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PETITIONER: SOUTH ASIA INDUSTRIES PRIVATE LTD.

       Vs.

RESPONDENT: S. SARUP SINGH AND OTHERS

DATE OF JUDGMENT: 19/04/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR  346            1965 SCR  (3) 829  CITATOR INFO :  R          1988 SC 145  (3,14)

ACT:     Delhi  Rent  Control  Act (Act 59 of  1958),  s.  14(1), Proviso (b)-Scope of

HEADNOTE:     The respondents were the owners of  certain premises  in New Delhi. The lessee--a company--of these premises assigned the  lease to the appellant. Alleging that the transfer  was done  without  their  consent,  the  respondents  filed   an application  against the lessee and the appellant  under  s. 14(1)  proviso (b) of the Delhi Rent Control Act, 1958,  for recovery of possession. Pending the proceedings, the  lessee went  into liquidation and its name was struck off from  the record. The Controller thereafter, passed an order in favour of  the  respondents. Having moved unsuccessfully  the  Rent Control Tribunal and the High Court, the appellant, appealed to  the  Supreme Court contending that:  (i) the order  made against  the  appellant,  after the lessee ceased  to  be  a party,  was incompetent, as the only person against whom  an order  for  recovery of possession  can be  made  under  the clause, is the tenant who assigned the tenancy, and (ii) the clause in the lease by which the term "lessee" included  the lessee’s assignee operated as a consent by the  respondents, to assign.     HELD: (i) (Per Sarkar, J.). The Act contemplates  orders for recovery of possession also against persons other than a tenant  who has assigned or sub-let without  the  landlord’s consent,  so that, where the tenant becomes extinct  without leaving any successor, an order can be made against a person who  took an assignment of the lease from the tenant  before the lease became extinct. [833C, D-E]     The proviso expressly states when an order of  ejectment can be made and the clauses of the proviso are not  intended to  indicate the persons against whom an order for  recovery of  possession could be made, but only the circumstances  in which  an  order  for recovery of possession  may  be  made. [832E-G]     The  expression "the tenant" in cl. (b) is used only  to emphasise  that the tenant assigning must be the  tenant  of

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the  landord  seeking eviction. So read, the effect  of  the clause  is  that a land-lord can recover possession  if  his tenant assigns or sub-lets without his consent. [832H, 833A- B]     Since  the  object  of  the proviso  is  to  enable  the landlord  to  recover  possession in  the  specified  cases, orders  against all "persons in occupation" must  have  been contemplated  so  that the landlord  might  without  further trouble recover possession. Section 18 plainly implies  that an order for recovery of possession against a sub-tenant  is contemplated by the proviso. Further. the order for recovery of possession would, under s. 25, be binding on the assignee or  sub-tenant, and therefore, they would be  interested  in showing  that  there was  the requisite consent,  and  hence would be entitled to be made parties to the proceedings.  If they  are thus entitled to be heard to oppose the  order  of eviction,  such an order could be made  against them   also. [833F-G, H; 834C, E, H-835A] 830     Per  Bachawat  J.(i): Both the tenant and  the  assignee were properly parties to the proceedings for possession  and if the tenant company had been dissolved, there is no reason why   the   proceedings  could  not  continue  against   the assignee alone. [839G]     It is true that other clauses of the proviso contemplate eviction of the tenant on the ground of some act on the part of the tenant against whom the proceeding for possession  is brought,  but under cl. (b), the assignment is a  ground  of eviction  of  both  the  assigning tenant and  the  assignee and  the  Controller has jurisdiction to make an  order  for possession not only against the  assigning  tenant but  also against the assignee. [839H-840B] Per Mudholkar J. (Dissenting)     The  right which the respondents possessed to evict  the defunct  company from the premises, because the company  had assigned   the   tenancy  to  the  appellant   without   the respondents’  consent could not be availed of by  them,  and the appellant could therefore continue in possession. [838B- C]     The  ban  against eviction of a tenant in  s.  14(1)  is lifted  by the proviso only with respect to the  tenant  and not  to any other person, because, a proviso is  subservient to the main provision. Therefore, the tenant must be a party to  the  proceeding right up to the date of  making  of  the order  of eviction. Unless an order is obtained against  the tenant there would be no occasion for pressing in aid s. 25. Unlike  the case of death of or assignment by, a tenant,  an anomalous position results where the tenant happening to  be a  company is dissolved during the pendency  of  proceedings and cannot be represented by any one, because of a lacuna in the  law:  But such lacuna cannot be removed by  the  Courts without  assuming  a  power to  legislate. [836H, 837F-H]     (ii) Per Sarkar J.: The clause in the lease according to which  "the lessee" includes his assignee, does not lead  to the  conclusion that the lessor consented to the assignment. Besides,  the  consent  contemplated by  the  proviso  is  a direct    consent   to  a   contemplated  assignment  to   a particular assignee. [835F-G]     Regional Properties Ltd. v. Frankenchwerth, [1951] 1 All E.R. 178, applied.     Per Bachawat J: The consent contemplated by cl. (b)  may be either general or special, but the clause in  the   lease would   not  amount  to  a consent by  the  landlord  to  an assignment  either  expressly or by  necessary  implication. [840D-E]

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  149  of 1965.     Appeal  by  special leave from the  judgment  and  order dated May 10, 1963 of the Punjab High Court (Circuit  Bench) in S.A.O. No. 40-D of 1963.     C.B. Agarwala, B.R.L. lyengar, P.N. Chaddha, S.K.  Mehta and K.L. Mehta, for the appellant.     S.T.  Desai  and  Gopal Singh  for  Harbans  Singh,  for respon-dents Nos. 1 & 2.     Gurcharan  Singh and Gopal Singh for Harbans Singh,  for respondents Nos. 3 to 5. 831     Sarkar   and  Bachawat,  JJ.  delivered   separate   but concurring  judgments. Mudholkar, J. delivered a  dissenting Opinion.     Sarkar,  J.  The respondents are the owners  of  certain premises  in Connaught Circus in New Delhi, which  were  let out  to Allen Berry & Co. (Calcutta) Ltd.  Sometime in  1959 Allen Berry & Co. transferred the lease to the appellant and put  the latter in possession.  Alleging that  the  transfer had been made without their consent, the respondents made an application under el. (b) of the proviso to sub-s. (1) of s. 14  of  the Delhi Rent Control Act, 1958 to  the  Controller appointed  under  it  against  Allen Berry  &  Co.  and  the appellant  for  an order for recovery of possession  of  the premises  from them. While the   application  was   pending, Allen  Berry  &  Co. went into liquidation and  was  in  due course  dissolved  and its name was, thereupon,  struck  off from  the records of the proceedings.  The Controller  later heard  the  application and made an order in favour  of  the respondents for recovery of possession of the premises  from the appellant alone. An appeal by the appellant to the  Rent Control  Tribunal  under  the Act  against  this  order  was dismissed.   The  appellant  then moved the  High  Court  of Punjab  for  setting aside the order of  the  Tribunal,  but there  also  it was unsuccessful. It has now  come  to  this Court in further appeal.     It  was  contended  that  the  order  for   recovery  of possession  made against the appellant after Allen  Berry  & Co.  had  ceased  to  be a party  to  the  proceedings,  was incompetent.  This contention was based on an interpretation of  the terms of sub-s. (1) of s. 14, the material  part  of which is set out below:                  S. 14  (1) Notwithstanding anything to  the               contrary   contained  in  any  other  law   or               contract, no order or decree for the  recovery               of possession of any premises shall be made by               any  court  or  Controller in  favour  of  the               landlord against a tenant:                  Provided  that  the Controller may,  on  an               application  made  to him  in  the  prescribed               manner,  make  an order for  the  recovery  of               possession  of the premises on one or more  of               the following grounds only, namely:--               (a) .....  ....                     (b) that the tenant has, on or after the               9th  day of June, 1952, sub-let,  assigned  or               otherwise  parted with the possession  of  the               whole  or  any part of  the  premises  without               obtaining  the  consent  in  writing  of   the               landlord;

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   The  contention  of the appellant was put in  this  way: The first part of sub-s. (1) of s. 14 puts a complete ban on recovery of possession from all tenants.  The proviso to  it is  only  an excepting clause and it lifts that ban  in  the circumstances mentioned in it. It follows that the  proviso. though it does not expressly mention 832 tenants,  permits orders for recovery of possession  against them alone.  The tenant in cl. (b) of the proviso means only the  tenant  sought to be evicted under  the  proviso,  such tenant having also to be by the express terms of the clause, a  tenant who has assigned his tenancy.  This  follows  from the use of the article "the" before the word "tenant" there. Therefore the only person against whom an order for recovery of  possession can be made under cl. (b) of the  proviso  to sub-s.  (1)  of  s. 14 is the tenant who  has  assigned  his tenancy.   No  such order can, hence, be  made  against  the person  to  whom  the tenancy has  been  assigned.   As  the appellant was such a person, no order for eviction could  be made  against  it.  I wish to observe at once that  if  this contention is correct--which 1 do not think it is  then  the order could never be made against the appellant and the fact that  Allen  Berry  &  Co.  ceased to  be  a  party  to  the proceedings made no difference in this regard.     The  argument  of the appellant is really based  on  the article  "the" prefixed to the word "tenant" in cl.  (b)  of the  proviso. It is paid that the article clearly  indicates that the only person against whom an order for ejectment can be made under cl. (b) is the tenant who assigns or  sub-lets or  parts  with  possession  of  the  tenancy  without   the landlord’s  consent.  I am unable to accept  this  argument. The proviso expressly states that an order for ejectment can be  made "on one or more of the following grounds" and  then sets  the grounds out in the different clauses that  follow, one  of which is cl. (b) with which we are  concerned.   The clauses,  therefore, set out the circumstances in which  the operative part of the proviso is set in motion, that is, the circumstances  in which an order for recovery of  possession may  be made.  If this is so, as I think it is, the  clauses could not have been intended to indicate the person  against whom  an  order for recovery of possession  could  be  made. This  purpose was entirely different.  1 am  not  suggesting that  an  order  for  recovery  of  possession  against  the assigning tenant cannot be made.  All that I say is that the clauses do not intend to indicate the persons  against  whom an  order for recovery of possession can be made and  so  it cannot  be argued that the order cannot be made against  any other person.     Now the article "the" appears to me to have been used to show  that  the tenant assigning must be the tenant  of  the landlord  seeking  eviction.   So read, the  effect  of  the proviso in cl. (b) is that a landlord can recover possession if   his  tenant  has  assigned.  sub-let   or   transferred possession  without his consent.  This would be the  natural reading  of the provision and would carry out the  intention of  the  Act.   If this is not the correct  reading  of  the provision,  the situation would be  anomalous.  As the  word "tenant" includes by virtue of its definition in s. 2(1),  a sub-tenant.  it  would at least be arguable   that  el.  (b) authorised  a superior landlord to recover  possession  when the sub-tenant assigned without his consent.  That could not possibly have been intended for 833 the intermediate tenant would then have lost his tenancy for no  fault of his.  Therefore, 1 think the article "the"  was

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used only to emphasize that the tenant assigning must be the tenant of the landlord seeking eviction.  The article  "the" does  not, in my opinion, lead inevitably to the  conclusion that  the only person against whom an order for recovery  of possession can be made on the ground mentioned in el. (b) is the   tenant  assigning  or  sub-letting  or  parting   with possession of his tenancy without the landlord’s consent.     I think there are good reasons why it must be held  that the Act contemplated orders for recovery of possession  also against persons other than a tenant who has assigned or sub- let  without the landlord’s consent.  The  offending  tenant must  of course go for, as I have said, he is the  immediate tenant of the landlord desiring to recover possession and if he  remains  he  would be entitled  to  possession  and  the landlord  cannot recover possession. But this does not  mean that  the  order  may  not  also  direct  the  removal  from possession  of others along with the immediate  tenant  when there  is  one.  The reason for this view I  will  presently state.  If  I am right in what I have said, it  will  follow that  in  a case like the present where the  tenant  becomes extinct  without leaving any successor on whom  the  tenancy devolves, an order can be made against a person who took  an assignment  of  the lease from the tenant before  it  became extinct.     It  is  trite saying that the object of  interpreting  a statute  is  to ascertain the intention of  the  legislature enacting it.  When I enquire about the intention behind this statute,  1  find that far from lending any support  to  the appellant’s contention it tends quite the other way.  First, I observe that the object of the first part of sub-s. (1) of s.  14  is  to ban all recovery of  possession  of  tenanted premises  by a landlord and that of the proviso is  to  lift that  ban in specified cases.  The object of the proviso  is then to enable the landlord to recover possession in any  of the  specified  cases.  Assume that the present  is  a  case where  the  landlord became entitled to  recover  possession under  cl.  (b)  of the proviso; clearly  then  the  statute intended  the landlord to recover possession.  It  would  be our  duty  to  give  effect to  that  intention  unless  the language  used made it plainly impossible.  I  have  earlier said  that the language used does not compel the  view  that the  only  person  against whom an  order  for  recovery  of possession  can  be  made is the tenant  assigning  or  sub- letting  without  the landlord’s consent.   That  being  so, orders  against all "persons in occupation" must  have  been contemplated  so  that the landlord  might  without  further trouble recover possession.  Further  find it impossible  to hold that the language used indicates an intention that when a  right  has accrued to a landlord to  recover  possession, that  right  would be taken away from him  when  the  tenant assigning has become extinct without leaving a successor, an event  which is only accidental and certainly rare. A  court would  be fully justified in holding that in such a case  it was 834 intended  that  an order for recovery of possession  can  be made  against the assignee alone for that would  enable  the object  of the statute which was to enable the  landlord  to recover  possession,  to  be  achieved.   An  interpretation which   defeats the object of a statute is, of  course,  not permissible.     Then, looking at s. 18 of the Act I find that it clearly contemplates an order for recovery of possession under s. 14 against a sub-tenant.  It says, "Where an order for eviction in  respect  of any premises is made under s. 14  against  a

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tenant  but not against a sub-tenant referred to in  section 17",  then  in the circumstances mentioned,  the  sub-tenant shall  be  deemed  to  become  a  direct  tenant  under  the landlord.   This section plainly implies that an  order  for recovery of possession against a sub-tenant is  contemplated by  cl.  (b)  of the proviso to sub-s. (1)  of  s.  14.  The appellant’s  argument  to the contrary cannot  be  sustained against  the  clear  implication  of  the  Act.  If  s.   14 contemplates an eviction order against a sub-tenant, it must equally  contemplate  such  an order  against  assignees  of tenants,  for the section makes no distinction between  sub- tenants and assignees for the purpose of making such orders.     I  am not unmindful of the fact that where an order  for recovery  of possession of any premises is made under s.  14 against  a  tenant  assigning  or  sub-letting  without  the landlord’s consent, that order would under s. 25 of the  Act be  binding  on all persons in occupation  of  the  premises except  those  who leave independent title  to  them.   This section  does not however say that an order for recovery  of possession  against an assignee of a lessee cannot be  made. It  would not, therefore, support an argument that an  order for recovery of possession could be made under s. 14 against an assignee or a sub-tenant. On the other hand, it seems  to me  that to an application under cl. (b) of the  proviso  to sub-s.  (1) of s. 14 an assignee or sub-tenant, as the  case may  be, should be a proper party. Under this  provision  an ejectment order can be made only when the assignment or sub- letting  was without the consent of the landlord. If it  was with  such consent, the assignee or the sub-tenant would  be protected  by  the  Act.  An assignee or  a  sub-tenant  is, therefore,   interested  in  showing  that  there  was   the requisite consent. They should hence be entitled to be  made parties  to  the proceedings. Otherwise, if under s.  25  an eviction  order   obtained   against the  direct  tenant  is binding  on  them,  they would be  liable  to  be  condemned without a hearing. It is no argument against this view  that the  direct  tenant would protect them, for they  cannot  be made  to depend on him for the protection of  their  rights. The  direct  tenant may be negligent or incompetent  in  his defence;  he  may even collude with the landlord or  he  may just  not bother. If the assignee or the sub-tenant is  thus entitled  to  be heard to  oppose the  order  for  eviction, that  would  be  another reason for  saying  that  an  order eviction  could  be made against them also;  if  they  could oppose the 835 making  of the order, it would be unnatural to say that  the order could not be made against them. In what 1 have said in this  paragraph, I do not wish to be understood  as  holding that  in  view  of’ s. 25 an order for  eviction  against  a tenant  is  in fact binding on his assignee  or  sub-tenant. Such  a  decision is not necessary for this  case.  I  wish, however,  to  point  out that if s. 25  does  not  make  the ejectment  order so binding, the appellant cannot resort  to it for any assistance.     I  have now dealt with the first argument in support  of the  appeal and I find it unacceptable.  The other  argument was   that  the  order  for  recovery  of   possession   was unwarranted  as  in  fact there had been a  consent  of  the respondents  to the assignment in favour of  the  appellant. It  is  said that the consent was given by a clause  in  the lease  under  which Allen Berry & Co. held  which  reads  as follows:--                   "That  whenever  such  an   interpretation               would  be  necessary  in  order  to  give  the

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             fullest  scope and effect legally’ possible to               any covenant or contract herein contained, the               expression  "The  Lessor"  hereinbefore   used               shall    include   his    heirs,    executors,               administrators and assigns. and the expression               "THE LESSEE" hereinbefore used’ shall  include               their representatives and assigns." I am unable to accept this contention also.     I  notice  that the lease gave no express right  to  the lessee to  assign with or without the consent of the lessor. The  lessee  no doubt had that right under the  Transfer  of Property Act.  It may be that under the clause the  lessee’s assignee  would  be included in the expression  "lessee"  as used in the lease; that is the entire effect of the  clause. But this would be so whether the lessor had consented to the assignment or not.  Therefore, this clause does not lead  to the  conclusion  that  the  lessor  had  consented  to   the assignment.  It is of no assistance in the  present case.  I am also’ inclined to the view that the consent  contemplated by  s.  14(1):  proviso  (b)  is  a  direct  consent  to   a contemplated  assignment  to  a  particular  assignee:   see Regional  Properties, Ltd. v.  Frankenschwerth(1).   Clearly the clause in the case relied upon could not be a consent of this kind.  This point, therefore, also fails. For these reasons I would dismiss the appeal with costs.      Mudholkar, J. In this appeal by certificate granted  by the  Pun-jab  High  Court an  unusual  question  arises  for consideration. That question is whether an application  made under  s. 14(1)(b) of the Delhi Rent Control Act, 1958 by  a landlord of a building in Delhi against a tenant who happens to be a company incorporated under the Indian Companies Act, cannot  be  proceeded with and granted’ on the  ground  that before the making of any order thereon by the’ (1) (1951) 1 All. E.R. 178. 836 Rent  Controller the Company is dissolved and is struck  off the  record  of  the case. According to  the  appellant  who claims to be an assignee from the original tenant, that  is, the  Company, such an application cannot be  proceeded  with and  granted while according to the respondent landlord  the fact that the company is dissolved makes no difference.     The  facts which are not in dispute and which have  been stated   in  the  judgment  of  Bachawat  J.  need  not   be recapitulated because what I have already said is sufficient to enable me to deal with the point.               The relevant part of s. 14(1) reads thus:                   "Notwithstanding anything to the  contrary               contained  in  any other law  or  contract  no               order or decree for the recovery of possession               of any premises shall be made by any Court  or               Controller in favour of the landlord against a               tenant:                   Provided  that the Controller may,  on  an               application  made  to him  in  the  prescribed               manner,  make  an order for  the  recovery  of               possession  of the premises on one or more  of               the following grounds only, namely:-                   (b) that the tenant has, on or after   the               9th  day  of June, 1952, sublet,  assigned  or               otherwise  parted with the possession  of  the               whole  or  any part of  the  premises  without               obtaining  the  consent  in  writing  of   the               landlord;     It  is  not  necessary to refer to cl.  (a)  or  to  the several clauses following el. (b) in this sub-section or  to

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any  of  the sub-sections of s. 14.  Looking at  sub-s.  (1) what  we  find is that it enacts a bar to the making  of  an order  or  decree  for the recovery  of  possession  of  any premises  by any court or the controller  against a  tenant. In other words the jurisdiction of a civil court or even  of the Rent Controller to make an order of eviction against the tenant  is taken away.  The proviso, however, lifts the  ban against  eviction in certain circumstances one of  which  is that set out in el. (b).  What is important to bear in  mind is that sub-s. (1) is intended to protect the possession  of the  tenant.   A proviso to a section or  a  sub-section  is subservient  to the main  provision.  It  would,  therefore, follow that the ban against the eviction is lifted only with respect to the possession of the tenant and not of any other person.  In so far as persons other than the tenant who  may be  in  possession  of the premises  which  pertain  to  the tenancy is concerned, the matter is dealt with by s. 25  and we can leave that out at any rate for the present.   Another thing to be noticed about s. 14 is that 837 though  under  s.  2(1)(b)  of the  Act  the  word  "tenant" includes  several other persons in addition to the one  with whom  there was a contract that expression must be  regarded as relating to the same individual in the entire section  or at least in sub-s. (1) of s. 14 wherever it occurs. Thus, if in  the  first  part  of sub-s. (1) of  s.  14  "tenant"  is regarded  as  meaning as "assignee" of the  tenant  then  it would have to be given the same meaning in cl. (b) of sub-s. (1) of s. 14.  That is to say that if there is a sub-letting or  a further assignment or any other kind of  parting  with possession  by  an  assignee of  the  original  tenant  (the assignment  by the original tenant having been  accepted  or acquiesed  in by the landlord) such assignee can be  evicted by  the landlord if the action of the assignee of  the  kind mentioned was taken by him without his written consent.     Now,  since sub-s. (1) is a bar to the  jurisdiction  of the Rent Controller to make an order or decree for  recovery of  possession against a tenant it must  necessarily  follow that  the tenant must be a party to a proceeding before  him right  up to the date of the making of the decree or  order. Thus,  if  the  tenant  dies  during  the  pendency  of  the proceedings and his legal representative is not  substituted on  the  record  in his place,  the  proceeding  will  abate against   him   and  the  Rent  Controller  will   have   no jurisdiction  to  make an order in favour of  the  landlord. That  is  to say, the proviso will not be available  to  the landlord  no matter what the tenant had done if the  records of  the  proceeding  became defective  because  neither  the tenant nor his legal  representative was any longer a  party to  those  proceedings.   The reason for this  is  that  the ground upon which the landlord’s application is based can be availed  of for lifting the ban on the eviction by the  Rent Controller of the tenant alone.  Unless an order is obtained against  the tenant there would be no occasion for  pressing in aid the provisions of s. 25 of the Act.  Where during the pendency  of the proceedings before the Rent Controller  the tenant  dies or makes an assignment of whatever interest  he may  still have left in the demised premises  no  difficulty would  arise  because his legal representative  or  assignee could  be brought on record in his place.  But, it  must  be admitted,  that  an  anomalous position  results  where  the tenant  happening  to be a company is dissolved  during  the pendency  of  the  proceedings and can,  therefore,  be  not represented by any person. The Act does not contemplate this position nor even does the Code of Civil Procedure and so we

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have  it  that the defect in the record resulting  from  the dissolution  of  a company cannot be removed  at  all.   The result,  however,  of this is that the jurisdiction  of  the Controller  to proceed with the application of the  landlord and  therefore  to  make  eventually  an  order  or   decree entitling the landlord to recover possession from the tenant ceases  to be exercisable. Apparently this curious  position arises because of a lacuna in the law.  Such a lacuna cannot be  removed  by  the Courts without assuming  the  power  to legislate--which obviously is beyond the 839 competence  of any court.  The duty of courts is  merely  to administer  the  law  as they find it.   The  only  way  for remedying  the defect is for the legislature to step in  and amend the law.     The result of what has happened in this case is that the right which the landlord possessed to evict the now  defunct company  from the premises through the intervention  of  the Rent Controller because the company had assigned the demised premises  to an. other without his consent can no longer  be availed of by him. The assignee, who is the appellant before us,  can  therefore  continue to be  in  possession  of  the premises  even though he may have been liable to be  evicted with the aid of s. 25 had the company not been dissolved  in the  meanwhile.  Whether the landlord has now a right  under the general law to evict the appellant is not a matter  upon which  I  would  express  an opinion  because  it  does  not strictly  arise  at this stage.  For these reasons  I  would allow  the appeal, set aside the orders of the courts  below and dismiss the application of the respondent landlord under s. 14(1)(b) of the Act.  In  the particular circumstances of the case I would direct that costs throughout shall be borne by the parties as incurred.     Bachawat,  J. Originally one Amar Sarup owned  the  land and building at plot No. 5, Block ’M’, Connaught Circus, New Delhi. By a lease dated March 1, 1956, Amar Sarup leased the property to Allen Berry & Co. (Calcutta) Ltd.,  (hereinafter referred  to as the tenant) for a period of five years on  a monthly  rent of Rs. 297/-. Sometime thereafter, Amar  Sarup transferred  the property to the respondents.  In  or  about May,   1959,  the tenant assigned the  tenancy  rights.  and parted  with possession of the whole of the premises to  the appellant.   On  October 6, 1959, the respondents  filed  an application  before the Rent Controller, Delhi  praying  for eviction  of  the tenant and the appellant.  The  tenant,  a limited  company,  had gone into  voluntary  liquidation  on September 26, 1959 and it was finally wound up and dissolved on October 29, 1960.  On its dissolution, the tenant  ceased to exist, and by order of the Rent Controller, its name  was struck  off  from  the  array of  parties  in  the   pending application.   By an order dated October 10, 1962, the  Rent Controller   passed  an  order  of  eviction   against   the appellant.   An appeal by the appellant to the Rent  Control Tribunal,  Delhi  was dismissed on January 23, 1963,  and  a second appeal to the Punjab High Court was dismissed on  May 10,  1963. A Letters Patent Appeal from the order dated  May 10,  1963 was dismissed on December 11, 1963 on  the  ground that the appeal was not maintainable, and an appeal to  this Court from the last order was dismissed on January 18, 1965. The  appellant has now preferred this appeal from the  order dated May 10, 1963 by special leave granted by this Court.     The respondents-landlords instituted the proceeding  for eviction  of  the tenant and its assignee   relying  on  the provisions of s.  14(1)  of the Delhi Rent Control Act, 1958  (Act  59  of

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1958), the relevant portion of which is as follows:                  "14(1).   Notwithstanding anything  to  the               contrary   contained  in  any  other  law   or               contract, no order or decree for the  recovery               of possession of any premises shall be made by               any  court  or  Controller in  favour  of  the               landlord against a tenant:                  Provided  that  the Controller may,  on  an               application  made  to him  in  the  prescribed               manner,  make  an order for  the  recovery  of               possession  of the premises on one or more  of               the following grounds, namely:--                  (b)  that the tenant has, on or  after  the               9th  day  of June, 1962 sub-let,  assigned  or               otherwise  parted with the possession  of  the               whole  or  any part of  the  premises  without               obtaining  the  consent  in  writing  of   the               landlord;"     The  case of the landlords is that "the tenant  has  ... assigned... the whole of the premises without obtaining  the consent  in  writing of the landlord", and,  therefore,  the Controller had jurisdiction to make an order for possession. The  tenant is forbidden by s. 16(3)(b) of the Act  to  make the  assignment,  for  contravention of s.  16(3)(b)  he  is punishable  with fine under s. 48(2), and the assignment  is a  ground  for eviction under s. 14(1),  proviso,  paragraph (b),  and so, the landlords submit that the  Controller  had jurisdiction  to make the order for possession  against  the tenant  and  its  assignee, and on the  dissolution  of  the tenant, against the assignee alone.     Counsel for the appellant contended that the  Controller had no jurisdiction to make the order for possession in  the absence  of  the  original tenant.   I  cannot  accept  this submission.  Both the tenant and the assignee were  properly parties  to  the  proceedings for  possession,  and  if  the tenant-company had not been dissolved, the Controller  would have  been competent to make the order for possession.   The tenant has since been dissolved and ceased to exist, no  one can  be substituted in its place, and 1 do not see  why  the proceedings cannot now continue against the assignee  alone. Paragraph   (b)  of  the  proviso  to  s.  14(1)   evidently contemplates  proceedings  for possession against  both  the tenant  and the assignee, who as a result of the  assignment has been put in possession of the premises.  Counsel for the appellant made the alternative submission that paragraph (b) contemplates  an assignment by the tenant against  whom  the order  for  eviction is made, and as the appellant  was  the assignee  and not the assignor, there was no ground for  its eviction  under  paragraph  (b).   It  is  true  that  other paragraphs  of the proviso contemplate the eviction  of  the tenant  on the ground of some act on the part of the  tenant against whom 840 the   proceeding  for  possession  is  brought,  but   under paragraph  (b),  the assignment is a ground of  eviction  of both the assigning tenant and the assignee, and in the event of  an  assignment  without the consent in  writing  of  the landlord,  the Controller has jurisdiction to make an  order for  possession  not only against the assigning  tenant  but also against the assignee.     Counsel  for the appellant next referred us to cl. 7  of the lease, which is in these terms:                  "That,  whenever  such  an   interpretation               would  be  necessary  in  order  to  give  the               fullest  scope and effect legally possible  to

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             any covenant or contract herein contained, the               expression  ’The  Lessor’  hereinbefore   used               shall    include   his    heirs,    executors,               administrators and assigns and the  expression               ’The  Lessee’ hereinbefore used shall  include               their representatives and assigns." Counsel  for  the appellant submitted that by cl. 7  of  the lease, the landlords have given their consent in writing  to the assignment. I cannot accept this submission. The consent in  writing  within  the meaning of  paragraph  (b)  of  the proviso to s. 14(1) may be either general or special, but no such  consent  was given by cl. 7.  The effect of cl.  7  is that  the assignee of the lease enjoys the benefits  and  is subject to the burden of the covenants in the lease, but the clause  does not amount to a consent by the landlord  to  an assignment  either  expressly or by  necessary  implication. The  assignment to the appellant was without the consent  in writing  of the respondents.  The Controller rightly  passed the order for possession of the premises.     Counsel for the appellant contended that the contractual term of the lease not having expired on October 6, 1959. the proceeding  before the Controller was not maintainable.   We indicated in the course of the argument that this contention not  having  been  raised in the Courts below,  we  are  not inclined  to  allow the appellant to raise it here  for  the first time. In the result, the appeal is dismissed with costs. ORDER     In  accordance  with the opinion of  the  majority,  the appeal  is dismissed with costs.  The appellant will have  a month’s time from today to vacate the premises.