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PETITIONER: NAND KISHORE

       Vs.

RESPONDENT: RAM KISHAN & ANR.

DATE OF JUDGMENT: 25/08/1966

BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) SHELAT, J.M.

CITATION:  1967 AIR 1196            1967 SCR  (1) 167

ACT: Delhi  Rent Control Act (59 of 1958), ss. 17(3),  18(2)  and 50,  and Delhi and Ajmer Rent Control Act (38 of  1952),  s. 20-Tenancy  determined  before commencement of  the  Act  of 1958-Suit  by sub-tenant claiming to be statutory  tenant-If maintainable.

HEADNOTE: The  landlord of the premises in dispute, obtained a  decree for ejectment against his tenant before the commencement  of the Delhi Rent Control Act, 1958.  The sub-tenant was not  a party to that suit and the sub-tenancy was not determined by that  decree.  In 1962, the subtenant filed a  suit  against the  landlord claiming to have become a statutory tenant  of the  premises.  The landlord contended that under s.  50  of the Act, no civil court shall entertain any suit in  respect of  a matter which the Controller is empowered by  or  under the Act to decide, and that as s. 17(3) of the Act empowered the Controller to decide a dispute in regard to the question whether a person was a sub-tenant or not, the ,suit was  not maintainable. HELD : Section 50 was not a bar to the suit. The  provision  of the Act applicable to a  case  where  the interest  of  a  tenant  had  been  determined  before   the commencement of the Act, but the interest of the  sub-tenant was allowed to subsist is s. 18(2).  Under this  sub-section the  sub-tenant  shall,  with effect from the  date  of  the commencement  of  the Act, be deemed to have  become,  by  a statutory fiction, a tenant under the landlord.  There is no provision  in  the Act under which a dispute in  respect  of such a sub-tenancy could be decided by the Controller.   Any dispute  raised by such a sub-tenant does not fall under  s. 17(3), for, s. 17(3) applies only to a case where a  dispute arises during the subsistence of the main tenancy after  the Act came into force, and where the dispute was raised within two months of the issue of the notice of sub-letting, by the tenant or sub-tenant. [171 A-C] Mohd.  Mamood v. Tikam Das, [1966] 1 S.C.R. 128, explained. Moreover,  under s. 20 of the Delhi and Ajmer  Rent  Control Act,  1952,  on the eviction of the tenant,  the  sub-tenant would  be  deemed to have become a tenant of  the  landlord. There  is no provision in the Delhi Rent Control Act,  1958,

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which   took  away  that  vested  right  or  empowered   the Controller  to  decide  a dispute raised in  regard  to  it. Section  50,  therefore could not have any  bearing  on  the maintainability of the suit. [171 E-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 467 of 1966. Appeal  by special leave from the judgment and decree  dated March  4, 1965 of the Punjab High Court (Circuit  Bench)  at Delhi in Civil Regular Second Appeal No. 125-D of 1964. 168 A.K.  Sen,  E.  C.  Agarwal and  P.  C.  Agarwala,  for  the appellant. Gauri Dayal for the respondents. The Judgment of the Court was delivered by Subba  Rao,  C. J. This appeal by special leave  raises  the question  of the construction of some of the  provisions  of the  Delhi  Rent  Control  Act,  1958  (Act  59  of   1958), hereinafter called the Act. Appellant-1st  defendant is the owner of premises No.  6022, Gali  Mandir Wali, Arya Samaj, Delhi.  Ram Saran  Das,  res- pondent  No.  2 herein, was the tenant of the  appellant  in respect of the said premises and Ram Kishan Das,  respondent No.  1  herein, was a sub-tenant.  On January 30,  1959  the appellant  obtained a decree for ejectment against  the  2nd respondent  from the court of the Subordinate Judge,  Delhi. To  that  suit the 1st respondent, the sub-tenant,  was  not made  a party.  When that decree was sought to  be  executed against  the 2nd respondent, the 1st  respondent  obstructed delivery  of possession of the premises on the  ground  that he,  as  a  sub-tenant,  had  become  a  tenant  under   the provisions  of  the Act.  The executing court  rejected  his claim.   Thereafter,  on May 22, 1962,  the  1st  respondent filed  a suit in the Court of the Senior Subordinate  Judge, Delhi, against the appellant and respondent 2 praying for  a decree for a permanent injunction against the appellant  and the  2nd  respondent restraining the appellant  from  taking possession  of the said premises.  The appellant inter  alia contended  that  S.  50 of the Act was a bar  to  the  main- tainability  of  the  suit  in a civil  court.   It  is  not necessary  to state the other defences, as nothing turns  on them  in  this appeal.  The said plea was  rejected  in  the first  instance by the learned Subordinate Judge, on  appeal by the learned Senior Subordinate Judge and on Second Appeal by the High Court.  Hence the appeal. The only question that arises in this appeal is, whether  s. 50  of the Act is a bar to the maintainability of  the  suit filed by the 1st respondent against the appellant. The  learned counsel for the appellant contended that s.  50 of the Act was a bar to the maintainability of the suit,  as s.  17 of the Act empowered the Rent Controller to decide  a dispute  in  regard to the question whether a person  was  a sub-tenant or not. The learned counsel for the 1st respondent contended that s. 17(3)  of  the Act applied only to a case  where  a  dispute arose during the subsistence of tenancy, that in the instant case the tenancy had come to an end before the Act came into force, that the 1st respondent became a tenant under  Sub-s. (2) of s. 18, that a dispute 169 in regard to the question whether he had become a  statutory tenant  thereunder  was not a dispute triable  by  the  Rent Controller  and that, therefore s. 50 of the Act was  not  a

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bar to the maintainability of the suit. Alternatively,  the learned counsel for the  1st  respondent contended that the 1st respondent had become a tenant  under s.  20 of the Delhi and Ajmer Rent Control Act,  1952,  that there  was  no  provision in the  Act  conferring  exclusive jurisdiction  on the Rent Controller in respect of the  said right vested in him before the Act and that, therefore,  the suit  for a declaration of the said pre-existing  right  was maintainable in the civil court. The  solution to the rival contentions depends on  the  true construction  of the relevant provisions of the Act.   Under s. 50 of the Act, no civil court shall entertain any suit in respect of a matter which the Controller is empowered by  or under the Act to decide.  If the Controller, in exercise  of the  power  conferred on him under the Act, can  decide  the dispute  in respect of the claim of the 1st respondent to  a statutory  tenancy, there cannot by any doubt that his  suit is  not maintainable in a civil court.  S. 17(3) of the  Act on  which reliance is placed for invoking the aid of  s.  50 reads:               "Where  in any case mentioned  in  sub-section               (2),  the landlord contests that the  premises               were  not lawfully sublet, and an  application               is  made  to  the Collector  in  this  behalf,               either  by the landlord or by the  sub-tenant,               within  two months of the date of the               receipt  of  the notice of subletting  by  the               landlord  or  the issue of the notice  by  the               tenant or the sub-tenant, as the case may  be,               the Controller shall decide the dispute." Under  this  sub-section,  the Controller  is  empowered  to decide a dispute between the landlord and his sub-tenant  in respect of any case mentioned in sub-s. (2) of s. 17.   Sub- section (2) of s. 17 of the Act says :               "Where,  before the commencement of this  Act,               any premises have been lawfully sub-let either               in whole or in part by the tenant, the  tenant               or  the sub-tenant to whom the  premises  have               been  sub-let may, in the  prescribed  manner,               give notice to the landlord of the creation of               the  subtenancy  within  six  months  of   the               commencement  of  this  Act,  and  notify  the               termination  of  such sub-tenancy  within  one               month of such termination." To  invoke  this  sub-section  three  conditions  shall   be complied  with,  namely, (i) the premises  shall  have  been lawfully  sub-let by the tenant, (ii) the sub-letting  shall have been before the commence- Sup.Cl/66-12 170 ment  of the Act, and (iii) such tenant or sub-tenant  shall have  given a notice to the landlord of the creation of  the sub-tenancy within six months of the commencement of the Act and notified the termination of such sub-tenancy within  one month of such termination.  The dispute referred to in  sub. s.  (3)  of s. 17 is in regard to such sub-tenancy.   It  is manifest  from  the provisions of sub-s. (2) that  the  said provision applies only during the period ,of subsistence  of the  tenancy  created before the commencement  of  the  Act. But, if the tenancy itself ceased to exist before the  corn- mencement   of  the  Act,  the  said  sub-section   has   no application.   If the tripartite relationship  of  landlord, tenant  and  sub-tenant  had  ceased  to  exist  before  the commencement  of  the  Act, no  question  of  giving  notice prescribed  thereunder would arise.  If subs. (2)  does  Dot

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apply  to such a case, a dispute raised between them  cannot be raised before the Controller under sub-s. (3) of s. 17 of of  the Act.  If that be the construction of sub-s. (2)  and (3) of s. 17 of the Act, s. 18(1) thereof would not  equally help  the  appellant.  Under sub-s. (1) of s.  18  where  an order  for  eviction ill respect of’ any  premises  is  made under  s. 14 against a tenant but not against  a  sub-tenant referred to in s. 17 and a notice of the subtenancy 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 premises in his occupation on the same terms and  conditions on  which the tenant would have held from the  landlord,  if the  tenancy had continued.  This section also applies to  a case  of subsisting tenancy after the Act came  into  force. The  reference to s. 14 presupposes that an  eviction  order has  been  made against the tenant after the Act  came  into force.   The sub-tenant mentioned therein is the  sub-tenant referred  to in s. 17 and in respect of whose sub-tenancy  a notice  has  been given to the landlord, that is to  say,  a sub-tenant  of  a  tenant during  the  subsistence  of’  his tenancy.  In such a case the sub-tenant becomes a  statutory tenant.  This section cannot have any application to a  case where the tenancy ceased to exist before the commencement of the Act.  Sub-section (2) of s. 18 reads:               "Where,  before the commencement of this  Act,               the  interest  of a tenant in respect  of  any               premises    has   been   determined    without               determining the interest of any sub-tenant  to               whom  the premises either in whole or in  part               had  been  lawfully  sub-let,  the  sub-tenant               shall,  with  effect  from  the  date  of  the               commencement  or this Act, be deemed  to  have               become  a  tenant holding directly  under  the               landlord  on the same terms and conditions  on               which  the  tenant would have  held  from  the               landlord, if the tenancy had continued." 171 This  sub-section applies to a case where the interest of  a tenant  had been determined before the commencement  of  the Act,  but  the  interest of the sub-tenant  was  allowed  to subsist.   In such a case, the sub-tenant shall with  effect from  the date of the commencement of the Act be  deemed  to have  become,  by a statutory fiction, a  tenant  under  the landlord.    This   situation   could   arise   before   the commencement  of  the  Act  either  because  of  a  statute, contract  or  a decree.  Any dispute raised by such  a  sub- tenant  does not fall under sub-s. (3) of S. 17 of the  Act, for, as we have said, the said sub-section applies only to a case  where a dispute arises during the subsistence  of  the main tenancy after the Act came into force.  If so, as there is  no other provision in the Act under which a  dispute  in respect  of  such  a sub-tenancy could  be  decided  by  the Controller,  S.  50 cannot have a bearing on  the  maintain- ability of a suit filed in respect of such a sub-tenancy. If  that be the construction of the relevant  provisions  of the Act, the 1st respondent is not hit by the provisions  of S.  50 of the Act.  The landlord by obtaining a  decree  for eviction  against  the  2nd respondent put  an  end  to  the tenancy before the commencement of the Act.  The Sub-tenancy of  the 1st respondent was not determined by the decree,  is lie was neither a party to the suit nor his rights were  put in  issue therein.  He can, therefore, claim to be a  tenant under S. 18(2) of the Act.  As S. 50 does not apply to  him, he  can file a Suit in a. civil Court for a  declaration  of

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his right thereunder. The  same result will flow if we look at the matter  from  a different aspect.  Under S. 20 of the Delhi and Ajmer  Reiit Control  Act, 1962, on the eviction of the tenant, the  sub- tenant  would  be  deemed to have become  a  tenant  of  the landlord.   The  appellant obtained a  decree  for  eviction against  the  2nd respondent on January 30, 1959.   The  Act came  into force subsequently.  He had therefore acquired  a vested right under the Act of 1952.  No provision of the Act has been pointed Out to us which took way that right.  There was also no provision under the Act empowering the Controler to  decide  a  dispute raised in regard to  the  said  right vested in the 1st respondent.  If so, it follows that S.  50 of  the  Act cannot be a bar to the suit filed  by  the  1st respondent for a declaration of his said right. The  view  expressed by us finds support in  the  unreported judgment  of  Mehar  Singh, J. of  the  Punjab  High  Court, Circuit  BeBench  at  Delhi in Smt.   Viran  Wati  Devi  and another  v. Jaswant Rai and mother(1).  There,  the  learned Judge,  after considering the provisions of sub-ss. (2)  and (3) of S. 17 of the Act, observed               "It ippeai-s to me obvious on a plain  reading               of  those two sub-sections of section 17  that               the procedure provided               (1)Civil  Revision No. 558-D of 1961  (Decided               oil 15-2-t962).               172               by those sub-sections is available to a tenant               and his sub-tenant, during the subsistence  of               the tenancy and the sub-tenancy, but where the               tenancy has ceased to exist or the sub-tenancy               has  ceased  to exist those  sub-sections  are               apparently not attracted and resort cannot  be               had to their provisions." The learned counsel for the appellant relied upon a decision of  this Court in Mohd.  Mahmood v. Tikam Das(1) in  support of his contention.  That case arose under the provisions  of the  Madhya  Pradesh Accommodation Control Act,  1961.   The provisions of that Act, though not in pari materia with  the provisions of the Act now in question, are similar to  those of the Act in many respects.  There, the landlord terminated the  tenancy  before the said Act came into force,  filed  a suit  for  ejectment and obtained a decree for  eviction  on June 23, 1962, after the said Act came into force.  The said Act  came into force on December 40, 1961.  On June  25  and 26,  1962,  the appellants served notices  on  the  landlord under  s. 15(2) of the said Act claiming that as the  tenant had  sub-let  the premises to them before the Act  had  come into force with the consent of the landlord, they had become his  direct  tenants under s. 16(2) of the said Act  and  on June 28, 1962, the appellants filed a suit against both  the landlord  and  the  tenant in a civil court  praying  for  a declaration  that  they had, in  the  circumstances,  become direct tenants of the premises under the landlord.  On  June 30,  1962, the landlord sent a reply to the notices sent  by the  appellants in which he denied that the  sub-letting  by the tenant had been with his consent or was lawful.  Here it may be mentioned that s. 15(2) of that Act corresponds to s. 17(2)  of  the  Act  and sub-s. (3) of s.  15  of  that  Act corresponds  to  sub-s. (3) of s. 17 of  the  Act.   Section 45(1)  of  that Act, which bars a suit in a civil  court  is analogous  to s. 50(1) of the Act.  If the dispute  was  one that  could  be decided by the  Rent  Controlling  Authority under  s.  15(3)  of that Act, the suit in  respect  of  the dispute  would not be maintainable by reason of s. 45(1)  of

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the said Act.  Under sub-s. (3) of s. 15 of that Act, a sub- tenant  could  make an application to the  Rent  Controlling Authority  for deciding a dispute within two months  of  the date  of issue of notice by him.  Instead of filing such  an application,  the  tenants filed a suit in the  civil  court within the said time prescribed.  On those facts, this Court held  by  reason of s. 45(1) of that Act, the suit  was  not maintainable.   But in so holding this Court left  open  the question whether such a suit could be filed in a civil court after the period of limitation prescribed under s. 15(3)  of that Act had expired.- This Court observed:               "Another  question  mooted was  that  the  two               months mentioned in sub-s. (3) only provided a               special period of (1)  [1966] 1 S.C.R. 128,131. 173               limitation for the application mentioned in it               and  the provision of the period did not  mean               that a Rent Controlling Authority had power to               decide  the matter only if an application  had               been  made within that period, so that  if  no               such  application  had been  made,  after  the               expiry of the period a civil court would  have               jurisdiction to decide a dispute as to whether               a  sub-letting was lawful.  The point is  that               the real effect of s. 15(3) was to deprive the               civil court of the jurisdiction to decide that               dispute  for all time.  We do not feel  called               upon  to decide these questions.  They do  not               arise in the present case and it was not  said               that  these questions affect the  question  of               the  competence of the civil court to try  the               present  suit.  The suit was filed within  the               period  of two months during which  admittedly               the    Rent   Controlling   Authorities    had               jurisdiction to decide the dispute on which it               was  based.  Whatever may be the  jurisdiction               of  a  civil  court on  other  facts,  in  the               present case it clearly had no jurisdiction to               entertain the appellants’ suit." The decision of this Court, therefore, has a limited  scope. It has only held that during the prescribed period under  s. 15(3)  of the said Act, no suit would lie in a civil  court. In  the present case, the suit was filed in the civil  court beyond the period prescribed. In the result, the appeal fails and is dismissed with costs. V.P.S.                           Appeal dismissed. 174