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PETITIONER: GOPPULAL

       Vs.

RESPONDENT: THAKURJI SHRIJI SHRIJI DWARKADHEESHJI & ANR.

DATE OF JUDGMENT: 12/03/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1969 AIR 1291            1969 SCR  (3) 989  1969 SCC  (1) 792  CITATOR INFO :  F          1974 SC2331  (3)  D          1975 SC2156  (12,13,15,16)  D          1980 SC1866  (7)  RF         1981 SC1284  (30)  R          1987 SC2016  (13)  APL        1989 SC 467  (10,11)  E&F        1990 SC 879  (6)

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

HEADNOTE: The respondent-landlord let out to the appellant four  shops and later one let out to him two more shops.  The respondent filed a suit alleging that subsequent to the letting of  the shops,  by  a  contract,  the  rent  was  consolidated   and increased and that the shops were sub-let by the  appellant, so the appellant be ejected from all the six shops under s. 13  (1) (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 tenancy  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,  reversed  the decree    of  the courts below, and held that there was  one integrated tenancy of    all the shops, that the four  shops were sub-let with the permission of the landlord,  but   the later  two were sub-let without permission, and that  having sub-let  a part of the premises without the permission,  the decree  for  possession  of all the shops  must  be  passed. appeal  to this Court, the appellant-tenant  contended  that (i)  the  tenancy  of  all  the  six  shops  were  not   one integrated;  (ii)  two  shops were not  sublet  without  the permission  of the landlord; and (iii) the  sub-letting  was

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before the Jaipur Rent Control Order, 1947 came into  force, which was repealed and continued by the promulgation of  the Rajasthan  Premises (Control of Rent & Eviction) Act,  1950, and therefore ejectment could not be claimed under s.  13(1) (e) of the Act. HELD  : The appellant could not be ejected from four  shops, but ought to be ejected from the two shops.    (i)    A  mere  increase or reduction of  rent  does  not necessarily  import the surrender of the existing lease  and the  grant of a new tenancy.  In the present case the  first two  courts on a review of the entire evidence came  to  the conclusion  that the increase of rent did not import  a  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 B] (ii) In  the  absence of any pleading and any issue  on  the question of sub-letting, the first two courts were in  error in  holding  that  the  two  shops  were  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-letting in the absence of proof that the landlord had then clear  knowledge of the sub-lease. [992 D] 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 this question the 990 High  Court was error in recording 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 after 1945. [992 E] (iii)     Section 13(1)(e) of the Act was intended to  apply to  sub-letting  before  the Act came into  force.   If  the tenant  had sub-let the premises without the  permission  of the landlord either before or after the coming into force of the ’Act, he was not protected from eviction under s.  13(1) (e), 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  present  perfect tense, by words "has  sub-let"  in  s. 13(1)(e) of the Act contemplates a completed event connected in some way with the present time.  The words take  within their  sweep any sub-letting which was made in the part  and has  continued  up to the present time.  It did  not  matter that the subletting was either before or after the Act  came into   force.   Further  ss.  26  and  27(1)  of   the   Act contemplated that grounds of eviction mentioned in s. 13 may have arisen before the Act came into force. [993 D-994 A]

JUDGMENT: 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 Regular Second Appeal No. 487 of 1962. C.   B.  Agarwala, Rameshwar Nath and Mahinder  Narain,  for the appellant. B.   R.  L.  Iyengar, S. K. Mehta and K. L. Mehta,  for  the respondents. The Judgment of the Court was, delivered by Bachawat, J. This appeal arises out of a suit for  ejectment by a landlord against a tenant.  The defendant is the tenant of six shops belonging to Thakurji Shri Shri  Dwarkadheeshji installed in the temple at Chaura Raasta, Jaipur.   Devendra Prasad is the adhikari or manager of the temple.  He gave  a

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notice to the defendant to quit the shop on August 1,  1957. On February 28, 1958, the deity and Devendra Prasad filed  a suit  against the defendant claiming recovery of  possession of  the six shops and Rs. 1,006/- on account of  arrears  of rent.   The  suit  was governed by  the  Rajasthan  Premises (Control  of Rent and Eviction) Act, 1950 (Act No.  XVII  of 1950).  The plaintiffs asked for ejectment of the  defendant on  the ground that he had sublet the six shops.  The  other grounds  of  ejectment were not established, and it  is  not necessary  to mention them.  The courts  below  concurrently found  that Devendra Prasad as’ the adhikari of  the  temple was entitled to give the notice to quit and to maintain  the suit. The trial court hold that (1) all the six shops were sub-let by the defendant; (2) the sub-leting was with the permission of 991 the  landlord  and  (3) the notice to  quit  was  waived  by acceptance  of rent subsequently accrued due.   Accordingly, the  trial  court dismissed the suit so far  as  it  claimed ejectment  and  passed  a decree for Rs.  1,006  on  account arrears of rent.  The plaintiff filed an appeal against the decree.   The  District Judge, Jaipur  City,  dismissed  the appeal.   The plaintiffs filed a second appeal  against  the decree.   The  High  Court  held  that  (1)  there  was   on integrated tenancy of all the six shops; (2) four shops were sub-let  with the permission of the landlord; (3) two  shops were sub-let without the permission of the landlord  towards the end of 1947; (4) the tenant having sub-let a part of the premises  without the permission of the landlord the  ground of  eviction- under clause (e) of s. 13(1) was made out  and the landlord was entitled to a decree for possession of  all the  six shops and (5) there was no waiver of the notice  to quit.   Accordingly, the High Court allowed the  appeal  and passed  a decree for eviction of the defendant 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 one integrated tenancy of all the six shops  ? (2)  were  the  two sub-let without the  permission  of  the landlord  towards  the end of 1947 ? and (3)  is  the  sub- letting a ground of ejectment under clause (e) of s. 13  (1) of the Rent Act ?           As to the first question, we find 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.  1501-  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 agreed to pay a consolidated rent of  Rs. 251/8/-  per month for all the six shops and to vacate  them by  July 31, 1957. In paragraph 5 of the  written  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 1953 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.   A mere increase or reduction of rent does not  necessarily import the surrender of the existing lease and the grant  of a  new  tenancy.  As  stated in Hill  and  Redman’s  Law  of Landlord and Tenant, 14th ed., art. 385, p. 493 :-               "But  a surrender does not follow from a  mere

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             agreement  made  during the  tenancy  for  the               reduction               992               or  increase  of rent, unless  there  is  some               special  reason to inter a new tenancy,  where               for  instance, the parties make the change  in               the  rent in the belief that tile old  tenancy               is at an end." In the present case the first two courts on a review of  the entire evidence came to the conclusion that the increase  of rent did not import a new demise.  This finding of fact  was binding on the High Court in second appeal.  The High  Court was  in  error  in 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  denial was false and that he sub-let the two shops  to his brotherin-law Ram Gopal.  There was no pleading nor  any issue  that the sub-letting of the two shops was  made  with the permission of the landlord.  It was not the case of  the defendant at any stage of the trial that he had obtained the permission  of the landlord for sub-letting the  two  shops. In  the absence of any pleading and any issue on  his  joint the  first two courts were in error in holding 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-letting in the absence of proof hat  the landlord had then clear knowledge 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-let towards the end of 1947 after the Jaipur Rent Control  Order 1947 came into force.  We can only say that the  sub-letting was sometime after 1945. As  to the third question : section 13(1) of  the  Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides :-               "Notwithstanding anything contained in any law               or  contract, no Court shall pass any  decree,               or  make any order, in favour of  a  landlord,               whether in execution of a 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 the promises without  the               permission of the landlord." 993 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  a  ground  of ejectment under paragraph 8 ( 1 ) (b) (ii) of that 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 reasoning it is sufficient to  say  that  the plaintiffs  have  not established that the  sub-letting  was

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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 a subletting 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  a 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. All 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 for the eviction of a  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  of  the grounds mentioned in  s.  13  and               under the circumstances specified in this Act.               27(1)  In  all suits for eviction  of  tenants               from  any premises in areas to which this  Act               has  been extended undersection 2, pending  on               the  date specified in the notification  under               that section, no decree for eviction shall  be               passed  except on one or more of  the  grounds               mentioned in section 13 and under the circum-               stances specified in this Act." Section  26  bars  the execution of a  decree  for  eviction passed  before the commencement of the Act except on any  of the  grounds mentioned in s. 13 and under the  circumstances specified  in the Act.  Likewise, s. 27(1) bars the  passing of a decree for eviction in a pending suit except on one  or more of the grounds under 994 s.   13  and under the circumstances specified in  the  Act. Sections’ 26 and 27(1) clearly contemplate that the  grounds of  eviction mentioned in s. 13 may have arisen  before  the Act came into force. The  argument that section 1 3 ( 1 ) (e) takes  away  vested rights  and  should not be given a retrospective  effect  is based  on fallacious assumptions.  Apart from the  Rent  Act the  landlord is entitled to eject the tenant on the  expiry of  the  period mentioned in the notice  to  quit.   Section 13(1)  protects the tenant from eviction 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 presuming that s.  13  (1) (e) is not intended to apply to sub-lettings before the  Act came  into force.  If the "tenant has sub-let" the  premises without  the  permission of the landlord  either  before  or after the coming into force of the Act, he is not  protected from eviction under s. 13 ( 1 ) (e), 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. 1 3 (1 ) (e) with regard to the two shops  on  the northern  side of the staircase of the temple.  With  regard to the four other shops the courts below concurrently  found that they were sublet with the permission of the  land-lord. In our opinion, the plaintiffs are entitled to a decree  for

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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  eviction  of  the defendant  from the other two shops on the northern side  of the staircase of the temple mentioned in paragraph 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. Y.P.                              Appeal allowed in part. 995