GOPPULAL versus THAKURJI SHRIJI SHRIJI DWARKADHEESHJI & ANR.

GOPPULAL

TllAKUlUI SHRIJI SHRIJI DWARKADHEESHJI & ANR.

March 12, 1969

[S. M. SIKRI, R. S. BACIIAWAT AND K. S. HEGDE, IJ.]

Rajasthan Premises (Control of Rent & Eviction) Act, (Raj. 17 of 1950). s. 13(1)(e)-Sub·letting before enforcement of the Act-Eject· ment, if possible-Landlord and tenant-Increase of rent-If imports new demise-Sub-letting-How established.

The respondent-landlord let out to the appellant four shops aod later on let out to him two more shops. The respondent filed suit alleging that subsequent to the letting of the shops, by contract, the rent was consolidated and increased and that the shops we're sub-let by the appel· laot, so the appellant be ejected from all the six shops under s. IJ(l)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act. The appellant denied the contract and denied the subletting altogether. The trial court dismissed the suit, and the first appellate court affirmed the decree. Both these courts concurrently found that new contract of tenaocy was not created. it was only an increase of rent, the other terms of the tenancy remained unaltered, and that the two shops were sub-let but with the permission. of the landlord. The High Court, in second appeal, re-versed the decree of the courts below, and held that there was one inte-grated tenancy of all the shops, that the four shops were sub-let with the permission of the landlord, but the later t\VO were sub-let without per-mission, and that having sub-Jet .Part of the premises without the per-E mission, the dec!ree for possession of all the shops must be passed. In appeal to this Court, the appellant-tenaot contended that (i) the tenancy of all the six shops were not one integrated; (ii) two shops were not sub-let without the permission of the landlord; and (iii) the sub-letting was before the Jaipllr Rent Control Order, 1947 came into force, which was repealed and continued by the promulgation of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and therefore ejectment could not be claimed unde'r s. 13 (I )(e) of the Act.

HELD : The appellant could not be ejected from ought to be ejected from the two shops.

four shops, but

(i) mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of new tenancy. In the present case the first two c'ollrts on review of the entire evidence came to the conclusion that the increase of rent did not import new demise. This finding of fact was binding on the High Court in second appeal and it erred in holding that there was one integrated tenancy of the six shops. [991 H-992 BJ

(ii) In the abs"'1ce of any pleading and any i'8ue on the question of sub-letting, the first two courts were in error in holding that the two shops we're sub·let with the permission of the landlord. The permission of the landlord for the sub-letting cannot be established from the mere fact that the landlord realised rent after the sub-lettina in the absence of proof that the landlord had then clear knowled1e of the 1ub-le.,e. [992 DJ

The date of the sub-letting of the two lhOJ!! is not mentioned in the plaint In the aboence of any plelQina and anv iS1ue on this queotion the

High Court was error in reco'rding the finding that the two shops were sub-let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force. It can only be said that the sub-letting was sometime :ifter 1945. (992 El

(iii) Section 13 ( l) ( c) of the Act was intended to apply to sub-letting before the Act came info force. If the tenant had sub-let the premises \\'ithout the permission of the landlord either 1'efore or after the coming into force of the Act, he was not protected from eviction under s. 13 ( l) ( e), and it matters not that he had the right to sub-let the premises under s. I 08 ( i) cf the Transfor of Property Act. The present perfect tense, bv words "has .sub-let" in s. lJ(J)(e) of the Act contemplates J com-pleted event connected in some \Vay with the pi'esent time. The \vords t:ike \vithin their sweep any sub-letting which was made in the part and hr1.r;; continued up t0 the present time. It did not matter that the sub-letting \Vas either before or after the Act came into force. Further .'OS. 26 and 27(1) of the Act contemplated that grounds of eviction mention-ed ins. 13 m:i.y have arisen before the Act came into force. [993 D-994 A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No, 53 of 1969.

Appeal by special leave from the judgment and decree dated November 1, 1968 of the Rajasthan High Court in Civil Re;ular S2c0nd Appeal No. 487 of 1962.

C. B. Aganmla, Rames/11rnr Nath and Mahinder Narain, for 1[1]1e appellant.

B. R. L. Iyengar. S. K. Mehta and K. L. Mehta, for the respon-dents.

The Judgment of. the Court was delivered by

P.~~h,,wat, 1. This appeal arises out of suit for ejectment by landlord a!!ainst .tenant. The defendant is the tenant of six shops belonging to Thakurji Shri Shri Dwarkadheeshji instal-led in the temple at Chaura Raasta, Jaipur. Devendra Prasad is the adhikari or manager of the temple. He gave notice to the. defendant to quit the shop on August 1. 1957. On Febru-ary '.?8. 1958, the. deity and Devendra Prasad filed suit against the defend~nt claiming recovery of possession of the six shops and Rs. 1.0061- on account of arrears of rent. The suit was ~ovcrned bv the Rajasthan Premises (Control of Rent and Evic-tion) Act. 1950 (Act No. XVII of 1950). The plaintiffs asked for ejectment of the defendant on the ground that he had suh-let the six shops. The other grounds of ejectment were not e'tablished. and it is not necessary to mention them. The courts b~low concurrently found that Devendra Prasad as the adhikari of the temple was entitled to give the notice to quit and to main-taiJl the suit.

The trial court held that ( 1) all the six shops were sub-let hv the defendant; (2) the sub-letting wa~ with the penni!!illn of

the iaadlord and (3) the notice to quit was waive<l by acceplanc~ of rent subsequently accrued due. Accordingly, tht: trial cou.-1 dt>nJ.issed the suit so far as it claimed ejectment and passed decree for Rs. 1,006 on account arrears of rent. The plaintiff filed an .ippeal against the decree. The District Judge, Jaipur City, dismissed the appeal. The plaintiffs filed second appcai agai,n.st .the dec<ce. The H.igh Court hdd that ( 1) there was on integra:ed tenancy of ali the six shops; (2J four shops were sub-let with the permission of the landlord; ( 3) two shops were sub-:et w1lh· out the permission of the landlord tuwards t!1e end of 19.+1; (4) the tenant having sub-kt pan of the premises without the pe: -mission of the landlord the ground of eviction under claii>e ( e) of s. J 3 ( 1) was made out and the landlord was entitled to decree for possession ol all the six shops and (5) th~rc was no waiver of the notice to quit. Accordingly, the High Court allow-ed the appeal and passed decree for eviction of the deiendant from the six shops. The present appeal has been field by the defendant after obtaining special leave. Counsel for the appellant conceded that there was no waiver of the notice to quit by acceptance of rent or otherwise. The points arising for determination in this appeal are : ( 1) was there on~ integrated temancy of all the six shops ? ( 2) were the two sub-let without the permission of the landlord towacds the end at 1947? and (3) is the sub-letting ground of ejectment under clause ( e) of s. 13 ( 1) of the Rent Act ?

As to the first question, we !ind that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945. ·The rent of the four shops was Rs. 150.'- ·per month. The rent of the other two shops was Rs. 65, - per month. In paragraph 5 of the plaint it was pleaded that in 1953 the defendant aoreed to pay consolidated rent of Rs. 251 /8/- per month for all the >ix shops "!ld to vacate them by July 3 l, 1957. In paragraph 5 of the wntten statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent. The first two courts found that in l 953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered. This finding was not vitiated by any error of law.

mere increase or reduction of rent does not necessarily import the surrender of the existing lea!e and the grant of new tenancy. As stated in Hill and Redman's Law of Landlord and Tenant, 14th ed., art. 385, p. 493 :-

"But surrender does not follow from mere agreement m~de during the tenancy fur the reduction

or increase of rent, unless there is some special reason to inlet new tenancy, where for instance, the parties · make the change in tne ren1 in the belief that the old tenancy is at an end."

ln the present case the first two 1;ourts on review of the entire evidence came to the conclusion that the increase of rent did not import new demise. This finding of fact was binaing on tbe H1~n Court in second appeal. The High Court was m error Ill holding that there was one integrated tenancy of the six shops.

As to the second question the defendant denied that he sub-let the two shops. The courts below concurrently found that this derual was laJse and that he sub-let the two shops to his brother-in-law Ram Gopal. There was no pleading nor any issue that the sub-1etting of the two shops was made with the permission of the landlord. It was not the case a.f the defendant at any stage of the tnal that he had obtained the permission of the landlord for sub-letting the two shops. In the aosence of any p1eadmg and any issue on his joint the first two courts were in error in hold-ing that the two shops were sub-let with the permission of the landlord. The permission of the landlord for the sub-letting is not established from the mere fact that the landlord realised rent after the sub-Jetting in the absence of proof hat the landlord had then clear lmowleage of the sub-lease:

The date of the sub-letting of the two shops is not mentioned in the. plaint. In the absence of any pleading and any issue on his question the High Court was in error in recording the finding that the two shops were sub.,Jet towards the end of 194 7 after the Jaipur Rent Control Order 1947 came into force. We can only say that the sub-Jetting was sometime after 1945.

As to the third question : section 13 ( 1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides :-

"Notwithstanding anythi,ng contained in any law or contract, no Court shall pass any decree, or make any order, in favour of landlord, whether in execution of 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 under twelve main heads, Clause ( e) mentions the following ground:-

"that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of th• prtmiHi without th• p1rmiaaio12 of th• landlord."

The appellant's contention is that sub-letting before the Act came into force is not within the purview of clause ( e). The High Court held that the two shops were sub-let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub-letting was ground oi ejectmtmt under paragraph 8(l)(b)(ii) of thftt Order and 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. With regard to this line of reason:ing it is sufficient to say that the plaintiffs have not established that the sub-letting was after October 15, 1947. The case must be decided on the footing that on the date of the sub-letting, no Rent Control legislation was in force.

The question whether sub-letting before the coming into force of the Act is within the purview of clause ( e) of s. 13 ( 1) depends upon the construction of that clause. The relevant words are "has sub-let". The present perfect tense contemplates completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the. sub-letting was either before or after the Act came into force. AH such sub-lettings are within the purview of clause (e).

Sections 26 and 27 ( 1) of the Act throw considerable light on the construction of s. 13 ( 1). They are as follows :-

"26. No decree fodhe eviction of tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any oi the growids mentioned in s. 13 and under the circum-stances specified in this Act.

27 (1) In all suits for eviction of tenants from any premises in areas to which this Act has been ex-tended under section 2, pending on the date specified in tlie notification under that section, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 13 and u:nder the circum-stances specified in this Act."

Section 26 bars the execution of decree for eviction passed be-fore the commencement of the Act except on any of the QTOunds mentioned in s. 13 and under the circumstances specified in the Act. Likewise, s. 27 ( 1) bars the passing of decree for eviction in pending suit except on one or more of the groundi undtr

iii"

s. J 3 and under the . ir~umstances specified in the Act. Secti?ns 26 and 27 ( l) clearly contemplate that the grounds of eviction mentioned in s. 13 may have arisen before the Act came mto force.

The argument that section 13 ( l )( e) takes away vested rights and should not be give.n retrospective effect is based on .faUa· cious assumptions. Apart from th~ Rent Act th.e Jandlo~d IS e~­titled to eject the tenant on the expiry of the period mentioned .m the notice to quit. Section 13 ( l) protects the tenant from evic-tion except in certain specified cases. If one of the grounds of ejectment is made out the tenant does not qualify for protection from eviction. We find no reason for pfesuming that s. 13 (1 )( e) is not intended to apply to sub-lettings before the Act came into force. If the "tenant has sub-Jet" the premises without the per-mission of tlie landlord either before or after the coming into force of the Act, he is not protected from eviction under s. 13 ( l )( c), and it matters not that he had the right to sub-let the premises under s. 108 (j) of the Transfer of Property Act.

The plaintiffs have thus established the ground of eviction under s. 13 ( 1 )( e) with regard to the two shops on ~ northern side of the staircase of the temple. With regard to the four other shops the courts below concurrently found that they were sub-let with the permission of the landlord. In our opinion, the plaintiffs are entitled to decree for ejectment of the defendant from the two shops and the claim for eviction from the other four shops should be dismissed.

In the result, the appeal is allowed in part. The decree passed by the High Court for eviction of the defendant from the four shops is set aside and the suit in so far as it claims eviction from the four shops is dismissed. The decree passed by the High Court for evict!on of the defe.ndant from the other two shops on the northern side of the .staircase of the temple mentioned in par_agraph 4 of the. plaint is affirmed. Parties will pay and bear their own costs throughout, in this Court and in all the courts below. The defendant will have one month's time to vacate the two shops.

Appeal allowed in part.