as landlord of the sub-tenant except in
accordance with provisions of the Act. As the tenant enjoys protection against
eviction in terms of the provisions of the Act and is not liable to be evicted
except in accordance with the provisions of the Act notwithstanding determination
of his tenancy by the landlord, the sub-tenant lawfully inducted equally enjoys
the same protection against eviction afforded to a tenant by the Act; and the
sub-tenant 625 can only be evicted in accordance with the provisions of the Act
in the same way as a tenant can be evicted. In spite of the sub-tenancy being
determined by the tenant as his landlord, the subtenant by virtue of the
protection against eviction afforded to him by the Act is entitled to continue
in possession of the portion let out to him by the tenant as his landlord; and
it is just not possible for the tenant as landlord to get rid of any sub-tenant
at his will.
In the instant case, the tenant had the
authority to sublet and the written consent, as required by the statute, had
been given by the landlady. In terms of the authority granted to the tenant and
with the consent in writing of the landlady, the tenant had inducted
sub-tenants in the month of April, when the contractual tenancy admittedly
subsisting. The subletting by the tenant in the instant case could, therefore,
afford no ground to the landlady or furnish any cause of action for her to
evict the tenant on the ground of subletting on the basis of the provisions
contained in S. 13 (2) (ii) (a) of the Act. The sub-tenants lawfully inducted
came to be in lawful possession of the portions let out to them by the tenant
with the authority and consent in writing of the landlady and such subletting
afforded a complete safeguard to the tenant against eviction and would not come
within the mischief of sec. 13 (2) (ii) (a) of the Act. We have already held
that the creation of any sub-tenancy in the month of May is not borne out by
any proper evidence on record. The case of the landlady that there was any
sub-letting on the expiry of the month of April without the written consent of
the landlady has not been established. In the instant case, the tenant has
sublet with the written consent of the landlady in the P month of April and has
not sublet any portion on the expiry of the month of April. The argument of the
learned counsel for the landlady that on the expiry of the month of April, the
consent of the landlady in writing stands withdrawn is of no consequences. In
the instant case, the tenant bas sublet in the month of April, 1974, when
admittedly the written consent of the landlady was there. The continuance in
possession of such subtenants in the portions lawfully let out to them on the
expiry of the month of April does not amount to or have the effect of any fresh
sub-letting by the tenant on the expiry of the month of April; and, it cannot
be said that the tenant "has sublet" afresh on the expiry of the
month of April. The right of possession that the sub- tenants enjoy on the
basis of lawful induc- 626 tion as sub-tenants is assured to the sub-tenants as
a "tenant" within the meaning of the Act. As a tenant. in spite of
the determination of his tenancy continues the right to remain in possession as
a statutory tenant and enjoys the protection against eviction by virtue of the
provisions contained in the statute, a sub-tenant who is lawfully inducted, is
also recognised by the statute to be a "tenant' within the meaning of the
Act and he must necessarily enjoy the protection against eviction afforded to a
tenant by the Act. A lawful sub-letting on the basis of the provisions of the
Act does not become unlawful merely because the contractual tenancy of the
tenant comes to an end. A tenant incurs the liability to be evicted, if the
tenant after the commencement of the Act sub-lets without the written consent
of the landlord; and the tenant who has lawfully sub-let with the written
consent of the landlord must necessarily enjoy immunity from the process of
eviction on that ground. Subletting lawfully done with the written consent of the
landlord does not become unlawful merely on the ground that the contractual
tenancy has come to an end.
Sub-letting to constitute a valid ground for
eviction must be without the consent in writing of the landlord at the time
when the tenant sub-lets any portion to the subtenant.
A sub-letting by the tenant with the consent
in writing of the landlord does not become unlawful on the expiry of the
contractual tenancy of the tenant, unless there is any fresh sub-letting by the
tenant without the written consent of the landlord. Mere continuance in
possession of a sub- tenant lawfully inducted does not amount to any fresh or
further sub-letting. We are, therefore, satisfied that in the instant case the
tenant has not sub-let any portion without the written consent of the landlady
after the commencement of the Act. As the tenant has not sub-let any portion
after the commencement of the Act without the written consent of the landlady,
the landlady does not have any proper ground for the eviction of the tenant on
the ground of sub-letting within the meaning of S. 13 (2) (ii) (a). Mere
continuance of possession by the sub-tenants lawfully inducted by the tenant
with the written consent of the landlady contained in rent note does not afford
any ground to the landlady for eviction of the tenant on the ground of
sub-letting, as the tenant has not sub-let after the commencement of the Act
any portion without the consent in writing of the landlady.
627 The appeal, therefore, succeeds. The
Judgment of the High A Court affirming the decision of the lower courts and the
order of eviction, are hereby set aside. The appeal is, therefore, allowed with
costs.
P.B.R. Appeal allowed.
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