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PETITIONER: BHOOLCHAND AND ANR.

       Vs.

RESPONDENT: KAY PEE CEE INVESTMENTS AND ANR.

DATE OF JUDGMENT10/10/1990

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1991 AIR 2053            1990 SCR  Supl. (2) 251  1991 SCC  (1) 343        JT 1991 (1)   186  1990 SCALE  (2)711

ACT:     Karnataka  Rent  Control Act, 1961--Sections  21(4)  and 50-Subletting  without  written  constent  of  the  landlord eviction  of tenant-Written consent of landlord for  sublet- ting--Whether enures to benefit of tenant during subsistence of statutory tenancy after expiry of contractual tenancy.

HEADNOTE:     T.A. Jotindranath Mudaliar, the original lessor, let out his premises viz. two shops and a house adjoining the  shops to  M/s,Bhoolchand Chandiram, appellant on 4.10.1943 on  the terms  contained in the letter dated 4.10.1943  whereby  the shops were let out on a monthly rent of Rs.430 for two years with  the  option of sub-letting one of the  shops  and  the house  adjoining the shops was let out on a monthly rent  of Rs.50  for eleven months with the option of sub-letting  the house  also. The appellant sub-let one of the two  shops  to one  ’Arts Palace’ and later w.e.f. 1.4.1948, the  appellant inducted another sub-tenant M/s. Super Dry Cleaners,  appel- lant in the other appeal. Consequent upon a partition in the family  of original lessor, the premises in dispute came  to the  share  of Narendranath Mudaliar.  The  original  lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974. On 28.6.1974, Narendranath Mudaliar sold the  property in  question to respondent No. 1. The  appellanttenants  at- torned  in favour of respondent No. 1 and paid rent for  the premises  @  Rs.335 (fair rent fixed) to respondent  No.  1. Respondent No. 1 filed petition on 5.9.1975 for eviction  of the  appellant on the grounds of sub-letting and  bona  fide need of the landlord under clauses (f) and (h) of the provi- so  to sub-section (1) of Section 21 of the  Karnataka  Rent Act.     The trial court dismissed the application, but the  High Court set aside that order and passed a decree for  eviction on  both the grounds. Hence these appeals by the tenant  and sub-tenant have been filed after obtaining special leave  of the Court.     The  appellants question the findings of the High  Court on  both  the questions viz. bona fide  requirement  of  the landlord as also sub-letting.

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252 Respondent  No. 1 on the other hand urged that there  is  no infirmity in the High Court’s decision on both the questions so as to warrant any interference in these appeals. Dismissing the appeals, this Court,     HELD: Landlord’s written consent for sub-letting  during the period of contractual tenancy cannot be construed as his consent  subsisting  after  the expiry  of  the  contractual tenancy. [265D]     A sub-letting by the tenant with the consent in  writing of  the landlord does not become unlawful on the  expiry  of the  contractual tenancy of the tenant, unless there is  any fresh sub-letting by the tenant without the written  consent of  the landlord. Mere continuance in possession of  a  sub- tenant  lawfully  inducted does not amount to any  fresh  or further sub-letting. [265E-F]     The sub-letting in the instant case was after expiry  of the  contractual tenancy and after the commencement  of  the Act  prohibiting sub-letting without the written consent  of the landlord when it was made on 1.4.1948. [265B]     Damadilal and Ors. v. Parashram and Others, [1976] supp. SCR  645;  Dhanapal Chettiar v. Yesodai Ammal [1980]  1  SCR 334; Smt. Gian Devi Anand v. Jeerart Kumar and Ors.,  [1985] Supp. 1 SCR 1; L. Mahabir Prasad Verma v. Dr. Surinder Kaur, [1982]  3 SCR 607; M/s. Shalimar Tar Products Ltd.  v.  H.C. Sharma  and  Ors., [1988] 1 SCC 70; Shantilal  Rampuria  and Ors. v. M/s. Vega Trading Corpn. and Ors., [1989] 3 SCC 552; M/s.  Bajaj Auto Ltd. v. Behari Lal Kohli, [1989] 4 SCC  39; Duli Chand (dead) by Lrs. & Ors. v. Jagmender Dass, [1990] 1 SCC 169 and Tara Chand and Ant. v. Ram Prasad, [1990] 3  SCC 526, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal  Nos.  47(11 and 4702 of 1985.     From  the  Judgment and Order dated 12.12. 1983  of  the Karnataka High Court in C.R.P. No. 3765 of 1981.     Dr.   Y.S.  Chitale  Rameshwar Nath, Ravinder  Nath  and Sukumar Ghosh for the Appellants in C.A. Nos. 4701 and  4702 of 1985. 253     P. chidambram, S.S. Javali, H.R. Anantha Krishna  Murthy and  Ranjit Kumar for the Respondents in C.A. Nos. 4701  and 4702 of 1985. The Judgment of the Court was delivered by     VERMA,  J.  These appeals by special leave  are  by  the tenant  and  the sub-tenant against a  decree  for  eviction passed on the grounds of sub-letting and the reasonable  and bona  fide requirement of the respondent-landlord  specified in  clauses  (f) & (h) of the proviso to  sub-section  1  of Section 21 of the Karnataka Rent Control Act, 1961  (herein- after  called ’the Act’). The Trial Court had  rejected  the landlord’s  application. for an order of eviction  on  these grounds,  but the High Court in a revision under Section  50 of the Act has set aside the Trial Court’s order and  passed the  decree for eviction on these grounds. Hence  these  ap- peals.     The  material  facts are undisputed at this  stage.  The premises  comprises of two shops and a house  adjoining  the shops and belonged earlier to one T.A. Jotindranath  Mudali- ar. The premises were let out by the original lessor to M/s. Bhoolchand Chandiram (Appellant in Civil Appeal No. 470 1 of 1985)  on 4.10.1943 on terms contained in the  letter  dated

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4.10.  1943  from  the original lessor  to  M/s.  Bhoolchand Chandiram which reads as under:      "T.A. Jotindranath                933, Laxmipur      Mudaliar.                         Mysore, 4th October 43 To Messrs. Boolchand Chandiram, Silk Merchant, C/o Messrs. Bhagwandas Shyam sunder & Co., 112, Commercial Street, Bangalore Cantt. Dear Sirs,          With  reference to your letter dated 30th Sept.  43 and your personal conversation about renting out my shops in 254 the  Commercial Street, Bangalore Cantonment, it  is  agreed and confirmed that you are prepared to take the two shops at monthly  rent of Rs.430 (Rs. Four hundred and  thirty  only) with  two  years  agreement and three  month’s  advance  and execute  the necessary rental Deed, with the option of  sub- letting  one  of the shops. As for the House  adjoining  the shops  at  monthly rent of Rs.50 (Rs. Fifty only)  with  one month’s advance and Eleven Month’s rental Deed. You have the option of sub-letting the house also.                              Yours sincerely,                                         sd/-                              T.A. Jotindernath Mudaliar"     M/s.  Bhoolchand Chandiram continued as a tenant in  the premises and sometime in the year 1946 sublet one of the two shops  to  one  ’Arts Palace’. Later,  w.e.f.  1.4.1948  the appellant  M/s. Bhoolchand Chandiram inducted  another  sub- tenant M/s. Super Dry Cleaners (Appellant in Civil Appeal No 4702  of 1985) in place of Arts Palace in the same shop.  In 1960,  a partition took place in the Hindu Undivided  Family of  Mudaliar  brothers,  the original lessor  and  the  suit premises  fell to the share of Narendranath  Mudaliar.  M/s. Bhoolchand Chandiram continued in the premises as the tenant with  Super Dry Cleaners as the sub-tenant in one shop  from 1.4.  1948.  The  original  lessor  (including  Narendranath Mudaliar  after partition in the HUF of  Mudaliar  brothers) continued  to  take  rent from the  tenant  M/s.  Bhoolchand Chandiram  of  the entire premises i.e. two  shops  and  the house adjoining the shops till May, 1974. On 28.6.1974,  the said  Narendranath Mudaliar executed a registered sale  deed in favour of respondent No. 1, M/s. Kay Pee Cee Investments, a registered partnership firm comprising of three ladies  of one  family as partners, for the sale consideration  of  Rs. 1,40,000.  It  may  be mentioned that in  a  proceeding  for fixation  of standard rent between the original  lessor  and the tenant, monthly rent of Rs.325 was fixed for the  entire premises i.e. two shops and the house and the rent due  upto May,  1974  was paid by the tenant to the  original  lessor. After execution of the said sale deed in favour of  respond- ent No. 1, the tenant attorned in favour of respondent No. 1 and paid rent for the entire premises @ Rs.325 per month  to respondent No. 1.     The suit premises comprises of Shop. Nos. 44 and 45 (New Nos. 1 & 2) in commercial Street, Bangalore Cantt. and House No. 250 (New No. 22 Narain Pillai Street Cross). Admittedly, the premises are 255 in  a prestigious commercial locality of the city of  Banga- lore. Respondent No. 1 landlord claims that the entire  suit premises  is reasonably and bona fide required by the  land- lord for its own business as agents of various textile mills

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for  the  purpose  of opening a showroom for  which  it  was purchased.  It  is also alleged that one of  the  shops  was unlawfully  sublet w.e.f. 1.4.1948 giving rise to the  other ground of sub-letting also for eviction. The respondent  No. 1  gave  a notice on 31.7.1975  terminating  the  appellant- tenant’s  tenancy.  Thereafter on 5.9.1975  a  petition  was filed  by respondent No. 1 for eviction of the appellant  on the  grounds of sub-letting and bona fide need of the  land- lord under clauses (f) & (h) of the proviso to sub-section 1 of  Section 21 of the Karnataka Rent Control Act,  1961.  As earlier  stated, the Trial Court dismissed the  application, but  the  High Court has set aside that order and  passed  a decree for eviction on both the grounds.     The ground of sub-letting is to be decided on the  above undisputed  facts  on the basis of legality of  the  act  of sub-letting  on 1.4.1948 in these circumstances. The  ground of  bona fide need of the landlord is to be decided  on  the basis  of the evidence led which is entirely oral from  both the  sides with reference to the infirmity, if any,  in  the High  Court’s finding permitting interference  therewith  in these  appeals. Dr. Y.S. Chitale, learned counsel  appearing for the appellant-tenant assailed the High Court’s  findings on  both  these questions. Shri S.  Ghosh,  learned  counsel appearing  for the sub-tenant adopted the arguments  of  Dr. Chitale.  Shri  Chidambaram, learned  counsel  appearing  on behalf of the respondent No. 1 landlord has urged that there is  no  infirmity in the High Court’s decision on  both  the questions to permit any interference in these appeals.     We  shall  first take up the question  relating  to  the landlord’s  reasonable and bona fide requirement which is  a ground for eviction under clause (h) of the proviso to  sub- section 1 of Section 21 of the Act. It may be recalled  that the  Trial Court had negatived the existence of this  ground while  the High Court reversing that conclusion has held  it to be proved. The question before us is whether there is any infirmity  in  the  High Court’s reversal  of  this  finding justifying interference in these appeals. Against the  deci- sion of the Trial Court, the provision made in Section 50 of the  Act  is  of a revision and not an appeal  to  the  High Court. However, the power of revision is not narrow as in s. 115  CPC but wider requiring the High Court to  examine  the impugned  order for the purpose of satisfying itself  as  to the  legality  or correctness of such order  or  proceeding’ which  enables the High Court to ’pass such order in  refer- ence thereto as it thinks fit’. 256 It is clear that the High Court in a revision under  Section 50  of the Act is required to satisfy itself not only as  to the legality of the impugned order or proceeding but also of its  correctness.  The power of the High  Court,  therefore, extends  to  correcting not merely errors of  law  but  also errors of fact. In other words, the High Court in a revision under  Section  50  of the Act is required  to  examine  the correctness  of  not only findings on questions of  law  but also on questions of fact. It is significant that the  revi- sion  provided is directly against the Trial  Court’s  order and not after a provision of appeal on facts. All the  same, the power in revision under Section 50 of the Act cannot  be equated with the power of the Appellate Court under  Section 107(2)  of the Code of Civil Procedure which is the same  as that  of the original court; and the revisional power  under Section  50 of the Act even though wide as  indicated,  must fall  short of the Appellate Court’s power  of  interference with a finding of fact where the finding of fact depends  on the credibility of witnesses, there being a conflict of oral

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evidence of the parties.     It has, therefore, to be seen whether the High Court  in the  present case while reversing the Trial Court’s  finding on  the  question  of landlord’s reasonable  and  bone  fide requirement of the suit premises exceeded its  jurisdiction. Admittedly,  the only evidence led by the landlord for  this purpose is oral comprising of the testimony of PW. I Dinesh, the Power of Attorney holder of the landlord and son of  one of  the  three ladies who were partners of  that  firm.  The evidence in rebuttal is also oral comprising essentially  of denial of the plaintiffs requirement.     The  credibility  of the oral evidence  adduced  by  the parties  has  to be assessed in the  background  of  certain undisputed  facts and circumstances. It is  undisputed  that the  respondent No. firm comprising of three  partners,  all women,  belonging to a family of businessmen having  textile business  also  was  constituted in 1958 and  the  firm  was registered in 1961; the power of attorney was given to PW  1 Dinesh,  son of one of the partners, on 4.9.1970;  the  suit premises was purchased by the respondent No. 1 firm in 1974; respondent  No. 1 firm has its business in one room  on  the third  floor in a rented premises in Bangalore and  it  does not  have  any other premises for this purpose;  and  PW.  1 Dinesh is looking after the entire business of the  respond- ent No. 1 firm as a duly constituted attorney. RW. 1 Thakur- das Bhoolchand, proprietor of M/s. Bhoolchand Chandiram also admitted  that the children of the ladies who were  partners of  the respondent No. 1 firm are carrying on  the  business and that business is being carried on 257 in a premise at Sakalji Market, Avenue Raod, Bangalore which according to respondent No. 1 is a rented accommodation. RW. 1 has merely denied knowledge of the premises being taken on rent by respondent No. 1. The question, therefore, is wheth- er  on these undisputed facts and circumstances  the  ,land- lord’s reasonable and bona..fide need has been proved.     The  Trial  Court in deciding against the  landlord  was influenced  considerably by the fact that in support of  the landlord’s  case ’no piece of documentary evidence  is  pro- duced’.  The  Trial Court accepted that the  family  of  the respondent No. 1 carries on textile business but held it not proved that partition in the family has taken place to  give rise  to  the requirement of respondent No. 1 firm  for  the suit  premises when the joint family owns other premises  in Bangalore. According to the Trial Court, the respondent  No. 1  firm is not a separate entity detached from  the  family. The  Trial Court was obviously in error in being  influenced by  the absence of any documentary evidence to  support  the need set up by respondent No. 1. There is no finding record- ed by the Trial Court of the existence of any document which was  material  for  deciding the question and  it  being  in possession of the respondent No. 1 had not been produced  at the trial. In the absence of any such finding, the effect of non-production  of  any documentary evidence  being  put  in scales against the landlord resulted in an infirmity permit- ting the High Court to examine the correctness of the  find- ing  even when it was based on the credibility of  the  oral evidence  adduced by the parties. Similarly, the suit  prem- ises  belonging,  admittedly, to the three ladies  who  were partners of the respondent No. 1 firm and to no other member of the family to which those ladies belonged, the  premises, if  any, belonging to other members of the family could  not be taken into account for assessing the reasonable and  bona fide  need of the business of respondent No. 1  firm.  Since the three ladies constituting the respondent No. 1 firm come

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from a family having textile business and for the purpose of the suit premises, they being distinct from other members of the family with their separate business in a rented accommo- dation  in  the  same city, the Trial  Court’s  finding  was vitiated by another infirmity when it failed to examine  the need set up by respondent No. 1 firm in the correct perspec- tive. The High Court was, therefore, justified in re-examin- ing the correctness of the finding on this question correct- ing  both these errors which had vitiated the Trial  Court’s finding.  These  infirmities in the  Trial  Court’s  finding clearly show that the weight of the Trial Court’s finding of fact  in the present case was considerably reduced  and  the High  Court  in a revision under Section 50 of the  Act  was empowered to examine the cor- 258 rectness of this finding after eliminating both the infirmi- ties.     It is obvious that the partners of the respondent No.  1 firm  belonging  to a family already  having  large  textile business  would not purchase the suit premises in a  presti- gious  commercial locality at Bangalore merely  for  earning the monthly rent of Rs.325 after investing the amount of Rs. 1,40,000  in  1974 to acquire the  business  premises.  This factor indicating the greater probability also has to be put in scales while assessing the landlord’s bona fide  require- ment set up in the present case. Viewed in this manner,  the High  Court’s  finding on this question based  on  the  oral evidence adduced by the parties in the background of  undis- puted  facts  and  circumstances of the  case  reaching  the conclusion  that  the landlord’s reasonable  and  bona  fide requirement  of the suit premises for its own occupation  is proved does not suffer from any infirmity which can  justify interference  therewith  in  these appeals.  This  alone  is sufficient to affirm the decree for eviction passed  against the appellants in these appeals.     We  shall  now consider the other question  relating  to sub-letting  which  is a ground for  eviction  specified  in clause (f) of the proviso to sub-section 1 of Section 21  of the  Act. The basic point for decision is whether  the  sub- letting made by M/s. Bhoolchand Chandiram to M/s. Super  Dry Cleaners  of one shop which is a part of the  suit  premises w.e.f.  1.4, 1948 was unlawful being contrary to any  provi- sion  of  law then in force. Considerable argument  was  ad- vanced from both sides relating to the law then in force. We may  here indicate that existence of the ground of  sub-let- ting loses much of its significance on our above  conclusion that the landlord’s reasonable and bona fide need was right- ly  held proved by the High Court with the consequence  that the  decree  for eviction can be sustained  on  that  ground alone. The ground of sub-letting, however, remains of  prac- tical significance only for the purpose of applicability  of sub-section  4 of Section 21 of the Act since that would  be attracted  only  if  the ground of  sub-letting  also  found proved by the High Court, is not upheld herein. If, however, this  ground  also is upheld, then the decree  being  passed even  on this ground, the further question of greater  hard- ship  to the landlord or the tenant under Section  21(4)  of the  Act  would  not arise. It is for this  reason  that  we consider it necessary to examine the question of subletting.     The main controversy between the two sides on the ground of sub-letting is whether a written consent of the  landlord for  sub-letting  was necessary on 1.4.1948  when  the  sub- letting was made and, if so, 259 was there such a written consent given by the landlord?  The

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written consent of the landlord on which reliance is  placed by  the tenant as well as the sub-tenant, the appellants  in these appeals, is that contained in the above quoted  letter dated  4.10.1943 of the original lessor. Unless the  written consent of the landlord contained in the above letter  dated 4.10.1943 can be held to be subsisting on 1.4.1948 when  the sub-letting  was made in favour of M/s. Super  Dry  Cleaners there  ,  would, admittedly, be no written  consent  of  the landlord to this subletting. There is no controversy in this respect.     The first point for consideration, therefore, is whether the  written consent of the landlord contained in the  above quoted  letter dated 4.10.1943 can be treated as  subsisting and  available on 1.4. 1948 when the subletting in  question was,  in fact, made. There is no case set up by  the  tenant and sub-tenant of any implied consent of the original lessor or waiver of the ground of sub-letting and, therefore,  that question does not arise for consideration.     The  written consent of the landlord for sub-letting  on 1.4.1948 according to learned counsel for the appellants  is to  be found in the letter dated 4.10.1943 of  the  original lessor.  The  consent of the landlord for sub-letting  is  a question of fact. Such consent is an act of volition of  the landlord and is not to be inferred from any statutory provi- sion.  The effect of the statute comes in, if at  all,  only for  the  purpose  of ascertaining  whether  the  landlord’s consent  can  be treated as subsisting after  lapse  of  the period  for  which it was expressly given.  There  being  no compulsion  on the landlord to give such consent  it  cannot ordinarily  extend beyond the period for which alone it  was expressly given. Admittedly, the consent which was given  by the original lessor in the present case is to be found  only in the said letter dated 4.10.1943. We must, therefore,  see the consent given therein.     The  aforesaid  letter dated 4.10.1943 of  the  original lessor  confirming the creation of the tenancy  with  effect from  4.10.1943  stated  that two shops were let  out  on  a monthly  rent  of Rs.430 for two years with  the  option  of sub-letting  one of the shops; and the house  adjoining  the shops  was  let out on a monthly rent of  Rs.50  for  eleven months with the option of sub-letting the house also.  There is no dispute that subsequently in a proceeding for fixation of the standard rent, the entire premises comprising of  the two  shops and the houses, was treated as one  premises  and the monthly rent of Rs.325 was fixed for the entire premises and this is how the tenancy was treated by both sides as one tenancy instead of two separate tenancies appearing in the 260 letter  dated 4.10.1943. The letter dated 4.10.1943  created contractual tenancy for a period of two years in respect  of the  two  shops and for a period of eleven  months  for  the adjoining houses. Obviously, the consent of the landlord for sub-letting  mentioned  therein  by giving  the  tenant  the option  of  sub-letting cannot, therefore, be  construed  as consent  for a period beyond the period of  the  contractual tenancy which was only two years in respect of two shops. It would neither be reasonable nor appropriate to construe that the  consent  was given for any period after expiry  of  the period  of contractual tenancy specified therein.  There  is nothing  in the said letter dated 4.10. 1943 10 suggest  the continuance of the tenancy after the expiry of the specified period of contractual tenancy and, therefore, there could be no occasion to contemplate any consent for sub-letting after expiry of the period of contractual tenancy of two years  in respect  of  the  two shops. This is  the  factual  position

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emerging  from  the aforesaid letter dated  4.10.1943  which alone is the basis of appellant’s assertion that sub-letting w.e.f. 1.4.1948 was with the written consent of the original lessor.  Admittedly,  creation  of  the  sub-tenancy  w.e.f. 1.4.1948 in respect of one of these shops was long after the expiry  of  the period of contractual tenancy of  two  years specifically mentioned in that letter. The question,  there- fore,  is: whether the landlord’s consent given in the  said letter  dated 4.10.1943 could be treated as  subsisting  for creation  of a valid sub-tenancy w.e.f. 1.4. 1948 after  the expiry of the period of contractual tenancy?     The  argument  of Dr. Chitale, learned counsel  for  the appellanttenant, which has also been adopted by Shri  Ghosh, learned  counsel  for the appellant sub-tenant  is  that  on expiry  of  the  contractual tenancy, the  tenant  became  a statutory  tenant by virtue of the restriction on his  evic- tion  except on one of the grounds for eviction provided  in the statute and, therefore, all the terms and conditions  of the  contractual tenancy became the terms and conditions  of the statutory tenancy. On this basis, it was argued that the written  consent of the landlord for sub-letting during  the period  of the contractual tenancy continued to  subsist  as one  of  the terms and conditions of the  statutory  tenancy also.  It was argued that for this reason, even  though  the subletting was made w.e.f. 1.4.1948 after the period of  the contractual  tenancy, yet it too must be deemed to  be  with the  written  consent of the landlord  which  was  available during  the period of the contractual tenancy.  Dr.  Chitale also referred to the fact that the first sub-letting in 1946 to  Arts  Palace  of the same shop which  was  later  sublet w.e.f.  1.4. 1948 to M/s Super Dry Cleaners was  also  after expiry of the period of two years of the contractual  tenan- cy. This fact, however, is not 261 material  in  the present case since the  first  sub-letting ended before commencement of the second sub-letting on  1.4. 1948  and  it is only the validity of  the  subsisting  sub- letting w.e.f. 1.4. 1948 which is in question in the present proceedings. Dr. Chitale relied on a number of decisions  of this  court in support of his contention’ that  the  written consent of the landlord for sub-letting during the period of contractual tenancy continued as one of the terms and condi- tions of the statutory tenancy when the sub-letting was made w.e.f.  1.4.1948. In reply, Shri Chidambram  contended  that the  written consent of the landlord for sub-letting is  not one of the terms which ensures to the benefit of the  tenant during subsistence of the statutory tenancy after expiry  of the  contractual tenancy. The decisions cited at the Bar  on this point are Damadilal and Others v. Parashram and Others, [1976] Supp. SCR 645; Y. Dhanapal Chettiar v. Yesodai Ammal, [1980]  1 SCR 334; Smt. Gian Devi Anand v. Jeevan Kumar  and Others,  [1985] Supp. 1 SCR 1; Mahabir Prasad Verma  v.  Dr. Surinder Kaur, [1982] 3 SCR 607; M/s. Shalimar Tar  Products Ltd.  v. H.C. sharma and Others, [1988] 1 SCC 70;  Shantilal Rampuria  and  Others v. M/s Vega  Trading  Corporation  and Others, [1989] 3 SCC 552; M/s. Bajaj Auto Limited v.  Behari Lal  Kohli, [1989] 4 SCC 39; Duli Chand (Dead) by  L.rs.  v. Jagmender Dass, [1990] 1 SCC 169 and Tara Chand and  Another v. Ram Prasad, [1990] 3 SCC 526.     The  decision in Damadilal’s case (supra) and others  in the same line related primarily to the question of heritable interest in the premises of the legal representatives of the deceased  tenant who was in occupation as statutory  tenant. Pointing out that the concept of statutory tenancy under the English  Rent  Acts and under Indian Statutes like  the  one

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with which we are concerned rests on different  foundations, it was held that the statutory tenant had a heritable inter- est in the premises which was not merely a personal interest but  an  interest in the estate like that of  a  contractual tenant.  On this conclusion, the right of legal  representa- tives of the statutory tenant to protect the possession  and prosecute the appeal against eviction order was upheld.  The main  question for decision in Damadilal’s case (supra)  was the heritable nature of the statutory tenancy and it was  in this  context that the terms and conditions of  a  statutory tenancy were held to be the same as those of the contractual tenancy preceding it. No question arose in Damadilal’s  case (supra) of the right of a statutory tenant to create a  sub- tenancy  after replacement of the contractual  tenancy  with the statutory ’tenancy. The observations made and the  deci- sion rendered in Damadilal’s case (supra) cannot, therefore, be construed as holding that a statutory tenant has a  right to create a sub-tenancy 262 during subsistence of statutory tenancy after expiry of  the contractual tenancy when the Rent Acts give the same protec- tion against eviction tO the tenant except on one or more of the  specified  grounds. Obviously, the  protection  to  the statutory  tenant and the heritable nature of the  statutory tenancy  providing the same protection against  eviction  to the tenant’s heirs does not further require conferral of the right  of inducting a sub-tenant which is not necessary  for enjoyment of the tenancy and the protection against eviction given by the Rent Acts. There is no rationale for  inferring or extending the landlord’s written consent for  sub-letting beyond the period of contractual tenancy for which alone  it is  given. No separate discussion of the later decisions  in the  same line is necessary because of the same  distinction in all of them.     One  decision  which. requires specific mention  and  is obviously  nearest on facts to the present case  is  Mahabir Prasad Verma v. Dr. Surinder Kaur, [1982] 3 SCR 607. In that case, the contractual tenancy was for a period of one  month from 1.4. 1974 to 30.4.1974 with the landlord’s consent  for sub-letting.  The  tenant continued to occupy  the  premises even  after expiry of the contractual tenancy  on  30,4.1974 and  inducted  therein a sub-tenant. The landlord  sued  for eviction of the tenant on the ground of unlawful sub-letting of  the premises which was a ground for eviction  under  the relevant Rent Act. There was some dispute about the time  of induction of the sub-tenant, it being claimed by the  tenant that  the  induction of the sub-tenant was in the  month  of April,  1974 during subsistence of the  contractual  tenancy while the landlord contended that the sub-letting was  after the  month of April, 1974. It was found as a fact  that  the tenant  had  sublet  in the month of April,  1974  when  the written consent of the landlord subsisted and not subsequent to  it  in May as claimed by the landlord. The crux  of  the question for decision therein was stated thus: "The crux of the question, therefore, is whether the sublet- ting  by  the tenant with the written  consent  of  landlord during  the  currency of the tenancy  becomes  unlawful  and illegal on the determination of the tenancy and furnishes  a ground for eviction within the meaning of S. 13(2)(ii)(e) of the Act." On the finding that the sub-tenant had been inducted  during the period of contractual tenancy on the basis of the  writ- ten  consent for subletting given by the landlord, the  sub- letting did not become unlawful merely because the  contrac- tual tenancy of the tenant came to an end and the protection

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against eviction to the tenant as a statutory tenant also 263 enured to the benefit of the lawful sub-tenant recognised by the statute. It was held as under: "Subletting  lawfully done with the written consent  of  the landlord does not become unlawful merely on the ground  that the  contractual tenancy has come to an end.  Subletting  to constitute  a valid ground for eviction must be without  the consent  in  writing of the landlord at the  time  when  the tenant sub-lets any portion to the sub-tenant.           A  subletting  by the tenant with the  consent  in writing  of  the landlord does not become  unlawful  on  the expiry  of  the contractual tenancy of  the  tenant,  unless there  is  any fresh sub-letting by the tenant  without  the written consent of the landlord Mere continuance in  posses- sion  of a sub-tenant lawfully inducted does not  amount  to any fresh or further sub-letting. We are, therefore,  satis- fied that in the instant case the tenant has not sub-let any portion  without the written consent of the  landlady  after the  commencement  of the Act  .....   Mere  continuance  of possession by the subtenants lawfully inducted by the tenant with  the written consent of the landlady contained in  rent note does not afford any ground to the landlady for eviction of  the tenant on the ground of sub-letting, as  the  tenant has  not sub-let after the commencement of the Act any  por- tion without the consent in writing of the landlady." (emphasis supplied) Of  all  the decisions cited at the Bar, this  decision  is, admittedly,  nearest on facts to the present case  with  the only difference that the sub-letting in the present case was after  expiry of the contractual tenancy and after the  com- mencement  of  the Act prohibiting  subletting  without  the written  consent  of  the  landlord  when  it  was  made  on 1.4.1948,  while  the sub-letting in Mahabir  Prasad’s  case (supra)  was during the period of contractual  tenancy  when the express written consent of the landlord for  sub-letting was  available. The principle for application,  however,  is the  same  with the only difference in the result  since  in Mahabir  Prasad’s  case  (supra) the  sub-letting  was  made during  subsistence  of  the contractual  tenancy  with  the written consent of the landlord. It is significant that  the judgment  in Mahabir Prasad’s case (supra) was by A.N.  Sen, J.  who also wrote the opinion in Gian Devi’s  case  (supra) relied on by Dr Chitale as one of the decisions in line with Damadilal’s case (supra). It is clear that A.N. Sen, J., who wrote the 264 opinion  of  the Bench in Mahabir Prasad’s case  (supra)  as well  as  in Gian Devi’s case (supra) did not  construe  the earlier decisions starting with Damadilal’s case (supra)  in the manner read by Dr. Chitale. If Dr. Chitale is correct in his  submission on this point, then the entire  emphasis  in Mahabir Prasad’s case (supra) on the sub-letting being  made during the period of contractual tenancy in April, 1974  and not thereafter being decisive of the validity of sub-letting was misplaced and a futile exercise. In our opinion this was not  so and the correct premise is that  landlord’s  written consent  for  sub-letting during the period  of  contractual tenancy cannot be construed as his consent subsisting  after expiry of the contractual tenancy. The submission of learned counsel  for the appellants runs counter to the clear  deci- sion in Mahabir Prasad’s case (supra) which, in our opinion, is in no way contrary to the decisions starting with Damadi- lal’s  case  (supra), the observations wherein  are  in  the context  of heritability of the statutory tenancy. In  fact.

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it  is  rightly not even contended by Dr. Chitale  that  the decision  in Mahabir Prasad’s case (supra) runs  counter  to Damadilall’s case Supra and other decisions following  them. This is sufficient to indicate that the appellants’  conten- tion is untenable.     There is some controversy between the parties about  the legislative history of the Rent Acts in the Bangalore  Civil Station  wherein  the suit premises is located, but  an  in- depth  consideration of that controversy is  not  necessary. The  only  question is: whether on 1.4.1948  when  the  sub- letting  was made in favour of M/s. Super Dry Cleaners,  the contractual  tenancy giving written consent for  sub-letting having  expired was the written consent of the landlord  for sub-letting necessary under the statute then in force? It is sufficient to state that the Bangalore House Rent and Accom- modation  Control  Act, 1946 was brought into  force  w.e.f. 1.10.1946 for a period of two years expiring on 1.10.  1948. Later  enactments were Mysore House Rent  and  Accommodation Control Act, 1951 and then Karnataka Rent Control Act,  1961 w.e.f.  31.12.1961. The suit for eviction was filed in  Sep- tember, 1975 on the grounds contained in clauses (f) and (h) of the proviso to sub-section 1 of Section 21 of the  Karna- taka Rent Control Act, 1961. in the Bangalore House Rent and Accommodation Control Act, 1946 which applied at the time of sub-letting  in the present case on 1.4.1948  the  provision for eviction of tenants was made in Section 9 thereof.  Sub- section  2  specifies the grounds on which  a  landlord  was entitled to seek eviction of his tenant. One such ground  in Sub-section  2  is of sub-letting and the  relevant  portion reads as under: "(iii) that the tenant has after the commencement of this 265 Law without the written consent of this landlord--. (a) sub-let the entire building or any portion thereof; or ,,     It is, therefore, clear that the written consent of  the landlord  for sub-letting was necessary under  the  relevant statute  applicable  on 1.4. 1948 when the  sub-letting  was made  in  the  present case. In fact.  this  requirement  of written consent of the landlord was the basis on which  both sides  argued the case and the main thrust of Dr.  Chitale’s argument was that such a written consent was to be found  in the letter dated 4.10.1943 of the original lessor. We  have, earlier, indicated that the landlord’s consent in the afore- said  letter dated 4.10.1943 was not available  on  1.4.1948 after expiry of the contractual tenancy. The rest is only  a logical corollary to this conclusion leading to the inevita- ble  result that induction of the sub-tenant M/s. Super  Dry Cleaners  w.e.f.  1.4.1948  by the  tenant  M/s.  Bhoolchand Chandiram was unlawful being made contrary to the  provision of law then in force which constitutes the ground for  evic- tion contained in clause (f) of Sub-section 1 of Section  21 of the Karnataka Rent Control Act, 1961. There is, thus,  no ground  to  differ with the conclusion reached by  the  High Court that the ground of sub-letting has been made out, even though our reasons are different.     On  the above conclusion that the ground of  sub-letting also  was rightly held proved by the High Court in  addition to  the  ground of landlord’s reasonable and bona  fide  re- quirement, the question of applicability of Sub-section 4 of Section 21 of the Karnataka Rent Control Act, 1961 does  not arise  and,  therefore, it is not necessary to  examine  the question  of comparative hardship. In that view of the  mat- ter, the appeals must fail.     Consequently, both the appeals are dismissed. In view of

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the fact that the appellants are carrying on their  business in  the suit premises for a long time and  will,  therefore, need  some reasonable time to shift to some other place,  we grant to the appellants time till 31.3.1991 for vacating the suit  premises and delivering vacant possession  thereof  to the landlord respondent No. 1, subject to undertaking in the usual terms being filed by the appellants within a period of four weeks. No costs. Y.  Lal                                        Appeals  dis- missed. 266