Girdhari Lal & Sons Vs. Balbir
Nath Mathur & Ors  INSC 23 (26 February 1986)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) KHALID, V. (J)
CITATION: 1986 AIR 1499 1986 SCR (1) 383 1986
SCC (2) 237 1986 SCALE (1)272
D 1987 SC2173 (3) RF 1988 SC1737 (98)
DELHI RENT CONTROL ACT 1958:
Sections 17 & 18 - 'Sub-tenant' when
entitled to protection against eviction - Consent of landlord to the
sub-tenancy and notice of creation of sub-tenancy to be evidenced in
writing-letter of sub-tenancy - Attested by landlord - Whether sufficient.
INTERPRETATION OF STATUTES:
Statute - Interpretation of - Primary duty of
court Ascertain intention of legislature - Actual or imputed Thereafter
interpret statute so as to promote and advance its object and purpose by
supplementing the written word if necessary.
The respondent-landlord, Balbir Nath Mathur
had let out the demised premises to a firm M/s. Om Prakash & Co., whose
three partners were close relations of the respondent- landlord. The
tenant-firm in turn leased out the premises to the appellant-firm. A letter
executed by the tenant-firm and attested by the respondent land-lord was passed
on to the appellant-firm had confirmed the lease and further undertook to pay
to the appellant-firm as damages a sum calculated at the rate of Rs. 2,500 per
month for the unexpired period of the lease if the appellant-firm had to vacate
the premises before the expiry of the lease period of two years.
Simultaneously, the appellant-firm also
executed a letter addressed to the respondent-landlord, in which, after
referring to the lease of the premises in their favour, it was stated that they
would pay a sum of Rs.8,400 per annum as donation to the trust of which
respondent-landlord and others were trustees, if they stayed on in the premises
after the expiry of the period of lease. By a letter dated June 10. 1975 the
tenant-firm had 384 demanded payment of arrears of rent from appellant-firm.
This letter was signed by the
respondent-landlord himself on behalf of the tenant-firm.
The respondent-landlord obtained an ex parte
decree for eviction against the tenant-firm and one of its partners. In the
execution proceedings, the appellant-firm, in whose occupation the premises
were, filed an objection petition before the Rent Controller under 8.25 of the
Delhi Rent Control Act, 1958. The objection petition was rejected by the Rent
Controller and his order was confirmed by the Rent Control Tribunal as well as
by the High Court.
In appeal to this Court lt was contended on
behalf of the appellant-firm/sub-tenant : (1) that they were not subtenants but
the direct tenants of respondent-landlord as he himself and negotiated the
lease and inducted them into possession; (11) that even if they were
sub-tenants only, they were entitled to the protection of sections 17 and 18 of
the Act; (111) that the decree obtained by the respondent-landlord was a
collusive decree and that a fraud had been played upon the Court to get rid of
the appellant- firm and (lv) that there was consent in writing by the landlord
to he sub-tenancy, as well as notice in writing to the landlord of the
sub-tenancy within the meaning of sections 17 and 18 of the Act and, therefore,
they were entitled to be protected against eviction.
Allowing the appeal, ^
HELD : (By the Court) The
appellant/sub-tenant is clearly entitled to the protection of s. 17 and 18 of
the Delhi Rent Control Act, 1958 and he cannot, therefore, be evicted in
execution of the decree obtained by respondent-landlord against tenant-
respondent. [396 F] (Per Chinnappa Reddy, J.)
1. The Delhi Rent Control Act, 1958 is
primarily devised to prevent unreasonable eviction of the tenants and
subtenants from demised premises and unreasonable enhancement of 385 rent.
Showing an awareness of the problems of sub-tenants, the Legislature enacted
88. 17 and 18 for their protection.
[395 C-D; E-F]
2. me Legislature while offering protection
to a sub- tenant who has been inducted into possession by a landlord has
limited the protection to the sub-tenant who can establish the consent of the
landlord by documentary evidence to which the landlord and the tenant or the
sub- tenant are parties. So it is provided that the previous consent of the
landlord has to be in writing and that a notice in the prescribed manner has to
be given to the landlord by the tenant or the sub-tenant. The essence of the
requirement, therefore, 18 that the consent of the landlord to the sub-tenancy
and the notice of the creation of the sub-tenancy have to be evidenced by writing.
The writing is to be such as to indicate clearly the consent of the landlord to
the creation of a sub-tenancy and his knowledge of the particular sub-tenancy
after its creation. The writing relating to the consent and the writing
relating to the knowledge (notice) may be by different documents or they may
telescope into the same document. [395 H; 396 A-C]
3. There is no magical form in which the
consent is to be given nor any charmed form in which the notice is to be sent.
The essence of the matter is that the consent to the sub-tenancy and the notice
of the sub-tenany in respect of the premises must be evidenced by written
consent of the landlord and the tenant or the sub-tenant. [396 D-E] Where, as
in the instant case, the agreement or the letter of the sub-tenancy in respect
of the demised premises is attested by the landlord himself, there can be w
question that the landlord has given his previous consent and that he has
notice in writing of the sub-tenancy in respect of the particular premises. The
requirements of sections 17 and 18 of the Act both as regards to his consent
and the notice to him are satisfied. [396 C-D]
4. The primary and foremost task of a court
in interpreting a statute is to ascertain the intention of the legislature,
actual or imputed. Having ascertained the intention, the court must then strive
to so interpret the statute as to promote and advance the object and purpose of
the enactment. For this purpose, where necessary the court may even depart 386
from the rule that plain words should be interpreted according to their plain
meaning. There need be no meek and mute submission to the plainness of the
language. To avoid patent injustice, anamoly or absurdity or to avoid
invalidation of a law, the court would be well justified in departing from the
so-called golden rule of construction so as to give effect to the object and
purpose of the enactment by supplementing, the written word, if necessary. [391
B-D] Hawkins v. Gatbercole, 43, English Reports 1129, Comet Radio Vision Services
v. Farnell Trand Bord,  III All E.R. 230; Seaford Court Estate Limitd v.
Ashor,  2 All B.R. 155; Ruggy Joint Water Board v. Fottit,  1
l057; K.P. Verghese v. I.T.O.,  4
S.C.C. 173; State Bank of Travancore v. Mohd. M. Khan  S.C.C. 82; Som
Prakash Rathi v. Union of India,  S.C.C. I 449, Ravula Sobba Rao v.
C.I.T.,  S.C.R. 577; Govindlal v. Market Committee,  1 S.C.R. 482
and Babaji Kondaji v. Nhasik Merchants Coop. Bank,  2 S.C.C. 50 relied upon.
(Per Khalid, J.) In normal cases a sub-tenant
under the Delhi Rent e Control Act 1958 can get relief under the provisions of
the Act only if he satisfies the twin conditions in s. 17 viz.
there must be the previous consent to writing
by the landlord of the creation of the sub-tenancy, and a notice in the
prescribe manner by the sub-tenant of the creation of the sub-tenancy to the
landlord within one month of the date of such creation. It is only then these
two conditions are satisfied that the consequences mentioned in s. 18 will
follow. [398 B-C] Normally, 8. 17 should be strictly complied with, for the
sub-tenant to get the benefit under s.18. [398 F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2153 of 1980.
From the Judgment and Order dated 22.9.1980
of the Delhi High Court in S.A. No. 287 of 1980.
M.K. Mukhi, Girish Chandra and Mrs. Sarla
Chandra for the Appellants.
387 F.S. Nariman, R.N. Karanjawala, Mrs.
Manik Karanajawala, Ejaz Maqbooi, M.L. Lahoty, S.P. Singh, K.P.
Gupta and Miss Helevs Marc for the
The following Judgments of the Court were
delivered CHINNAPPA REDDY, J. Balbir Nath Mathur obtained an exparte decree for
eviction against M/s. Om Prakash & Company and Kusum Rani, a partner of
M/s. Om Prakash & Company in respect of the ground floor of premises of
No.90, Sunder Nagar, New Delhi. Three of the partners of M/s. Om Prakash &
Company, it must be mentioned at the outset, are the sister-in-law and the two
minor daughters of Balbir Nath Mathur himself. When Balbir Nath Mathur sought
to execute the decree for eviction, M/s. Girdhari Lal & Sons who are in
occupation of the premises filed an objection petition before Rent Controller,
purporting to do so under 8.25 of the Delhi Rent Control Act, 1958. The
objection petition was rejected by the Rent Controller. The order of the Rent
Controller was confirmed an appeal, by the Rent Control Tribunal and, by the
High Court on further revision. M/s.
Girdhari Lal & Sons have filed this
appeal with the special leave of this court.
The Rent Controller and the Rent Control
Tribunal concurrently found that Balbir Nath Mathur was the owner of the
premises, that Om Prakash & Company was the tenant and that Girdhari Lal
& Sons were the sub-tenants under Om Prakash & Company. The case of the
appellants was that lt was Balbir Nath Mathur that negotiated the lease and
inducted them into possession and that they were not sub- tenants but the
direct tenants of Balbir Nath Mathur. Even if they were sub-tenants only, they
claimed that they were entitled to the protection of sections 17 and 18 of the
Delhi Rent Control Act. They alleged that the decree obtained by Balbir Nath
Mathur was a collusive decree and that a fraud had been played upon the court
to get rid of the appellant, M/s. Girdhari Lal & Sons. In view of the
concurrent findings that Om Prakash & Company was the tenant and M/s.
Girdhari Lal & Sons were the sub-tenants, we accept that finding and
proceed to consider the question whether the appellants are entitled to the
protection of sections 17 and 18 of the Delhi Rent Control Act.
388 At the time when the premises was leased
by Om Prakash & Company to M/s. Girdhari Lal & Sons a letter executed
by Om Prakash & Company and attested by Balbir Nath Mathur was pass ed on
to M/s. Girdhari Lal & Sons. By this letter, Om Prakash & Company
confirmed the lease and further undertook to pay to the appellant as damages a
sum calculated at the rate of Rs.2500 per month for the unexpired period of the
lease if the appellant had to vacate the premises before the expiry of the
lease period of two years Simultaneously M/s.
Girdhari Lal & Sons executed a letter
addressed to Balbir Nath Mathur in which they stated, after referring to the
lease of the house in their favour by Om Prakash & Company, that they would
pay a sum of Rs.8400 per annum as donation to the Shre Visheshwar Nath Memorial
Public Charitable Trust, a trust of which Balbir Nath Mathur and others were
trustees, if they stayed in the premises after the expiry of the period of
lease. Another important document to which we may make a reference is a letter
dated June 10, 1975 by which Om Prakash & Company demanded payment of
arrears of rent from M/s. Girdhari Lal & Sons. This letter was signed by
Balbir Nath Mathur himself on behalf of Om Prakash Company. The contention of
the appellants is that there was consent in writing by the landlord to the
sub-tenancy, as well as notice and writing to the landlord of the sub- tenancy
within the meaning of sections 17 and 18 of the Delhi Rent Control Act and therefore
the sub-tenants M/s.
Girdhari Lal & Sons were entitled to be
protected against eviction.
In order to appreciate the contention of the
appellant it is necessary to set out sections 17(1) and 18(1) of the Delhi Rent
Control Act, 1958 :- "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, gave 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
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
Rule 21 of the Delhi Rent Control Rules, 1959 provides that a notice of the
creation or termination of sub-tenancy required under s.17 shall be in Form
"E". Rule 22 provides that unless otherwise provided by the Act, any
notice or intimation required or authorised by the Act to be served on any
person shall be served (a) by delivering it to the person; or (b) by forwarding
it to the person by registered post with acknowledgement due. Form
"E" provides for a statement of full particulars of the demised
premises, such as the street, municipal ward and house number, names of the
tenant and the sub-tenant, details of the portion sublet, rent payable by the
sub-tenant, date of creation of the sub- tenancy, etc.
It may be worthwhile to restate and explain
at this state certain well known principles of Interpretation of Statutes:
Words are but mere vehicles of thought. They are meant to express or convey
one's thoughts. Generally, a person's words and thoughts are coincidental. No
problem arises then, but, not in frequently, then are not. It is common
experience with most men, that occasionally there are no adequate words to
express some of their thoughts. Words which very nearly express the thoughts
may be found but not words which will express precisely. There is then a great
fumbling for words. Long winded explanations and, in conversation, even
gestures are resorted to. Ambiguous words and words which unwittingly convey
more than one meaning are used. Where different interpretations are likely to
be put on words and a question 390 arises what an individual meant when he used
certain words, he may be asked to explain himself and he may do so and say that
he meant one thing and not the other. But if it is the legislature that has
expressed itself by making the laws and difficulties arise in interpreting what
the legislature has said, a legislature can not be asked to sit to resolve
those difficulties. The legislatures, unlike on individuals, cannot come
forward to explain themselves as often as difficulties of interpretation arise.
So the task of interpreting the laws by finding out what the legislature meant
is allotted to the courts. Now, if one person puts into words the thoughts of
another (as the draftsman puts into words the thoughts of the legislature) and
a third person (the court) is to find out what they meant, more difficulties
are bound to crop up. The draftsman may not have caught the spirit of the
legislation at all; the words used by him may not adequately convey what 18
meant to be conveyed; the words may be ambiguous; they may be words capable of
being differently understood by different persons. How are the courts to set
about the task of resolving difficulties of interpretation of the laws? The
foremost task of a court, as we conceive it, in the Interpretation of Statutes,
18 to find out the intention of the legislature. Of course, where words are
clear and unambiguous no question of construction may arise. Such words ordinarily
speak for themselves. Since the words must have spoken as clearly to
legislators as to judges, lt may be safely presumed that the legislature
intended what the words plainly say. This is the real basis of the so called
golden rule of construction that where the words of statutes are plain and
unambiguous effect must be given to them. A court should give effect to plain
words, not because there is any charm or magic in the plainness of such words
but because plain words may be expected to convey plainly the intention of the
Legislature to other as well as judges.
Intention of the legislature and not the
words is paramount.
Even where the words of statutes appear to be
prima facie clear and unambiguous it may some times be possible that the plain meaning
of the worts does not convey and may even defeat the intention of the
legislature; in such cases there is no reason why the true intention of the
legislature, if it can be determined, clearly by other means, should not be
given effect. Words are meant to serve and not to govern and we are not to add
the tyranny of words to the other tyrannies of the world.
391 Parliamentary intention may be gathered
from several sources. First, of course, it must be gathered from the statute
itself, next from the preamble to the statute, next from the Statement of
Objects and Reasons, thereafter from Parliamentary debates, reports of
Committees and Commissions which preceded the legislation and finally from all
legitimate and admissible sources from where there may be light. Regard must be
had to legislative history too.
Once Parliamentary intention is ascertained
and the object and purpose of the legislation is known, it then becomes the
duty of the court to give the statute a purposeful or a functional interpretation.
this is what is meant when, for example, it is said that measures aimed at
social amelioration should receive liberal or beneficent construction. Again,
the words of a statute may not be designed to meet the several uncontemplated
forensic situations that may arise. The draftsman may have designed his words
to meet what Lord Simon of Glaisdale calls the 'primary situation'. It will
then become necessary for the court to impute an intention to Parliament in
regard to 'secondary situations'. Such 'secondary intention' may be imputed in
relation to a secondary situation so as to best serve the same purpose as the
primary statutory intention does in relation to a primary situation.
So we see that the primary and foremost task
of a court in interpreting a statute is to ascertain the intention of the
legislature, actual or imputed. Having ascetained the intention, the court must
then strive to so interpret the statute as to promote or advance the object and
purpose of the enactment. For this purpose, where necessary the court may even
depart from the rule that plain words should be interpreted according to their
plain meaning. There need be no neek and mute submission to the plainness of
the language. To avoid patent injustice, anamoly or absurdity or to avoid
invalidation of a law, the court would be well justified in departing from the
so-called golden rule of construction so as to give effect to the object and
purpose of the enactment by supplementing, the written word if necessary.
In an old English case, Hawkins v.
Gathercole, 43 English Reports 1129, Turner, CJ., referred to two earlier cases
reported by Plowden. In the first case of Stradling v.
Morgan, 392 the Judges were reported to have
"That the Judges of the law in all times
past have so far pursued the intent of the makers of the statutes, that they
have expounded Acts which were general in words to be but particular, where the
intent was particular ........ From which cases it apears that the sages of the
law heretofore have construed statutes quite contrary to the letter in some
appearance; and those statutes which comprehend all things in the letter, they
have expounded to extend but to somethings; and those which generally prohibit
all people from doing such an act, they have interpreted to permit some people
to do it; and those which include every person in the letter, they have
adjudged to reach to some persons only; which expositions have always been
founded upon the intent of the Legislature, which they have collect ed,
sometimes by considering the cause and necessity of making the Act, sometimes
by comparing one part of the Act with another, and sometimes by foreign
circumstances, so that they have ever been guided by the intent of the
Legislature, which they have always taken according to the necessity of the
matter, and according to that which 18 consonant to reason and good discretion.
Turner, CJ himself added, "The passages
to which I have referred have selected only as containing the best summary with
which I acquainted of the law upon this subject In determining the question
before us, we have therefore, to consider not merely the words of this Act of
Parliament, but the intent of the Legislature, to be collected from the cause
and necessity of the Act being made, from a comparison of its several parts,
and from foreign (meaning extraneous) circumstances so far as they can justly
be considered to throw light upon the subject." In a forthright
pronouncement Goulding, J. said in Comet Radio Vision & Services v. Farnell
Trand Borg,  393 All E.R. 230.
"...The language of parliament though
not to be extended beyond its fair construction, is not to be interpreted in so
slavishly literal a way as to stultify the manifest purpose of the
legislature." In Seaford Court Estates Limited v. Ashor  2 All E.R.
155 Lord Denning, who referred to Plowden's Reports already mentioned by us,
"Whenever a statute comes up for
consideration, it must be remembered that it is not within human powers to
foresee the manifold sets of facts which may arise, and, even if it were, it is
not possible to provide for them in terms free from all ambiguity..... A Judge
cannot simply fold his hands and blame the draftsman. He must set to work on
the constructive task of finding the intention of Parliament, and he must do
this not only from the language of the statute, but also from a construction of
the social conditions which gave rise to it and of the mischief which it was
passed to remedy and then he must supplement the written word so as to give force
and life to the intention of the legislature. Put into homely metaphor, it is
this: A judge should ask himself the question how, if the makers of the Act had
themselves come across this ruck in the contexture of it they would have
straightened it out? He must then do what they would have done. A judge should
not alter the material of which the Act is woven, but he can and should iron
out the creases." In Rughy Joint Water Board v. Foottit  1 A.E.R.
1057, Lord Simon of Glaisdale said :
"The task of the courts is to ascertain
what was the intention of Parliament, actual or to be imputed, in relation to
the facts as found by the court....But on scrutiny of a statutory provision, it
will generally appear that a given situation was within the direct contemplation
of the draftsman as 394 the situation calling for statutory regulation:
this may be called the primary situation. As
to this, Parliament will certainly have manifested an intention -'The Primary
Statutory Intention'. But situations other than the primary situation may
present themselves for judicial decisions secondary situations. As regards
these secondary situations, it may seem likely in some cases that the draftsman
had them in contemplation; in others not. Where it seems likely that a secondary
situation was not within the draftsman's contemplation, it will be necessary
for the court to impute an intention to Parliament in the way I have described,
that is, to determine what would have been this statutory intention if the
secondary situation had been within Parliamentary contemplation (a secondary
intention)." It may not be out of place to refer here to what Harold Laski
said in his Report of the Committee on Ministers' powers:
"The present methods of statutory
interpretation make the task of considering the relationship of statutes,
especially in the realm of great social experiments, to the social welfare they
are intend ed to promote one in which the end involved may become unduly
narrowed, either by reason of the unconscious assumptions of the Judge or
because he is observing the principles of interpretation devised to suit
interests we are no longer concerned to protect in the same degree as
formerly...The method of interpretation should be less analytical and more
functional in character;
it should seek to discover the effect of the
legislative precept in action so as to give full weight to the social value it
is intended to secure." In 1981, the Australian Parliament added a new
section 15AA(1) to the Acts Interpretation Act, 1901, requiring that in
statutory interpretation "A construction that would promote the purpose or
object" of an Act (even if not expressed in the Act), be preferred to one
that would not promote that purpose 395 or object. Julius Stone in his 'Precedent
And Law - Dynamics of Common Law Growth' also refers to this provision.
Our own court has generally taken the view
that ascertainment of legislative intent is a basic rule of statutory
construction and that a rule of construction should be preferred which advances
the purpose and object of a legislation and that though a construction,
according to plain language, should ordinarily be adopted, such a construction
should not be adopted where it leads to anomalies, injustices or absurdities,
vide K.P. Varghese v.
I.T.O.  4 S.C.C.173, State Bank of
Travsncore v. Mohd.
M.Khan  4 S.C.C.82, Som Prakash Rathi
v. Union of India  1 S.C.C. 449, Ravula Subba Rao v. C.I.T.  S.C.R.
577, Govindlal v. Market Committee  1 S.C.R. 482 & Babaji Kondaji v.
Nasik Merchants Coop. Bank  2 S.C.C. 50.
Bearing these broad principles in mind if we
now turn to the Delhi Rent Control Act, it is at once apparent that the Act is
primarily devised to prevent unreasonable eviction of the tenants and
sub-tenants from demised premises and unreasonable enhancement of rent. In
particular, the purpose of sections 17 and 18 is clearly to protect the
sub-tenants from eviction where a landlord obtains a decree for eviction
against the principal tenant.
In an action for eviction by a landlord
against the principal tenant, the sub-tenant has no defence of his own under
the ordinary law, even if he has been inducted into possession with the consent
of the landlord. He has to go with the tenant. He can claim no right to sit in
the premises apart and distinct from the right of the tenant.
Showing an awareness of the problems of
sub-tenants, the legislature enacted sections 17 and 18 for their protection.
The protection was afforded to sub-tenants
who had been inducted into possession with the consent of the landlord.
While so extending a protecting hand to the
sub-tenants who had genuinely obtained the consent of the landlord alone should
be entitled to that protection. The legislature wanted to prevent persons who
had somehow managed to get into possession, having been inducted into such
possession by the tenant or otherwise from putting forward baseless claims that
they were inducted into possession with the consent of the landlord. So the
legislature while offering protection to a sub-tenant who has been inducted
into possession by a landlord 396 has limited the protection to the sub-tenant
who can establish the consent of the landlord by documentary evidence to which
the landlord and the tenant or sub-tenant who can establish the consent of the
landlord by documentary evidence to which the landlord and the tenant or
sub-tenant are parties. So it is provided that the previous consent of the
landlord has to be in writing and that a notice in the prescribed manner has to
be given to the landlord by the tenant or the sub-tenant.
The essence of the requirement, therefore, is
that the consent of the landlord to the sub-tenancy and the notice of the
creation of the sub-tenancy have to be evidenced by writing.
The writing is to be such as to indicate
clearly the consent of the landlord to the creation of a sub-tenancy and his
knowledge of the particular sub-tenancy after its creation.
The writing relating to the consent and the
writing relation to the knowledge (notice) may be by different documents or
they may telescope into the same document.
Where, as in the present case, the agreement
or the letter of the sub-tenancy in respect of the demised premises is attested
by the landlord himself, there can be no question that the landlord has given
his previous consent and that he has notice in writing of the sub-tenancy in
respect of the particular premises. The requirements of sec. 17 and 18 both as
regards to his consent and the notice to him are satisfied. There is no magical
form in which the consent is to be given nor any charmed form in which the
notice is to be sent. As we said, the essence of the matter is that the consent
to the sub-tenancy and the notice of the sub-tenancy in respect of the premises
must be evidenced by writing signed by the landlord and the tenant or the
sub-tenant. In this view of the matter, the appellant in the present case is
clearly entitled to the protection of secs. 17 and 18 of the Delhi Rent Control
Act and he cannot, therefore, be evicted in execution of the decree obtained by
Balbir Nath Mathur against Om Prakash & Company. We do not consider it
necessary to embark into a discussion of the two cases cited before us Jagan
Nath v. Abdul Aziz A.I.R. 1973 Delhi p.9 and Murari Ial v. Abdul Ghafar I.L.R.
1974 1 Delhi 45.
During the pendency of the appeal in this
court, an order was made to the effect that from January 1, 1985 onwards, the
appellant should deposit a sum of Rs.3,600 every month out of which the
respondent would be entitled to draw out a sum of Rs.1,800 only. On behalf of
the appellants, it was also 397 undertaken that the suit filed by them against
the respondents for fixation of fair rent would be withdrawn by them. We are
informed that the suit has not yet been withdrawn. We declare that the suit
filed by the appellant for the fixation of fair rent shall stand dismissed as
withdrawn. We further direct that with effect from January 1, 1985 onwards, the
rent for the premises shall be Rs.3,600 per month and it will be so paid and
adjusted. The amount now in deposit may be drawn out by the respondents. The
appeal is allowed in the manner indicated above. There will be no order as to
KHALID, J. I have gone through the Judgment
prepared by my learned brother. I agree with the conclusion that the appeal has
to be allowed.
We have before us two parties, both affluent.
No tears need be shed either for the one or the other. The tenant before us, or
to be precise the sub-tenant, is a firm which does not deserve any sympathy
from us and that for an excellant reason. They had given an undertaking before
this Court that they would withdraw the suit filed by them for fixation of fair
rent. This undertaking they did not respect till now, obviously with the
oblique motive of compelling the landlord to get the rent reduced and at the
same time walk away with an order from this Court avoiding eviction.
Left to myself, I would have declined relief
to the appellants or at least directed them to pay a sum of Rs.5,000 every
month as rent. However, in the peculiar facts and circumstances of this case,
where the conduct of the landlord is anything but wholesome, I agree with my
learned brother in the order passed by him allowing the appeal. But, I would
like to make my position clear regarding the scope and purpose of section 17
and 18 of the Act.
The normal rule is that all rights created by
a tenant disappear along with the disappearance of his tenancy unless there are
special satisfactory safeguards for the sub- tenants. A sub-tenant has no
independent existence de-hors the tenant who inducted him into possession. In
the Act before us a subtenant is given a special right, not available to him
under the general law, but that right is circumscribed by specific conditions
laid down in section
17. We have chosen to rescue the appellants
before us only because of the hide and seek 398 conduct displayed by the
so-called tenant and the so-called land-lord in this case. The facts speak for
themselves. Even a man who runs can see that the so-called tenant in this case
is the alter ego of the so-called land-lord. There is a total identification
between the two. It is their attempt to over reach the appellants by dubious
methods that has, in fact, imperilled their case, and it is for this reason
that the appellants get relief from us, even though strict adherence to the
conditions imposed under section 17 is absent.
In normal case a sub-tenant under the Act can
get relief under the provision of the Act only if he satisfies the twin
conditions laid down in section 17, viz., that there must be the previous
consent in writing by the land- lord, of the creation of the sub-tenancy and a
notice in the prescribed manner by the sub-tenant of the creation of the
sub-tenancy to the land-lord within one month of the date of such creation.
It is only when these two conditions are
satisfied that the consequences mentioned in section 18(1) will follow. I
should not, therefore, be understood to hold the view that, as a general rule,
in all cases where the sub-tenant some- how secures the signature of the
land-lord in some communication relating to tenancy, a consent in writing
satisfying the requirements of the section is to be assumed.
In this case, Messrs Om Prakash & Company
and Balbir Nath Mathur have been hand in gloves with one another to defeat the
appellants. It is the attestation by Balbir Nath Mathur on behalf of Messrs Om
Prakash & Company in the letter dated June 10, 1975, that has found favour
with us to assume consent in writing in the peculiar facts of the case. This,
according to me, is an exceptional case with facts peculiar to its own.
Normally, section 17 should be strictly complied with, for the sub-tenant to
get the benefit under section 18.
A.P.J. Appeal allowed.