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CASE NO.: Appeal (civil)  6769 of 2001

PETITIONER: M/s Jagannath Kasturchand Yarn Merchants

RESPONDENT: Raj Kumar & Anr

DATE OF JUDGMENT: 10/12/2007

BENCH: A.K.MATHUR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.6769 OF 2001

A.K.MATHUR,J.

1.            This appeal is directed against the order dated  13.2.2001 passed by the learned single Judge in Second  Appeal No. 514/90  whereby  the learned single Judge has  allowed the  appeal and passed a decree of eviction of the  suit premises under Section 12(1)(b) of the M.P.  Accommodation Control Act 1961 (hereinafter referred to as  "the Act").  Aggrieved against the said order the present  appeal has been filed by the respondent (appellant herein). 2.           Brief facts which are necessary for the disposal of  this appeal are as under:             3.         The suit was initially instituted by Smt.Bhuri Bai  who died during the pendency of the appeal and  therefore  her name was deleted from the array of  the appellants  and  her son continued as an appellant/plaintiff.   The deceased  plaintiff was the  owner of the suit premises house No. 739  Lordganj, Jabalpur.  The suit premises was purchased by her  son  and deceased Smt.  Bhuri Bai from the original owner.   When the  suit premises was purchased the defendant  (appellant herein) was a tenant therein. Along with him  other defendant was also residing in  suit premises.  The   tenancy was for residential as well as   for non-residential  purposes.    The plaintiff (respondent herein)  filed a suit  for eviction on the ground that the suit premises is  required bona fide for his /her residence as well as for  starting business.   Learned counsel  for the  respondent  (herein)  did not press the ground for eviction under  Section 12(1)(e) and (f) of the Act.  The   only ground was   taken that the suit premises was illegally sub-let to the  appellant(herein) and, therefore, the decree for eviction  was sought on the ground of sub-letting. The suit was   dismissed by the  trial court.  The first appellant court  also dismissed the  appeal and aggrieved against  that order  the second appeal was preferred.  The following substantial  question of law was formulated which reads as under: "Whether in the facts and circumstances of the  case the courts below erred in law is finding that  the plaintiffs were not entitled to evict the  defendants respondents from the suit accommodation  on the ground specified in  clauses (b) (e) and  (f)  of sub-section (1) of Section 12 of the M.P.  Accommodation Control Act."

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4.       The respondent/plaintiff  only prhssed the ground  of  Clause (b) of sub-Section (1) of Section 12 of  the Act.    It was admitted position that the appellant/defendant was  sub-tenant in the suit premises.  The tenant claimed that   he was  sub-tenant since 1928.  However, sub-tenancy was   created 60 years back i.e. somewhere in 1947.    The present  act came into force in  1961. Though the plaintiff admitted  that the  sub-tenancy was lawfully created as it was  permissible to create sub-tenancy under section 108(j) of  the  Transfer of Property Act.  But it was contended that by  virtue of Sections 14,15  and  16  of the Act, sub-tenancy  became unlawful entailing a decree for eviction under  Section 12(1)(b) of the act. Learned single Judge after  considering the matter, with reference to the various  decisions  of the apex Court came to the conclusion that the  tenant did not comply with the provisions of the Act as no  notice was given regarding the creation of sub-tenancy  within six months of the commencement of the Act which came  into force on 30.12.1961.  Learned single Judge took the  view that there was nothing in Section 15 of the Act which  restricted the period for the word "before" and therefore,  the word "before" should be construed  on any time before  30.12.1961.  Then, it was held  that sub-tenancy was   created before 30.12.1961 but was not complied with Section  15 of the Act, therefore, the  plaintiff/respondent(herein)   was entitled to a decree for eviction under Section 12(1)(b)  of the Act.  Accordingly, the appeal was allowed & decree of  eviction was passed. Hence, the  appeal by the defendant. 5.     We have heard learned counsel  for the parties and   perused the record.     6.    In fact learned single Judge did not discuss the   Section 15 of the Act in detail specially with reference to  the earlier sub-tenancy that whether the earlier sub-tenancy  was valid or not.  Learned counsel for the appellant has  stressed that as per  Section 15 of the Act the sub-tenants  are protected.  He invited our attention  to Section 15 of  the Act & submitted that sub-tenancy was lawful either in  whole or in part by the tenant and even if notice was not  given to the landlord for creation of sub-tenancy still he  is protected under Section 16 of the Act. 7.      He submitted that Section 16 of the Act contemplates  that once the notice of sub-tenancy has been given to the  landlord,  the sub-tenant shall with effect from the date of  the order be deemed to become a tenant holding directly  under the landlord in respect of the accommodation in his  occupation on the same terms and conditions on which the  tenant would have held from the landlord, if the tenancy had  continued. 8.   As against this learned counsel for the respondent  submitted that before the Act, 1961 came into force there  was an earlier Act of M.P. Accommodation Control Act 1955   (Act No. 23 of  1955) and prior to 1955 Act the Central  Province and Berar Regulation of Letting of Accommodation  Act, 1946 read with  C.P. and Berar Letting of Houses and  Rent Control Order, 1949. Learned counsel submitted that  sub-tenancy was illegal, with reference to  above enactment,   therefore, the tenant cannot seek any protection under  Section  16 of the Act  Be that, as it may, we do not want  to express any opinion but the impact of Section 15 was not  properly considered by the learned single Judge and he  came  to the abrupt conclusion.   Therefore, it would not be  proper to discuss more on this question here and we think it  proper that this case be remanded back to the High Court for

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reconsideration of Sections 14,15 and 16 of the Act in  respect of this case.    9.       Consequently, we  set aside the impugned order and  remit this case back to the High Court to consider the   question again with reference to the earlier Acts of the   M.P. Accommodation Control Act  relating to question of sub- tenancy and what  is the effect of Sections 15 and 16 of the  present Act.    Hence the case is remitted back to the High  Court for considering the matter afresh. Since the matter is  old one, therefore, we request the High Court to  dispose of  the matter as expeditiously as possible.  Appeal is allowed.    No order as to costs.