Kamla Devi And Ors. vs Onkar Nath
1997 Latest Caselaw 512 Del

JUDGMENT

Usha Mehra, J.

(1) The appellant had sought eviction against the respondent on the ground of sub-letting, 17 sub-tenants were imp leaded beside the tenant Onkar Nath. In this appeal the challenge is primarily any against the observations of the Tribunal whereby he declined to hold that there was sub-letting of the premises in favour of four persons, namely, S/Shri Dewan Chand Gupta, Kirori Mal, Babu Prasad and Madan Singh. The grievance of the appellant is that no written consent was taken by the tenant to induct sub-tenants which is a pre-requirement under Section 14(1)(b) of Delhi Rent Control Act (in short the Act). That the Tribunal fell in error in presuming that there was an implied consent because of the rent note dated 12/03/1959. In the absence of any notice of creation of sub-tenancy by the sub-tenants petition of the appellant ought to have been allowed and eviction order passed.

(2) In order to appreciate the challenge, the brief facts of the case are that Shri Onkar Nath was inducted as tenant of the whole of the building bearing No. 1194,Ward No., V, Maliwara, Nai Sarak, Delhi on a monthly rent of Rs. 112.74 paise. The appellant alleged that the tenant sub-let the premises without her consent in writingwhich, was a requirement of law, as the sub-tenancy was created after 9/06/1952. The respondent took the plea that sub-tenants already occupying the premises as of right. Two of the sub-tenants, namely, Shri Kirori Mal and Shri Dewan Chand Gupta were in occupation prior to the creation to tenancy in favour of Onkar Nath by the then owner/landlord Shri Inder Narain. This fact, according to the respondent, finds mention in the rent note executed between him, Inder Nath, Dewan Chand and Kirori Mal. The terms of the rent note were accepted by all of them. The said rent note was executed on 12/03/1959, the learned Additional Rent Controller (in short the ARC) on the basis of the evidence on record concluded that there was no sub-letting in favour of Jyoti Prasad, Suresh Chand, Babu Prasad,Madan Lal, M/s. Mahalakshmi Saree Bhandar, Mahalakshmi Saree Kendra, Gupta Sales Corporation etc. He held that the occupation of the other sub-tenants wasunauthorised. Further that these persons claimed their right through two subtenants who were admittedly in possession on the date of creation of tenancy and the same was with the consent of the landlord. Learned Arc, however, held that since the tenancy by these persons as sub-tenants was violative of Clause (b) of Section 14(1) of the Act, therefore, passed the order of eviction against them. RentControl Tribunal in appeal upheld the contention of Additional Rent Controller with regard to alleged sub-letting in favour of Jyoti Parsad and Suresh Chand.Regarding Babu Parsad and Madan Lal it was held that they were not residing in the portion of the premises. Therefore, there was no question of sub-letting on theircount. Similarly, with regard to M/s. Mahalakshmi Saree Bhandar. Tribunal held that since there was genuine partnership and the person occupying the premises was partner hence there was no question of sub-letting. After discussion the legal and factual position, the Tribunal reversed the judgment of the learned ARC. He dismissed the eviction petition,

(3) The landlord has come up in second appeal thereby assailing the finding of the Tribunal on the ground that the evidence led with regard to the subletting had not been correctly appreciated by the Tribunal. Mr. Ramesh Chandra,Senior Advocate appearing for the appellant contended that the rent note exhibit RW 4/7 could not treated an implied consent of the landlord to create sub-tenancy.According to him, Delhi Rent Control Act stipulates two things namely a written note by the tenant when he wanted to sub-let and consent of the landlord for subletting in writing. But in this case no such notice or creation of sub-tenancy was given to the landlord. In fact, according to Mr. Ramesh Chandra, a specific consent to sublet in writing has to be shown by the sub-tenant. Having not shown and mere reliance on an unapproved document could not have been relied upon by theTribunal. Similarly, notice under Section 17 of the Act had also to be proved. To support his contention he placed reliance on the decision of this Court in the case of Daulat Singh v. RajenderKumar, 1993 Rlr page 591, and Girdhari Lal v. BalbirMathur, 1986 Rlr page 484. In this case it was held that the essence of therequirement, therefore, is that the consent of the landlord to the sub-letting and notice of the creation of the Sub-letting have to be evidenced bywriting. The writing has 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 different documents or they may telescope into the same document. But both are missing in this case. He, therefore, further contended that unregistered lease deed like Exhibit RW4/7permittingletting to the associate cannot be looked into. Putting another person in occupation of the premises amounts to parting with possession.Neither Mr. Dewan Chand nor Kirori Mal were associates of the tenant. They were different entities. They were paying rent to the tenant for their occupation,therefore, it amounts to sub-letting which was not permissible under law. The unregistered rent note dated 12/03/1959 could not be relied upon by the Tribunal.

(4) To support his contentions Mr. Ramesh Chandra placed reliance on the decision of the Supreme Court in the case of Bajaj Auto Ltd. v. Behari Lal Kohli,1989 Rlr (SC) page 386. In Bajaj Auto Ltd.'s case (supra) Supreme Court observed that before sub-letting tenant must obtain consent in writing to the specific subletting. Mr. Ramesh Chandra, therefore, contended that permission in general terms as is apparent from Exhibit Rw 4/7 cannot be treated as a requirement under Section 14(1)(b). Similarly notice by a sub-tenant is a must in order to become a tenant of the landlord. In this regard he placed reliance on the decision of Murari Lal v. Abdul Ghaffur, Ilr (1974) 1 Delhi 45. In the case of JugalKishore v. Rajindra Prasad & Ors., , it was held that even if the landlord has knowledge of sub-tenancy it cannot protect the sub-tenant as the consent of the landlord in writing is a must. The essence of the above discussion is that the consent of the landlord to the sub-letting and the notice of the creation of the sub-letting have to be evidenced by writing. In this regard reference was made to various judgments, namely, Duli Chand v. JagminderDass, South Asia Industries v. Sardar Sarup Singh, , and RajaRam v. Ashok Kumar, 1975 Rcj page 534.

(5) There is no denying the fact that the law requires specific consent to sublet in writing and notice of creation of sub-letting to be evidenced by writing. The important document in this regard is Exhibit Rw 4/7. The interpretation of this document will tilt the issue. If this rent note dated 12/03/1959 is construed to be a consent in writing and a notice of creation of sub-tenancy evidencing thewriting, then the contention of the appellant has no force. But if it is construed that this does amount to writing then appellant will succeed.

(6) Admittedly, in this case except the document exhibit Rw 4/7 no other written notice of creation of sub-tenancy was given nor there is any other written document evidencing the consent of the landlord admitting the sub tenancy. It is also a fact on record that the land are as well as the learned Tribunal have concurrently held that endorsement in writing signed by the landlord Shri InderNarain, the alleged sub-tenant, Dewan Chand, Pleader, Kirori Mal and that of landlord Inder Narain find place on Exhibit Rw 4/7 dated 12/03/1959. This document contains the terms and the recital of the same show implied consent of the landlord. The recital of Exhibit Rw 4/7 shows that when Onkar Nath was taken as a tenant in the premises in question by the then owner/landlord Shri InderNarain, S/Shri Dewan Chand Gupta, Pleader and Kirori Mal were already occupying the premises in question. So it is not a case where the tenant had sub-let the tenanted premises to these two persons. Rather when Onkar Nath was inducted as tenant it was made clear vide rent note Exhibit Rw 4/7 that premises was already occupied by two persons namely Dewan Chand Gupta, Pleader and Kirori Mal.Apparently on the execution of this rent note Exhibit Rw 4/7 dated 12/03/1959 all the parties concerned knew the position existing at site. The landlord knew that these two persons Dewan Chand and Kirori Mal were already in possession and that they would be paying rent to the tenant Onkar Nath thereafter. It shows the landlord Inder Narain gave his consent in writing to Onkar Nath to the creation to sub-tenancy in favour of Dewan Chand and Kirori Mal. Mr. Ishwar Sahai, Senior Advocate appearing for the respondent rightly contended that, this tantamount to implied consent of the landlord Mr. Inder Narain for the creation of the sub-tenancy and a notice of sub-tenancy evidenced in writing by a written document Exhibit RW4/7. There is no form prescribed by the statute as to in which form notice in writing seeking consent or informing creation of sub-tenancy was to be given. In similar circumstances in the case of Girdhari Lal v. Shri B.N. Mathur, 1986 (2) Rcj page 205,Supreme Court observed "there is no magical form in which consent is to be given nor any harmed form in which consent is to be given nor any charmed form in which notice is to be sent." These observations aptly apply to the facts of this case. The landlord when became signatory to Exhibit Rw 4/7 it tantamount to having given his consent of sub-letting. It also shows notice in writing of sub-tenancy in respect of the above premises. Therefore, the requirement of the law by executing this document Exhibit Rw 4/7 stood duly complied. The Legislature has not prescribed any form in which consent is to be given nor any form in which notice has to beserved. Exhibit Rw 4/7 amply proves that the landlord gave his consent in writing to the sub-letting and notice of the creation of sub-tenancy duly served on the landlord.

(7) The other contentious issue raised was that notice of creation of tenancy was not required as respondent/tenant did not induct sub-tenants. The sub-tenants were already in occupation of the premises in question when the tenant Onkar Nath was inducted. Exhibit Rw 4/7 shows that sub-tenants were not inducted by thetenant. He rather accepted them as sub-tenants with the consent of the landlord who was signatory to Exhibit Rw 4/7. The notice of creation of sub-tenancy through exhibit Rw 4/7 was duly given to the landlord. Reliance by Mr. Ramesh Chandra on the decision of Supreme Court in the case of A.S. Sulochana v. C. Dhannalinagam, , is also of no help to him. The ratio of Supreme Court rather apply to the facts of this case. There is no distinguishing feature. In the Supreme Court case after the death of the father, the son inherited the tenancy and in the case in hand the tenancy was created in favour of Onkar Nath. Thus it amounted that Onkar Nath sub-let the premises with the consent of landlord vide Exhibit RW4/7. Therefore, the ratio of Supreme Court's decision would apply to the facts of this case also. In fact the decision of this Court in the case of Gurmuuj Saren Baluja v.M.S. Sethi, 1968 Dlt page 194, apply on all force to the facts of this case.

(8) Mr. Ishwar Sahai's contention that the sub-tenants namely S/Shri Mr.Dew an Chand and Kirori Mal were the sub-tenants which sub-tenancy was created by the consent of the then landlord nullifies the case set up by the appellant. In fact previous tenant in this premises was Amar Nath, sole proprietor of M/s. Shankar Dass Banwari Lal. He was tenant in respect of whole of the premises prior to 9/06/1952. Eviction petition was brought against him on the ground of sub-letting to Dewan Chand and to the firm M/s. Des Raj Kirori Mal. The then owner Mr. InderNarain compromised that matter with the then tenant Amar Nath. Amar Nath surrendered the possession alongwith sub-tenants already in occupation of thepremises. First tenancy of the whole house was given to Onkar Nath vide Rent Note Exhibit Rw 4/7 dated 12/03/1959. In view of these facts, it cannot be said that by flux of time lease came to an end or that these sub-tenants became direct tenant of the landlord. The reading of Exhibit Rw 4/7 shows that Kirori Mal of M/s. DesRaj Kirori Mal and Dewan Chand were allowed to be the sub-tenants of Onkar Nath.360 These facts would establish that sub-letting was permitted by the landlord through Onkar Nath on 12/03/1959. It cannot be said that rent note Exhibit Rw 4/7was one sided. In fact the consent by Inder Narain the then landlord is in writing before the creation of sub-tenancy through Onkar Nath. Unfortunately, the subtenants were already there and Onkar Nath accepted them to be the sub-tenants and the then landlord gave the consent in writing and took notice of the same. In view of this bilateral agreement Exhibit Rw 4/7, the contention of Mr. Ramesh Chandra,to my mind, have no force. The well reasoned order of the Tribunal in this regard cannot be faulted.

(9) So far as the tenancy of Babu Parsad and Madan Lal is concerned, there is no evidence to show that they had been residing in the premises in question. The statement of Aw 10 was rightly rejected by the Tribunal. Onkar Nath appearing as RW 21 clearly stated that he had not seen Babu Parsad and Madan Singh residing in the premises in question. The apprehension of evidence on record by the Tribunal in second appeal cannot be interfered. I find no infirmity in the same, on the basis of the evidence on record the Tribunal rightly concluded that there was no subletting of the premises to them.

(10) Kirori Mal with his son Nem Chand were residing in this premises. AfterKirori Mal's death his son Nem Chand had been residing and canno the called a subletting in favour of Nem Chand as he was living as son of Kirori Mal.

(11) So far as the occupation of Jyoti Prasad it was proved by the oral and documentary evidence that he had been residing in the premises in question asMunim. Regarding Suresh Chand, he being close relative i.e. son-in-law of NemChand had been residing with him. Hence the Tribunal rightly concluded that neither Jyoti Parasad nor Suresh Chand were residing in the premises as sub-tenants I find no fault in the conclusion arrived at by the Tribunal. Further the judgment relied by the learned are of Kartar Singh v. Trilok Singh, 1973 Rcr page 511, has been expressly over-ruled by the Supreme Court in the case of Madhav Prasad v.SurenderKumar. Apex Court observed that when a tenant induct a sub-tenant with the written permission of the landlord, on the expiry of thetenant's contractual tenancy, the sub-tenant will continue in possession then the sub-tenant is not liable to eviction. Hence, the contention of Mr. Ramesh Chandra,that by flux of time lease came to an end and reliance of Kartar Singh's case ismisplaced.

(12) In view of the above discussion, it is apparent that the decision of the learned Tribunal being based on the oral and documentary evidence cannot befaulted. As stated at the beginning that the document Exhibit Rw 4/7 if construed to be the written consent of the landlord and a notice of creation of sub-tenancy then the appeal must fail. Since this Court is of the view that the document Exhibit RW4/7 is a written consent to the landlord/owner and a notice of creation of subtenancy, hence appeal must fail. I find no merits in the appeal nor any infirmity in the impugned order. Dismissed.