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PETITIONER: ANANDRAM CHANDANMAL MUNOT & ANR.

       Vs.

RESPONDENT: BANSILAL CHUNILAL KABRA(SINCE DECEASED) THROUGH L.RS.&ORS.

DATE OF JUDGMENT:       19/11/1999

BENCH: D.P.Wadhawa, M.Jagannadha Rao

JUDGMENT:

D.P.  Wadhwa, J.

     This  is landlords appeal.  There are two appellants. They  filed  a  suit for eviction against  the  respondents, numbering  three, under the provisions of the Bombay  Rents, Hotel  and Lodging House Rates Control Act, 1947 (for short, the  Act).   There  were four grounds of eviction  :   (1) non-payment  of  rent;  (2) subletting;  (3) damage  to  the premises;   and  (4)  bona  fide   need  of  the  appellants themselves.   Suit  of the appellants was dismissed  by  the trial court on all the grounds.  Appellants appealed against that  order.   The appellate Court, however, held  that  the first  respondent, the tenant, defaulted in payment of  rent and  was  liable  to eviction on that ground but  since  the second  respondent  was  a lawful sub-tenant, no  decree  or order   for   eviction  could  be  passed   against   second respondent.   Other  grounds  of eviction  were  again  held against  the  appellants.   Appellants  then  filed  a  writ petition in the Bombay High Court which was dismissed by the impugned  judgment  dated  December 22, 1995  by  a  learned single  Judge  of  the  High Court  with  only  modification holding  that  the  tenancy of the  first  respondent  stood determined on April 17, 1982 and not on March 1, 1975 as was held  by the lower appellate Court.  While the High Court in the  writ petition fixed the date determining the tenancy of the  first respondent on which date appeal of the appellants was  dismissed, the first appellate Court had fixed the date determineing the tenancy of the first respondent when notice issued by the appellants determined the tenancy of the first respondent.

     Suit  premises  is a shop in the city of  Ahmad  Nagar within   the   jurisdiction  of   the  Bombay  High   Court. Appellants  said that they had let out the shop premises  to the  respondent  who unauthorisedly sublet the same  to  the second  and  third respondents.  It has been held  that  the third  respondent  was an employee of the second  respondent and  this  finding has not been challenged before us by  the appellants.   In  the notice dated January 16, 1975 sent  by the  appellants  demanding  arrears  of  rent,  it  was  not mentioned  as  to  when there was subletting  by  the  first respondent  to  the second respondent.  Admittedly both  the respondents  are  brothers.   It was stated that  the  first respondent  had  inducted the second respondent to the  shop

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premises  by taking a substantial amount of "pagri".  In the suit,  however, it was mentioned that subletting was in  the year  1972 and 1973 and the rent was stated to be in arrears from  February 1, 1971 till the date of the filing the  suit which  was September 9, 1975.  Respondents denied that there was  any  subletting.  Their plea was in the  alternative one,  that both the respondents were brothers and were joint tenants  and  were working as partners and second, that  the first  respondent  left  the premises in late 50s  and  all through  thereafter  rent  had  been   paid  by  the  second respondent  even though the rent receipts were issued in the name  of the first respondent.  It was the second respondent who  signed on the counterfoils of the rent receipts.  First plea  that the respondents were joint tenants was negatived. It  was held that the second respondent became sub-tenant in 50s and was, thus, protected from being evicted even though the  ground  of  eviction  of   the  first  respondent,  the tenant-in-chief  being in arrears of rent, succeeded.  First appellate Court came quite heavily on the appellants holding that  they  raised a false plea of subletting from the  year 1972  and  1973.   A  presumption   was  drawn  against  the appellants,  and  in  our view rightly, as  they  failed  to produce  the  counterfoils of the rent receipts.   Only  two grounds  have been pressed before us in the present appeals: (1)  that since the first respondent was in arrears of  rent and  there was default in not complying with the  provisions of  Section  12  of the Act in order to  save  himself  from eviction,  not  only  the first respondent  but  the  second respondent,  assuming he is sub-tenant, would also be liable to  eviction;  and (2) there has been unlawful subletting by the  first  respondent to the second respondent.  As far  as the  second ground of subletting is concerned, we find  that the  appellants came to the court with a specific plea  that the suit premises were sublet by the first respondent to the second  respondent in 1972 and 1973.  Notice terminating the tenancy was given on January 16, 1975.  Courts have returned the  finding  that though there is subletting by  the  first respondent  to the second respondent but that subletting was before  1959.   That being so, Section 14 of the  Act  comes into play and saves the second respondent from eviction.  As noted  above,  High Court has held that the tenancy  of  the first  respondent stood determined w.e.f.  April 17, 1982 on the  date when the first Appellant Court delivered  judgment holding  that the first respondent was liable to eviction on the  ground under Section 12 of the Act.  Now from this date it  is the second respondent who becomes direct tenant under the  appellants.   Section 15 of the Act, as it now  stands, provides  that  it  shall not be lawful for  the  tenant  to sublet  the whole or any part of the premises let to him  or to  assign  or  transfer in any other  manner  his  interest therein.   After  the  commencement of the amending  Act  of 1973,  a tenant is barred even to give on licence the  whole or  any part of the premises let to him.  Sub-section (2) of Section  15  validates  any sub-tenancy created  before  the first  day of February 1973 and in that case a tenant is not liable  to  eviction under clause (e) of sub-section (1)  of Section  13  of the Act.  We may at this stage refer to  the relevant  provisions of law under the Act.  Section 5(11) of the  Act  defines  tenant which is as under:   -  "5  (11) "Tenant"  means any person by whom or on whose account  rent is payable for any premises and includes:-

     (a) such sub-tenants and other persons as have derived title under a tenant before the 1st day of February 1973;

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     (aa)  any person to whom interest in premises has been assigned  or  transferred  as  permitted  or  deemed  to  be permitted, under section 15;

     (b)  any person remaining, after the determination  of the  lease, in possession, with or without the assent of the landlord,  of  the  premises leased to such  person  or  his predecessor  who  has  derived title before the 1st  day  of February 1973;

     (bb)  such  licensees as are deemed to be tenants  for the purposes of this Act by section 15A;

     (bba) the State Government, or as the case may be, the Government  allottee referred to in sub-clause (b) of clause (1A), deemed to be a tenant, for the purposes of this Act by section 15B;

     (c) (i) in relation to any premises let for residence, when  the tenant dies, whether the death has occurred before or  after  the commencement of the Bombay Rents,  Hotel  and Lodging  House  Rates  Control (Amendment)  Act,  1978,  any member  of  the tenants family residing with the tenant  at the  time  of his death, or, in the absence of such  member, any  heir  of  the  deceased tenant, as may  be  decided  in default of agreement by the Court;

     (ii)  in relation to any premises let for the purposes of  education,  business, trade or storage, when the  tenant dies,  whether  the death has occurred before or  after  the commencement  of  the said Act, any member of  the  tenants family  using the premises for the purposes of education  or carrying on business, trade or storage in the premises, with the  tenant at the time of his death, or, in the absence  of such  member,  any  heir of the deceased tenant, as  may  be decided in default of agreement by the Court.

     Explanation.-  The  provisions  of   this  clause  for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed always  to have applied, even on the death of any subsequent tenant,  who  becomes tenant under these provisions  on  the death of the last preceding tenant."

     Section  12  deals  with the ground of  eviction  when tenant  is  in arrears of rent and is as under:  - "12.   No ejectment  ordinarily to be made if tenant pays or is  ready and  willing  to  pay standard permitted increases.   (1)  A landlord shall not be entitled to the recovery of possession of  any premises so long as the tenant pays, or is ready and willing  to  pay,  the  amount  of  the  standard  rent  and permitted  increases,  if any and observes and performs  the other  conditions  of  the tenancy, in so far  as  they  are consistent with the provisions of this Act.

     (2)  No  suit  for  recovery of  possession  shall  be instituted  by  a landlord against tenant on the  ground  of non-payment of the standard rent or permitted increases due, until  the  expiration  of one month next  after  notice  in writing  of  the  demand of the standard rent  or  permitted increases has been served upon the tenant in manner provided in section 106 of the Transfer of Property Act, 1882."

     Sub-section  (3) of Section 12 as it stood before  its amendment in 1986 was as follows:-

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     "3(a) Where the rent is payable by the month and there is  no  dispute  regarding the amount of  standard  rent  or permitted  increases,  if  such  rent or  increases  are  in arrears  for  a period of six months or more and the  tenant neglects to make payment thereof until the expiration of the period  of one month after notice referred to in sub-section (2),  the Court shall pass a decree for eviction in any such suit for recovery of possession.

     (b)  In any other case no decree for eviction shall be passed  in  any such suit if on the first day of hearing  of the  suit  or on or before such other date as the Court  may fix,  the tenant pays or tenders in Court the standard  rent and permitted increases then due and thereafter continues to pay  or  tender in Court regularly such rent  and  permitted increases  till  the suit is finally decided and  also  pays costs of the suit as directed by the Court."

     After its amendment as aforesaid, it reads:

     "(3)  No  decree for eviction shall be passed  by  the Court  in any suit for recovery of possession on the  ground of  arrears of standard rent and permitted increases if,  on the  first  day of hearing of the suit or on or before  such other  date as the Court may fix, the tenant pays or tenders in  Court the standard rent and permitted increases then due and  together with simple interest on the amount of  arrears of such standard rent and permitted increases at the rate of nine per cent per annum;  and thereafter continues to pay or tenders  in Court regularly such standard rent and permitted increases  till  the suit is finally decided and  also  pays costs of the suit as directed by the Court;

     Provided   that,  the  relief   provided  under   this sub-section  shall  not  be available to a  tenant  to  whom relief  against  forfeiture  was  given  in  any  two  suits previously instituted by the landlord against such tenant."

     Section  13 of the Act gives various other grounds for eviction of the tenant.  This Section in relevant part is as under:-

     "13.   When  landlord  may  recover  possession.   (1) Notwithstanding  anything contained in this Act but  subject to  the provisions of Sections 15 and 15A, a landlord  shall be  entitled  to recover possession of any premises  if  the Court is satisfied

     (a) to (d)

     (e)  that  the  tenant  has,  since  the  coming  into operation  of  this  Act, unlawfully sublet,  or  after  the commencement  of  the Bombay Rents, Hotel and Lodging  House Rates  Control  (Amendment) Act, 1973, unlawfully  given  on licence,  the  whole or part of the premises or assigned  or transferred in any other manner his interest therein;

     (f) to (l) "

     Section  14 contains provision as to when a sub-tenant becomes a tenant, which is as under:  -

     "14.   Certain  sub-tenants  and licensees  to  become

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tenant  on determination of tenancy.  (1) When the  interest of  a  tenant of any premises is determined for any  reason, any sub-tenant to whom the premises or any part thereof have been  lawfully  sub-let before the 1st day of February  1973 shall,  subject to the provisions of this Act, be deemed  to become  the  tenant  of the landlord on the same  terms  and conditions  as  he  would have held from the tenant  if  the tenancy had continued.

     (2)  Where the interest of a licensor, who is a tenant of  any premises is determined for any reason, the licensee, who  by section 15A is deemed to be a tenant, shall, subject to  the  provisions  of this Act, be deemed  to  become  the tenant  of the landlord, on the terms and conditions of  the agreement consistent with the provisions of this Act."

     When  the Act was enacted a sub-tenant was saved  from the  eviction  if  sub-tenancy  had been  created  prior  to February  13, 1948.  Under the Ordinance of 1959, which  was subsequently replaced by the Bombay Act 49 of 1959, a lawful sub-tenancy  created  prior to May 21, 1959 was also  saved. Again  by  the amending Act (Bombay Act 18 of  1987)  lawful sub-tenancies  created prior to February 1, 1973 were saved. Thus  a  sub-tenant  is protected if sub-tenancy,  which  is lawful, is created prior to February 1, 1973.

     Section 15 in relevant part is as under:-

     "15.   In  absence of contract to the contrary  tenant not  to  sub-let or transfer or to give on licence.     (1) Notwithstanding  anything contained in any law, but  subject to  any  contract  to the contrary, it shall not  be  lawful after  the coming into operation of this Act for any  tenant to  sub-let the whole or any part of the premises let to him or  to  assign or transfer in any other manner his  interest therein  and  after the date of commencement of  the  Bombay Rents,  Hotel  and Lodging House Rates  Control  (Amendment) Act,  1973,  for any tenant to give on licence the whole  or part of such premises:

     Provided that the State Government may by notification in  the Official Gazette, permit in any area the transfer of interest  in  premises  held under such leases or  class  of leases  or  the giving on licence any premises or  class  of premises  and  to  such extent as may be  specified  in  the notification."

     As  noted  above, the fact is now a tenant  is  barred from even giving on licence any premises or any part thereof after February 1, 1973 unless of course contract between him and  the  landlord  so provided.  Proviso  to  the  Section, however,  removes  the  bar in the  circumstances  mentioned therein.

     Section  28 of the Act deals with jurisdiction of  the Courts.

     Mr.   Gopal  Jain, learned counsel for the  appellants realised the weakness of his case for eviction on the ground of  sub-tenancy as provided in clause (e) of sub-section (1) of Section 13 of the Act.  Creation of sub-tenancy in favour of  the  second respondent by the first respondent has  been proved  to be lawful from the date much earlier to the  year 1959.   Under  Section  14 of the Act second  respondent  is deemed  to have become tenant of the appellants on the  same

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terms and conditions as they would have held from the tenant if the tenancy had continued.  Mr.  Jain then contended that since  the tenant had contravened the provisions of  Section 12 of the Act he was liable to eviction and since the second respondent,  the  sub-tenant claims through him, he is  also liable  to eviction inasmuch under clause (11) of Section  5 of the Act tenant includes sub-tenant.  We do not think that is  the correct interpretation to be given to clause (11) of Section  5  of  the  Act.   Under  Section  14  of  the  Act sub-tenant  becomes  tenant  only after the tenancy  of  the tenant is determined.  In the notice dated January 16, 1975, the  appellants  have  claimed  rent  only  from  the  first respondent.   It is his tenancy which is determined and  the allegation  is that the first respondent inducted the second respondent to the suit premises.  In the suit also it is the first  respondent  against whom ground for eviction  on  the ground of non-payment of rent under Section 12 of the Act is advanced.   The  first Appellate Court rightly held  that  a money  decree  for  non-payment  of rent  cannot  be  passed against  the  second  respondent  when   it  was  the  first respondent  who  was  in arrears of rent as claimed  by  the appellants  and that the second respondent becomes liable to pay  rent of the premises only from the date tenancy of  the first  respondent  is determined.  Then Mr.  Jain wanted  to invoke  the  doctrine  of  privity of  estate  and  in  that connection  he  referred  to  a decision of  this  Court  in Surendra  Kumar  Jain vs.  Royce Perira [(1997) 8 SCC  759]. In  this case the Court said that findings as arrived at  by the appellate court are findings of fact and were not liable to be interfered with by the High Court under Article 226 of the  Constitution.  In that case while the  respondent-owner had  filed  a suit against the appellant for possession  and for  the  arrears  of paying guest  charges,  appellant  had contended  that  he was not a paying guest but was a  tenant and  in support of his plea he relied on a letter written by the  owner  to  the  Bombay  Municipal  Corporation  in  tax proceedings where he said that the appellant was paying rent of  Rs.200/-  per  month.   The  respondent-owner,  however, produced  a letter of the appellant wherein he admitted that he was a paying guest.  On this finding the Court dealt with the  question of the doctrine of privity of estate as  under :-

     "8.   So  far as the contention of the appellant  that the  respondent informed the Corporation in tax  proceedings that  the  appellant was paying rent of Rs.200 p.m., we  may state that the said statement even if true stood rebutted by the  appellants letter dated 31.1.1974 admitting he was  in possession  as a "paying guest".  Apart from that as pointed out  by  the Privy Council in Alluri Venkatapathi  Raju  vs. Dantuluri  Venkatanarasimha  Raju (AIR 1936 PC 264:   63  IA 397) (AIR at pp.  268-269):

     "it  sometimes  happens that persons  make  statements which  serve their purpose or proceed upon ignorance of  the true  position;   and it is not their statements, but  their relations  with  the  estate,  which should  be  taken  into consideration in determining the issue."

     The  above  observations were followed and applied  by Subba  Rao,J.   (as  he  then was) in  Rukhmabai  vs.   Lala Laxminarayan (AIR 1960 SC 335:  (1960) 2 SCR 253)

     We,  however, fail to see as to how the appellants can take  advantage  of the doctrine put forth is applicable  in

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the  present case in view of the specific provisions of  law and  facts of the case, Assertion of Mr.  Jain was that when rent  is  in  arrears,  it  is  qua  the  premises  and  the sub-tenant  who  is  occupying the premises  would  also  be liable  for  default in payment of rent of the premises  and thus  could  be  evicted along with the main  tenant.   This argument  overlooks the relationship of sub-tenant with  the main tenant when he would be paying the rent of the premises under  his  sub-tenanty and the requirement of notice  under Section  12  of the Act.  Definition of tenant under  clause (11)  of Section 5 of the Act does include also a sub-tenant inducted  before  February  1, 1973 and it  means  when  the sub-tenant  becomes  tenant  on  the  determination  of  the tenancy  of the main tenant.  Reference was also made by Mr. Jain  to  another  decision of this Court in  Arjun  Khiamal Makhijani vs.  Jamnadas C.  Tuliani and others (1989 (4) SCC 612)  to contend that it is not necessary for us to lean  in favour of the tenant.  We do not think this Court in any way said  to  that effect in that case for Mr.  Jain to  advance such  a  plea.  That case was also under the Act  where  the Court  was  concerned with the effect of sub-section (3)  of Section  12  of the Act before its amendment in 1986 as  the decree in that suit for eviction had been executed when that provision was in force.  The appeal before this Court was by the  tenant  and reliance was placed on sub-section  (3)  of Section  12  after its amendment in 1986.  In  that  context this Court observed as under:  -

     "7.   Faced with this difficulty, learned counsel  for the  tenants  urged  that  since the Act  was  a  beneficial legislation the tenants having deposited the arrears of rent within  the  time  granted  by the Trial  Court  and  having continued  to deposit future rent thereafter the decree  for their eviction deserves to be reversed by this Court.  In so far  as this submission is concerned, it may be pointed  out that  in  Ganpat  Ram Sharma and others  v.   Gayatri  Devi, [1987]  3 SCC page 576, while dealing with almost a  similar Rent Control Legislation it was held:

     "But  quite apart from the suit being barred by  lapse of  time,  this is a beneficial legislation,  beneficial  to both  the  landlord and the tenant.  It protects the  tenant against  unreasonable eviction and exorbitant rent.  It also ensures  certain  limited rights to the landlord to  recover possession on stated contingencies."

     "9.   When the Act contains provisions, some of  which fall  under  the  category of  beneficial  legislation  with regard  to  the  tenant and the others with  regard  to  the landlord,  the  assertion  that  even with  regard  to  such provisions  of  the  Act  which fall under  the  purview  of beneficial  legislation for the landlord an effort should be made  to  interpret them also in favour of the tenant  is  a negation  of  the  very  principle of  interpretation  of  a beneficial legislation on which reliance is placed on behalf of  the tenants.  The argument indeed is self-defeating  and only  justifies  the cynical proverb--Heads I win tails  you lose.   It  is  difficult  to  countenance  the  sentimental approach  made  by learned counsel for the tenants, for  the simple  reason  that as pointed out in Latham v.R.   Johnson and  Nephew  Ltd.,  [1913]  1 KB 398 (408)  sentiment  is  a dangerous  will-o-the-wisp to take as a guide in the search for legal principles."

     Mr.  Nikhil Sakhardande, learned counsel appearing for

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the  second respondent, contended that when the interest  of tenant is determined either under Section 12 or Section 13 a sub-tenant would step into the shoes of the tenant and would become  direct  tenant of the landlord from that  date.   In support of his submissions he referred to a decision of this Court  in  Hiralal  Vallabhram vs.  Kastorbhai  Lalbhai  and others  (1967  (3)  SCR 343) and also to a decision  of  the Bombay  High  Court  in   Birdichand  Hiralal  Bhandari  vs. Sadashiv Maruti Borhade (1971 (73) Bom.L.R.  887).

     In Hiralal Vallabhram vs.  Kastorbhai Lalbhai and ors. [1967  (3)  SCR 343] landlord had filed a suit for  eviction under Section 28 of the Act on two grounds namely:  (1) that the  rent  was in arrears for six months and (2) that  there was unlawful subletting by the three original tenants to the appellant,  who  was impleaded as fourth respondent.  It  is not  necessary to refer to various pleadings of the  parties and  how the matter reached this Court.  The argument  which this  Court  was considering was that Section 14 of the  Act related  to contractual tenancy and the interest of a tenant is  determined as soon as notice determining the tenancy  is given  and,  therefore, immediately the period fixed in  the notice expires, the contractual tenancy comes to an end, and if  there  is  a  sub-tenant he becomes the  tenant  of  the landlord  on the same terms and conditions as he would  have held  from  the tenant if the tenancy had  continued.   This Court observed as under:-

     We  are of opinion that in the context of the Act this is  not the meaning to be given to the words "is  determined for any reason".  These words in the context of the Act mean that  where  the  interest  of  a tenant  comes  to  an  end completely,   the  pre-existing  sub-tenant   may,  if   the conditions  of s.  14 are satisfied be deemed to be a tenant of  the landlord.  The interest of a tenant who for purposes of S.  14 is a contractual tenant comes to an end completely only  when he is not only no longer a contractual tenant but also  when  he  has lost the right to remain  in  possession which  s.   12  has  given to him and is no  longer  even  a statutory  tenant.   In other words s.  14 would  come  into play  in favour of the sub-tenant only after the tenancy  of the contractual tenant has been determined by notice and the contractual  tenant has been ordered to be ejected under  S. 28  on  any of the grounds in s.  12 or s.  13.   Till  that event  happens  or till he gives up the tenancy himself  the interest  of  a tenant who may be a contractual  tenant  for purposes  of s.  14 cannot be said to have determined  i.e., come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord."

     It will be thus seen that interest of a sub-tenant who satisfies  the conditions of Section 14 ripens into that  of tenant when interest of the main tenant (who inducted him as sub-tenant)  is  determined by an order of  eviction  passed against  him.   It  was relying on this judgment  that  High Court  in  the  impugned  judgment   held  that  the  second respondent  became tenant of the appellants with effect from April  17,  1982, the date when the appellate  court  passed order   of  eviction  against   the  first  respondent.   In Birdichand  Hiralal  Bhandari vs.  Sadashiv  Maruti  Borhade (1971 (73) Bom.L.R.  887) the plaintiff landlord had filed a suit  for ejectment against the two defendants.  He  pleaded that  the first defendant, who was his tenant, failed to pay arrears  of rent for more than six months after notice under Section  12(2)  of  the  Act and that  he  had  sub-let  the

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premises  to  the second defendant in contravention  of  the provisions  of the said Act.  While the first defendant  did not contest the suit the second defendant contended he was a lawful  sub-tenant  of the first defendant inasmuch  as  his sub-lease  was  created  before  the   date  of  the  Bombay Ordinance  of  1959 and, therefore, he could not be  evicted for  breach  of Section 12(3) by the first  defendant.   The Court  held that the possession of the second defendant  was protected  by  the  Bombay  Rent   Act  and  he  could  not, therefore,  be evicted for failure of the first defendant to comply  with the provisions of sub-section (3) to Section 12 of the Act.  A single Judge of the High Court, who delivered the  judgment,  repelled  the  contention  of  the  landlord wherein  he  said  even if it was assumed  that  the  second defendant was a lawful sub-tenant, he was still liable to be evicted along with the main tenant, once the main tenant was found  liable to eviction under Section 12(3) of the  Bombay Rent  Act  due  to his failure to pay the arrears  of  rent. High Court said:

     "Now,  it would have been so under the ordinary law of landlord  and  tenant  under which the  sub-  tenant  cannot possess or claim any better or independent rights apart from the one that can be claimed through the main tenant.  He has to  sink or swim with the main tenant.  But not so under the Rent  Act.  Defendant No.  2 is proved to have been a lawful sub-tenant.   Sub-lease in his favour is proved to have been created before 1957.  Definition of the word tenant, in s. 5(11)(a)  includes  sub-tenant inducted lawfully before  the amendment of s.  15(2) of the Rent Act by Ordinance No.  III of  1959.   It  will not make any difference as  to  whether sub-tenant  is in possession of the whole or only a part  of the  premises  leased  to the tenant.  Implication  of  this inclusive  definition  is  that protection afforded  to  any tenant against his landlord under any provisions of the Rent Act, is also available to the sub-tenant against his lessor, the  main tenant, in the same manner and to the same effect, as  any  other  main tenant himself can  claim  against  the landlord.    By  creating  sub-lease   before  the  date  of Ordinance No.  III of 1959, the tenant ceases to furnish his landlord any cause of action for eviction under s.  13(1)(e) of  the  Rent Act.  Such sub-leases are rendered now  lawful even  though  these were not so when the same were  created. The  landlord has to suffer such sub-leases and put up  with the  possession  of the premises or portion thereof  by  the sub-tenants  without  any  privity of  contract  with  them. Section  14 then confers a right on the sub-tenant to  claim the  status of tenants on the determination of the  interest of  the  tenants  in  the premises.   This  right  is  again available  to the sub-tenants, whether the landlords like to or not and in spite of them.

     It  is  thus  clear that the protection  available  to sub-tenants  under  the Rent Act is not the creation of  the contract  but is statutory.  It does not depend upon will or pleasure  of the landlord or the main tenant and also cannot depend  on  their act or omission.  This protection  of  the Rent  Act is made available independently of the rights, and acts, or omission of the main tenant.

     Section 12 of the Rent Act affords a sort of guarantee of  the  continuance  of the tenancy and,  secondly  of  the possession  of premises to the tenants against his  landlord as  long as he is ready and willing to pay rent and to abide by the term of the tenancy.  Any sub-tenant also is entitled

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to claim the same guarantee and protection, in regard to the premises  or portion in his possession as against his lessor i.e.   the  main tenant.  This can be denied to him only  on his  failure  to pay rent to his lessor i.e.  tenant, or  on his  non-compliance  with  the terms of the  tenancy.   This protection  obviously cannot be denied to him on failure  to pay  rent  by  the tenant to the landlord or breach  of  any terms of the tenancy by the tenant.  Such act or omission of the  tenant may result in the loss of protection of the  Act to him in regard to the portion in possession of the tenant. This  may, however, result in the determination of  tenants interest in the portion of the premises in possession of the sub-tenant  and  confer the status of a tenant on him.   But mere  non-payment of rent by the main tenant to the landlord cannot  result  in  the  liability  of  the  sub-tenant  for eviction.   This  militates  against   the  guarantees   and protection  afforded by this very section to the  sub-tenant under s.  14 which contemplates reversion of tenants rights in  such  contingency  on  the sub-tenant  and  not  on  the landlord.   No sub-tenant ever will be able to either  claim tenants  rights under s.  14 if his rights in the  premises are  to determine along with the tenant, for the  landlords act  or  omission without his own any such failure, act,  or omission.   It  shall also have to be borne in mind that  s. 12(3)  of  the Rent Act, does not appear to aim so  much  at landlords  right  of  resumption  of  the  premises  as  at ensuring  the receipt of the rent by him.  Possession by the landlord  in  such contingency is more the result  than  the object."

     We  may also refer to two more decisions of the Bombay High  Court    one rendered by the Division  Bench  in  The Indian  Coffee  Workers Cooperative Stores Ltd.   Vs.   Mrs. Bachoobai Cowsjee Dhanjeeshaw (1964 (66) Bom.L.R.  338), and another  by  single Judge in Mangharam Chubarmal  vs.   B.C. Patel (1971 (73) Bom.L.R.  140).

     In  The Indian Coffee Workers Cooperative Stores  Ltd. Vs.   Mrs.   Bachoobai Cowasjee Dhanjeeshaw [1964  (66)  BLR 338]  a Division Bench considered the scope of Section 14 of the Act and observed as under:-

     "There  is  another aspect from which s.  14  must  be considered.   The right of the sub-tenant is subject to  the provisions  of  the  Act  and not an  absolute  right.   The section,  therefore, is controlled by the other sections  of the Act, and if they entitle the landlord in a given case to obtain  possession, s.  14 cannot come in the way.   Section 12   entitles   the  landlord  to  obtain   possession   for non-payment  of  rent  and s.  13 for  other  reasons.   If, therefore,  the  landlord is entitled to  obtain  possession under  any of these sections s.  14 must give way.  It would be  preposterous to suggest that a tenant who has  destroyed the value of the property by unauthorized alterations should be  able to successfully prevent the landlord from obtaining possession by parting it to a sub-tenant or who has not paid rent  for  years should prevent the landlord from  obtaining possession  by inducting a sub-tenant when notice is  given. Again  in  a case where a landlord has sued both the  tenant and  sub-tenant  for possession on the ground that he  wants the  premises for his personal use it could not be  intended that he must thereafter start another litigation against the sub-tenant.   For if s.  14 is allowed to have  uncontrolled effect  after  the termination of the tenants  tenancy  the sub-tenant  would become the tenant, and then he could claim

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a  fresh notice for eviction.  The section, we think,  means that the sub-tenant would be deemed to have become a tenant, if  the  landlord is otherwise not entitled  to  possession. Since  by  s.  15 as amended, sub-tenancy and assignment  in the  case of specified sub-tenants or assignees is  rendered legal,  landlords right to recover possession on the ground of  sub-letting or assignment in such a case is taken  away, the  sub-tenant  or  assignee would be  entitled  to  retain possession."

     In Mangharam Chubarmal vs.  B.C.  Patel [1971 (73) BLR 140] a single Judge Bench of the Bombay High Court, however, did  not  wholly  agree with the interpretation put  by  the Division  Bench  in  the case of The Indian  Coffee  Workers Cooperative  Stores  Ltd.   Vs.   Mrs.   Bachoobai  Cowasjee Dhanjeeshaw  [1964 (66) BLR 338].  According to the  learned single Judge the interpretation put on Section 14 of the Act by  the  Division  Bench  would render  the  Section  wholly nugatory.  He said as under:-

     "A  landlord  has  no  privity of  contract  with  the sub-tenants  of his tenant.  Sub-tenants are answerable  for performing the various conditions of sub-tenancy only to the tenant who is their landlord for the time being.  It is only when  the tenants tenancy is determined either by surrender or  by  a  decree in ejectment passed against him  that  the sub-tenants  become  the lawful tenants of the  landlord  by virtue  of s.  14 of the Rent Act.  Once they get that legal status  or character, then they are to hold the premises  on the same terms and conditions as they held before subject to the  other  provisions  of  the Rent  Act.   But  the  words "subject  to the other provisions of the Rent Act" will have to  be  understood  as  giving  them  the  same  rights  and privileges  as are conferred on the statutory tenants  whose contractual  tenancy for one reason or the other has come to an end.

     Then  the  learned  single Judge referred  to  various grounds of eviction as given in Section 13(1) of the Act and sought  to draw a distinction between the grounds which  are concerned  mainly  with  the premises and those,  which  are personal  to the tenant.  We need not, however, go into this question  as to which grounds are personal to the tenant and which  are  mainly concerned with the premises and what  are the  grounds  of  eviction  where   tenant  cannot  get  the protection.   Learned single Judge in Mangharam  Chubarmals case  [1971 (73) BLR 140] then proceeded further to make the following observations:-

     "If  in  a suit against the tenant other  persons  are joined  on the allegation that they are sub- tenants and  if an eviction is sought only on the grounds which are personal to  the tenant, then a decree in ejectment against him  will result  in  conferring direct tenancy rights on  the  lawful sub-tenants.   They cannot be ejected in that suit on  those grounds.   On  the  other  hand,   if  the  landlord   seeks possession  on  the  grounds which are not personal  to  the tenant and which concern the premises themselves, then it is open  to  the landlord in the same suit to plead  and  prove those  grounds not only against the tenants but against  the other  persons impleaded in the suit and who are  ultimately held  to  be lawful sub-tenants.  In such a case the  issues would  be heard and decided between the landlord on the  one side  and the tenants and sub-tenants on the other.  If  the sub-tenants  are not impleaded even in such a suit then  the

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landlord,  after obtaining a decree against the tenant, will have  to  file a fresh suit against the sub-tenants, who  by then  had  become his direct deemed tenants by virtue of  s. 14  of the Rent Act.  In my opinion this would be the proper interpretation  of s.  14 of the Rent Act when that  section is read along with the other relevant provisions of the Rent Act.   The construction indicated by the Division Bench will make  s.   14  wholly  meaningless.  I will  give  only  one illustration  to  indicate the fallacy which is inherent  in that  interpretation.   The tenant may commit rent  defaults for more than six months.  He may not have any defence to an action  founded  on rent defaults.  Under s.  12 (3)(a)  the Court  has no option but to pass a decree against him.   But the  sub-tenants  may  have regularly paid the rent  to  the tenant  and their only fault will be that during the term of their  sub-tenancy  they  have not forced or  compelled  the tenant to pass on the money received by him to the landlord. It will be wholly unreasonable to expect the sub- tenants to perform  such  an onerous duty.  In my opinion it is one  of those  grounds  which is personal to the tenant and  if  his tenancy  comes  to  an end on that ground,  the  sub-tenants become  the direct tenants by virtue of the provisions of s. 14 of the Rent Act and they will be protected under the Rent Act."

     Though  the  learned single Judge disagreed  with  the Division  Bench,  he, however, left the matter at  that  and proceeded  to  decide the matter before him on other  points and  therefore,  did  not think it necessary  to  refer  the matter  to  a  larger Bench.  We generally  agree  with  the observations  of  the learned single Judge and may  add  one more  illustration  to  one  given by him.   Clause  (f)  of sub-section  (1)  of Section 13 of the Act provides  that  a landlord  is entitled to recover possession of the  premises if  the court is satisfied that the premises were let to the tenant for use as a residence by reasons of his being in the service  or employment of the landlord, and that the  tenant has  ceased,  whether  before  or   after  the  coming  into operation  of this Act, to be in such service or employment. When  eviction  is sought on this ground as given in  clause (f)  it  is difficult to see how a sub- tenant can become  a direct  tenant of the landlord when the tenancy of the  main tenant  is  determined.   The exposition of law in  the  two aforesaid  judgments  of the Bombay High Court in  Mangharam Chubarmal  vs.   B.C.   Patel  [1971 (73) BLR  140]  and  in Birdichand  Hiralal  Bhandari vs.  Sadashiv  Maruti  Borhade (1972 (73) Bom.L.R.  887), which held the field for the last more than 25 years, is correct and there is nothing for this Court  to take a different view of the matter.  When Section 14 of the Act uses the expression "subject to the provisions of  this Act" it does not merely mean that sub-tenant  would become subject to the provisions of the Act after he becomes direct tenant under the landlord on the determination of the tenancy  of the main tenant.  What this expression means  is that  a  sub-tenant  cannot become a direct  tenant  in  all circumstances,  i.e., on all grounds of eviction against the main  tenant  but that would depend upon the nature  of  the ground  of  eviction  as may be advanced and proved  by  the landlord.   We,  therefore, do not find any merit  in  these appeals and we dismiss the same with costs.