Narndhari Body Builders vs Raj Kumari And Ors.
1986 Latest Caselaw 71 Del

JUDGMENT

G.C. Jain, J.

(1) This second appeal is directed against the order of the Rent Control Tribunal dated August 5, 1982.

(2) The dispute is in respect of property No. WZ-40,PhoolBagb, Rohtak Road, Delhi. These premises were admittedly let out by Naurattan Chand to Harbans Lal on a monthly rent of Rs. 425.00 vide lease deed dated August 22, 1966. The tenant, admittedly, sub let a part of the premises to the present appellant (M/s. Namdhari Body Builders). The landlord, it appears, took objection to the sub letting and served a notice on the tenant in this behalf. A compromise was arrived at between the landlord and the tenant on April 1, 1970. The agreed rent was increased to Rs. 500.00 per month and the said sub letting as condoned. This compromise was witnessed by Nirmal Singh, proprietor of the appellant-firm.

(3) On January 29, 1973 the landlord filed a petition under clauses (a) and (b) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (for short 'the Act'), for recovery of possession of the premises in dispute, on the allegations that the tenant had neither paid nor tendered the arrears of rent amounting to Rs. 37501- for the period ending December 22, 1972, within two months of the service of the notice of demand, dated October 30, 1972, and had, after April 1, 1970 sub let, assigned or otherwise parted with possession of the various portions of the premises in dispute in favor of the respondents No. 2 to 9 and all the sub-lettings, except sub letting in favor of the present appellant (respondent No. 2 in the eviction petition) were unauthorised.

(4) The petition was resisted by the tenant as well as the sub tenants except respondents No. 4 & 5 (M.K. Industries and Danesh Industries). The sub lettings were not denied. The tenant as well as the sub tenants, however pleaded that the sub tenancies were authorised and had been created with the written consent of the landlord. As regards the nonpayment of rent the plea raised by the tenant was that the different authorities had restrained him from making payment of rent to the landlord and that he had paid a sum of Rs. 2050.00 which had not been accounted for.

(5) During the pendency of the petition, Smt. Raj Kumari was substituted in place of Naurattan Chand vide order dated September 6, 1976.

(6) The Additional Controller came to the conclusion that the arrears of rent were admittedly due ; the tenant was not entitled to the benefit of (be provisions contained in Section 14(2) of the Act as he bad failed to comply the order made under Section 15(1) of the Act and that all the tub lettings, except the sub letting in favor of tb(r) appellant, had been made without obtaining the consent in writing of the landlord. With these findings he passed an order for recovery of the possession of the premises in dispute, except the portion which bad been sub let to the appellant, the authorised sub tenant.

(7) Four appeals were filed against this order before the Rent Control Tribunal-one by the landlady, second by the tenant (Harbans Lal), third and fourth by the Sub-tenants, Trig Engineers and Constructors and M/s. Psycho Engineer. All these appeals were decided by the Tribunal by a common order dated August .?, 1982. He dismissed the appeals of the tenant and the sub tenants upholding the findings of the learned Addl. Controller regarding non payment of rent and unauthorised sub lettings. The appeal filed by the landlady was, however, allowed. It was held that the appellant was not entitled to become a direct tenant under Section 18 of the Act as it has not served on the landlord the requisite notice.

(8) Feeling aggrieved the appellant M/s. Narndhari Body Builders, has filed this appeal.

(9) A sub-lease has all the essential elements of a lease. However, the grant in this case is by a person who is himself a lessee. Under the general law a sub tenancy determines automatically with the determination of the head-tenancy out of which it is carved. The ending of the tenant's estate, under the normal rule, would also have the effect of ending the sub tenant's estate. The sub tenant who derives his title under the tenant must stand or fall with the tenant. Section 18 read with Section 17 of the Act however provide an exception to this rule. The relevant portions of these Sections read: "17(1)Where, after the commencement of this Act, any premises are sub-let cither 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, give notice to the landlord of the creation of the sub-tenancy within one month of the dat(r) of sub-letting and notify the termination of sub-tenancy within one month of such termination. 18. (1) Sub-tenant to be tenant in certain cases :-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 continued."

(10) To attract the provisions under section 18 of the Act it must be- proved that the sub-tenant was a lawful sub-tenant i.e. a person to whom the premises or a portion thereof has been sub-let with the consent in writing of the landlord and that a notice of the sub-tenancy bai been given to the landlord within the prescribed period. In the present case it has not been disputed that the appellant was a lawful sub-tenant. In the eviction petition itself it was admitted that the sub-tenancy in appellant's favor was authorised. The dispute is regarding the fulfillment of the second requirement. """

(11) Admittedly, no notice, as contemplated in Section 18(1) read with Section 17(1) of the Act, within the prescribed period or otherwise, had been given to the landlord. The contention of Mr. Puri, learned counsel appearing for the appellant, is that the sub-tenancy in favor of the appellant was authorised by the landlord by means of an agreement dated April 1, 1970 which was witnessed by Nirmal Singh, proprietor of the appellant, and this itself amounted to a notice, as contemplated in Section 18(1) of the Act. To give another notice, argued the counsel, would have been a pointless formality. Reliance was placed on the decision of a learned single judge Of this court in Jagan Nath v. Abdul Aziz, . This contention in my judgment has no substance.

(12) To attract the provisions of Section 18, as seen above, subtenant must be the sub-tenant, referred to in Section 17, i.e. a sub-tenant to whom the premises or part there of have been sub let with the consent in writing of the landlord. In spite of this fact the legislature in its wisdom imposed the second condition, namely, the requirement of the service of notice of sub-tenancy before the status of direct tenant could be conferred on such a sub-tenant. The words "and a notice of the sub-tenancy has been given to the landlord''/must be given their natural meanings. The Court would be justified in rejecting these words as surplus age only if it is clear that otherwise manifest intention of the legislature would be defeated or if these words reduce the intention of the legislature to a nullity. This is not the case here. The legislative intention is to confer the rights of a direct . tenant on a lawful sub-tenant provided he gives the statutory notice within the prescribed period. Such a notice, therefore, was a must before a lawful tenant could claim rights of having become a direct tenant on the same terms and conditions

(13) In Mvrari Lal v. Abdul 'Ghaffar, 1973 R.C.R. Vol. 5, page 748 it was held:- "IN our opinion the provisions of Sections 17 and 18 of the Act do not support the view that a landlord who gives his consent in writing to a tenant to sub-let any premises thereby waives notice by the sub-tenant under Sub-section (1) or Sub-section (2) of Section 17 or where the landlord is unable or is estopped from contesting that the premises were not lawfully sub-let then giving the notice is unnecessary or a pointless formality. In order to get the benefit under Section 18 of the Act a subtenant covered by the provisions of Sub-section (1) Or Sub-section (2) of Section 17 must give notice in the prescribed manner and within the permitted period. Even though the premises in occupation of a sub-tenant may have been sub-let to him after the commencement of the Act with the previous consent in writing of the landlord or the premises may have been lawfully sub let to him before the commencement of the Act,unless the required notice under Section 17 is given he cannot claim under Section 18 of the Act that from the date of the order for eviction made under Section 14 of the Act against the tenant but not against him he should be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued."

The decision of the learned single Judge in Jagan Nath's case was dissented.

(14) Division Bench decision in Murari Lal's case was approved by another Division Bench in Manphul Singh Sharma v. Mst. Ahmedi Begum & Others, 1982 (1) R.C.J. 167. The relevant observations read as under : "UNDER this sub-section a lawful sub-tenant becomes a tenant under the landlady after the passing of the order of eviction against the tenant and not against the sub-tenant only when a notice of sub tenancy as required under Section 17 of the 1958 Act had been served. Learned counsel for the appellants submits that as the appellant-sub-tenants were inducted with the written consent of the landlady no notice under Section 17 of the 1958 Act was required to be served. In Shri Rolhan Lal v. Bhagwali Devi and others, this court held that a sub tenant in lawful occupation of the premises, on eviction of the tenant, docs not become tenant automatically under Section 18 of the 1958 Act. It was further observed that notice under Section 17 of the Act is necessary as a condition precedent for claiming the status of a tenant. The matter was considered by the Division Bench in Murari Lal v. Abdul Gaffar and others,. when it has been held that in order to get benefit of Section 18 of the 1958 Act a sub-tenant covered by the provisions of Sub-section (1) or Sub-section (2) of Section 17 must give notice in the prescribed manner and within the permitted period. It has further been observed that even though the premises in occupation of a sub-tenant have been sub let to him with the previous consent in writing of the landlord, unless the required notice under Section 17 is given, he cannot claim under Section 18 of the Act that from the date of the order for eviction he should be deemed to be a tenant holding directly under the landlady."

(15) In view of the above Division Bench decision Judie contention of learned counsel for the appellant cannot be accepted. [The appellant-subtenant having failed to serve the notice as required under Section 18(1) of the Act, was not entitled to become a direct tenant

(16) For all these reasons, I find no merit in the appeal and dismiss the same. Parties arc left to bear their own costs.

(17) The appellant is allowed three months' time to vacate the premises.