Shiv Dev Sharma vs Mahabir Prashad
2006 Latest Caselaw 1946 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Sh. Har Kishore filed an eviction petition under Section 14(1)(a), (b), (f) and (j) of the Delhi Rent Control Act, 1958 (referred to as the said Act) against M/s Daya Ram Duli Chand, a joint family business. Alleged unauthorized sub tenants were imp leaded as respondents No. 2 to 8. the premises bearing No. 159, Kuncha Ghasi Ram, Chandni Chowk, Delhi which was stated to be originally let out to M/s Daya Ram Duli Chand for carrying on cloth business. All the respondents except respondent No. 1,3 and 8 were proceeded ex parte during the proceedings. Respondent No. 4 passed away and his legal representatives were brought on record who compromised with the petitioner and the petition was dismissed qua them. The property was sold by way of a sale deed by Har Kishore to Mahabir Prasad, Ram Singh and Manmohan Singh through registered deeds and they were substituted as petitioners by an order dated 28.09.1988. During the pendency of the proceedings, a compromise was arrived at between the landlord and the tenant. The tenant handed over possession of the portion in his possession as also occupied by respondent No. 2. The possession of one room each on the first and second floor was to be delivered by 31.03.1989. This compromise was recorded on 01.12.1988 by the Additional Rent Controller and the undertaking given by the tenant was accepted. A decree was passed in favor of the landlord and against the tenant under Section 14(1)(a),(b)and(f) of the said Act.

2. Respondent No. 3 continued to contest the proceedings stating that the compromise was not binding on him and was a nullity. Respondent No. 3 passed away and was substituted by his successor in interest. The Additional Rent Controller found that on the basis of the written statement filed it was apparent that no dispute was raised about the fact that Sh. Har Kishore was the landlord and M/s Daya Ram Duli Chand was the tenant.

3. The material aspect which arises for consideration was whether the subletting in favor of respondent No. 3 by the tenant enjoyed any protection. In this behalf, the written statement of respondent No. 3 stated that the suit premises were in his occupation for more than 25 years. This written statement was filed on 12.05.1970 and amounted to an averment that the respondent No. 3 was in occupation prior to 09.06.1952. The date of 09.06.1952 is relevant as under Section 16 of the said Act if the subletting is prior to that date, then no written consent of the landlord is required. However, under Section 17(2) of the said Act, respondent No. 3 was to give a notice to the landlord of the creation of the sub tenancy within six months of the commencement of the Act.

4. The Additional Rent Controller in terms of the order dated 13.10.1992 found that no such notice had been alleged to have been served on the landlord and this fact had not even been pleaded. The trial court considered the effect of the pronouncement of the Division Bench of this Court in Murari Lal v. Abdul Ghaffar 1974 Rajdhani Law Reporter 39 where it was held that if a lawful sub- tenant does not give the notice prescribed then he does not become direct tenant on the determination of tenant's tenancy and the only benefit that he and the tenant enjoy is that they cannot be evicted on the ground of sub letting. However, if the tenant is evicted on any other ground, the sub tenant also goes with him. The result of the inaction of respondent No. 3 was that the said respondent as the sub tenant would go with the tenant as he did not become a direct tenant in the absence of a notice. The eviction order had been passed under the provisions of Section 14(1)(a) and (f) of the said Act and thus the said respondent No. 3 could not enjoy any benefit as it was not an eviction merely on the ground under Section 14(1)(b) of the said Act. The eviction order was held to be validly passed.

5. Original respondent No. 8 Shiv Dutt Sharma filed an appeal against the said order. Interestingly, the original respondent No. 3 Baldev Das entered into a compromise with the landlord and thus the appeal filed by him was dismissed as having been settled.

6. The appeal filed by original respondent No. 8 was dismissed by the impugned order dated 08.08.1997. The Tribunal noted that the said original respondent No. 8 (appellant before the Tribunal) was proceeded ex parte on 07.02.1978 and the proceedings are contested by the tenant alone besides respondent No. 3, Baldev Das. The question which the Tribunal has considered is as to whether the sub tenant could file an appeal challenging the order of eviction passed under Section 14(1)(f) of the said Act. The Tribunal came to the conclusion that the accepted legal position is that the sub tenant has a privity of contract only with the tenant and has no legal relationship with the landlord. Thus where a decree is passed in favor of the landlord and against the tenant, the same is sufficient to obtain possession of the premises from the tenant even though they are physically occupied by the sub tenants. The only exception to this rule is in Section 18 of the said Act which protects the possession of a lawful sub tenant who becomes a tenant in his own right after the original landlord is notified. This requires the notice of creation of sub tenancy to the landlord under Section 17 of the said Act which was admittedly not served. The sub tenant really even did not have a right to file an appeal. The Tribunal also found that there was enough material on record for an eviction order to be passed under Section 14(1)(f) of the said Act and even though the order passed on 01.12.1988 was not a detailed order as it was arising from a consent, the same could not be faulted and the sub tenant had no right in that behalf. The only benefit the sub-tenant had that he could not be evicted on ground of subletting and thus the sub tenant was not protected in view of eviction order under Section 14(1)(f) of the said Act.

7. Learned Counsel for the petitioner has sought to raise the same pleas as raised before the Tribunal.

8. The present appeal is a second appeal which lies only on a question of law and in my considered view really no question of law has been raised. The sub tenant has not established on record that he had served any notice to the landlord so as to become the direct tenant in terms of the said Act. The sub tenant thus sinks or swims with the tenant as the landlord never recognized the status of the sub tenant. The only protection available is that the ground of sub letting for eviction would not be available in such a case of sub tenancy created prior to 09.06.1952. In the present case, the eviction order was passed inter alia on the grounds of Section 14(1)(f) of the said Act. The trial court found sufficient grounds for eviction on that ground which provides that where a premise has become unsafe or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which cannot be carried out without the premise being vacated, the eviction order has to follow.

9. In such a case, in view of the judgment in Murari Lal's case (supra) the sub tenant sinks or swims with the tenant and that is what has happened in the present case.

10. There is no infirmity in the impugned orders. It may also be noticed that the possession already stands taken over by the respondent since the petition was in between dismissed for non prosecution and the eviction order was executed in the meantime.

11. Dismissed leaving the parties to bear their own costs.