JUDGMENT
Sudhir Narain, J.
1. The core question in this petition is whether the petitioner acquired any right of tenancy.
2. Briefly stated the facts are that Smt. Satyawati Jain, the predecessor in Interest of respondent No. 1, filed Suit No. 44 of 1982 in the Court of Judge Small Causes for recovery of arrears of rent, ejectment and damages against Smt. Shila Devi, Anand Kumar and Yogendra Kumar Jain (petitioner herein) with the allegations that the first and second floor portion of premises No, 76/578. Kuli Bazar, Kanpur. was let out to defendant Nos. 1 and 2 for their residence. They constructed their own house No. 6/38. Purana Kanpur and shifted there with bag and baggage and thereafter illegally sublet the disputed accommodation to Yogendra Kumar Jain, defendant No. 3. The plaintiff sent a composite notice dated October 11, 1981, demanding arrears of rent and terminating their tenancy which was served on the defendant Nos. 1 and 2 on 15.10.1981 but they did not comply with the notice. It was alleged that the petitioner-defendant No. 3 was in unauthorised occupation.
3. The defendant No. 1 filed written statement. It was stated that house No. 6/38, Purana Kanpur. was not constructed by the defendant Nos. 1 and 2 but was purchased by them in the year 1960. It was denied that they had sublet the accommodation to Yogendra Kumar Jain or any other person. The Firm M/s. Pyare Lal Hazarl Lal was the tenant of the accommodation and later on It was converted into a partnership firm. Sri Yogendra Kumar Jain and Shanti Devi were not sub-tenants of the defendants, Yogendra Kumar Jain, the petitioner, did not file any written statement. He had. however, filed an affidavit as pairokar of defendant No. 2. The trial court framed the following issue :
“Whether defendant Nos. 1 and 2 illegally sublet the premises in suit to defendant No.
3. If so, its effect?”
4. On the date fixed for leading evidence the plaintiffs son, Ajit Kumar Jain, appeared as P.W. 1 and made statement in support of the version contained in the plaint. None appeared for the defendants- The trial court came to the conclusion that the tenant-defendant Nos. 1 and 2 had illegally sublet It to Yogendra Kumar Jain, defendant No. 3. and accordingly decreed the suit on 6.1.1990. The defendants including the petitioner filed an application under Order IX. Rule 13 of Code of Civil Procedure to set aside the decree of 27.1.1990 treating it as an exparte decree. The trial court rejected the application on 31.3.1990 on the ground that it was not an ex parte decree but passed on merits as Order XVII. Rule 3 of the Code of Civil Procedure was applicable on the facts of the case. The defendants filed Revision No. 82 of 1990 against this order. The revisional court dismissed the revision on 1.2.1992. The petitioner filed Writ Petition No. 8057 of 1992 against the order dated 31.3.1990 and 1.2.1992 which has been dismissed by the Court.
5. The defendants thereafter filed revision against the Judgment of the Judge Small Causes Court dated 6.1.1990 along with an application to condone the delay in filing the revision. During the pendency of the said revision, the defendant Nos. 1 and 2. namely, Shila Devi and Anand Kumar filed application on 18.11.1992 stating that they do not want to press the revision and accept the judgment of the Judge Smalt Causes Court and they had entered into compromise with the plaintiff. They prayed that the revision be decided in terms of the compromise. Respondent No. 1 rejected the application filed by the applicants to condone the delay in filing the revision by its order dated 15.9.1993. The petitioner has filed Writ Petition No. 45912 of 1993 against this order. The defendant Nos. 1 and 2. the
tenants, did not file any written statement.
6. The learned counsel for the petitioner contended that the petitioner was sub-tenant of the disputed premises and the tenants defendant Nos. 1 and 2 having surrendered their tenancy under the compromise during the pendency of the revision, the petitioner shall be entitled to the same rights as that of a tenant under law. While deciding this question, it is necessary to examine as to whether the petitioner has acquired any right of sub-tenancy under law.
7. The petitioner had not filed any written statement In the suit though he had filed affidavit as pairokar of Anand Kumar. defendant No. 2. The defendant No. 2 had also not filed any written statement. The written statement was filed only by defendant No. 1. Shila Devi. In the written statement, it was stated that the Firm M/s. Pyare Lal Hazari Lal, a Hindu undivided family firm was tenant of the disputed accommodation. After the death of Pyare Lal, the share of Hindu undivided family firm was partitioned and the said firm Pyare Lal Hazart Lal was converted into a partnership firm having Hazari Lal, husband of defendant No. 1 and father of defendant No. 2 and Laxmi Chand Jain, as partners. Hazari Lal expired on 11.7.1958. A partnership deed dated 23.7.1958 was written in which Laxmi Chand Jain and Shila Devi Jain (defendant No. 1) were partners and Sri Anand Kumar Jain and all daughters and son of Hazari Lal were taken as beneficiaries to the partnership firm. In paragraph 24. it was denied that the defendant Nos. 1 and 2 sublet any portion of the disputed accommodation. As regards the petitioner, his status was disclosed in paragraph 27 that he was living in the accommodation as an employee of the Firm M/s. Pyare Lal Hazari Lal which reads as under :
“That in 1970 after the death of Shri Laxmi Chand Jain the answering defendant along with Shri Anand Kumar shifted the residence from premises No.
76/578 to 6/38 Old Kanpur. to the knowledge of the plaintiff and her predecessors, and Shri Yogendra Kumar son of Shanti Devi who is the son of widowed Nand of the answering defendant is also an employee of the firm M/s. Pyare Lal Hazarl Lal and is living in the accommodation along with her mother as such.”
8. From the averments made in the written statement, it is clear that defendant No. 1 filed written statement stating that petitioner was not sub-tenant and his status was only as an employee of M/s. Pyare Lal Hazari Lal. An employee of a tenant will not acquire the status of subtenant. The sub-tenancy implies contract between the tenant and the sub-tenant to part with the possession in his favour for consideration.
9. Learned counsel for the petitioner contended that the plaintiff landlady and her predecessors-tn-Interest had acquiesced In possession of the petitioner in the disputed premises. There are two aspects In this respect : one, acquiescence by the landlord of possession of a person who is working as an employee of a tenant and second, acquiescence of the landlord in regard to sub-tenancy created by the tenant. Where the acquiescence by the landlord is only in respect of possession of an employee of a tenant, it shall not be taken as acquiescence in respect of subtenancy of an accommodation by a tenant. In Mahabir Singh v. Anant Ram and others, AIR 1966 All 214. it was held that if the landlord had admitted that the sub-tenancy had lasted for four years within his knowledge and the rent has been paid by the subtenant In presence of the landlord on several occasions, a presumption of acquiescence of subletting will arise.
10. A tenant was not entitled to create sub-tenancy after enforcement of U. P. (Temporary Rent Control and Eviction) Act, 1947. as Section 7 (3) of the Act provided that no tenant shall sublet any portion of the accommodation in his tenancy except with the permission In writing of the landlord
and of the District Magistrate previously obtained. Section 25 of U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1972, also prohibits subletting without the permission In writing of the landlord and of the District Magistrate. In Smt. Kanta Srivastava v. Surendra Singh and others, 1982 (2) ARC 370. it has been held that even if the landlord acquiesces in subletting, in view of absence of permission of the District Magistrate, the tenant would still be liable to eviction as the sub-tenancy was created in contravention of Section 25 of the Act. In Smt. Shyam Kumari Gupta v. Shanker Sahai and another, 1982 ALR 632. it was held that the contravention of provision of Section 25 of the Act can take place if subletting was done on or after commencement of Act No. XIII of 1972. It was further observed that the right of the landlord to file suit for eviction of the tenant is conferred by clause (e) of Section 3 of the Rent Control Act of 1947, which right can be waived under the doctrine of acquiescence. It is, however, not necessary to go into the controversy as to the effect of acquiescence by landlord In respect of subletting in contravention of the provisions of the Act. On the pleadings of defendant No. 1 itself and on the evidence adduced in the case. it has been found that the landlord had never acquiesced in subletting.
11. The case of the plaintiff-respondent was that the defendant Nos. 1 and 2 had illegally sublet the disputed accommodation. The plea of defendant-tenant was that there was no subletting but the petitioner was living only as a licensee being an employee of their firm. It was not the case that the plaintiff had acquiesced in subletting. The Court recorded a finding on the evidence that defendant Nos. 1 and 2 had Illegally sublet the accommodation. There was no pleading and evidence adduced on behalf of the petitioner that the plaintiff acquiesced in subletting of the disputed accommodation by the defendant Nos. 1 and 2.
12. It is next contended by the learned counsel for the petitioner that
a sub-tenant has a right to continue in occupation if tenant vacates the premises under his tenancy. It is urged that the tenant during the pendency of the revision entered into a compromise with the landlord to vacate the disputed accommodation and on such compromise, it shall be taken that they relinquished their rights of tenancy and on such relinquishment, the petitioner shall be entitled to get tenancy rights under Section 115 of the Transfer of Property Act which provides that if the lessee surrenders his rights, it will not prejudice an under sublessee. It reads as under :
“115. Effect of surrender and forfeiture on under-leases.–The surrender, express or Implied, of a lease of immovable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease ; but unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on. the under-lessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such under-leases except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under Section 114.”
13. Section 115 of the Transfer of Property Act confers a right on the sub-lessee to get a new lease from the lessor on the surrender of lease by the lessee. In Wood fall’s ‘Landlord and Tenant’ Twenty Seventh Edition Vol. 1 pages 860-1, while considering a surrender by express term, it has been observed as under :
“A surrender is the yielding up of an estate for life or years to him who has the immediate estate In reversion or remainder wherein the estate for life or years may merge by mutual
agreement….. It differs
from a release in this respect that the release operates by the greater estate descending upon the less, whereas a surrender is the falling of a less estate into a greater.”
Further in Article 1859. stating the requisites of a good surrender it is observed again :
“That the surrenderee has a higher and greater estate in the thing surrendered than the surrenderor hath, so that the estate of the surrenderer may be drowned therein.”
14. In M. S. Ram Stngh v. Bijoy Singh Surana and another. AIR 1972 Col 190, It was held that surrender in law is the yielding up by the lessee of his interest in the lease and it thereby brings in extinction to the lease, so that the relationship of the parties to the lease comes to an end and there is no subsisting interest of the lessee after its extinguishment by surrender, which may devolve or come on the lessor. The under-lessee is given statutory protection of his interest under his new landlord, as lessor, on the same terms and conditions of his original tenancy. The under-lessee becomes a lessee directly under the lessor with all Incidents of his sub-lease and such relationship comes into existence under the operation of the statute, on surrender of the head lease and not by devolution or assignment by the lessee of his interest in the lessor.
15. In Sarju Prasad v. Kunj Bihari Lal and others, 1957 ALJ 731, where an accommodation was sought to be declared vacant under Section 7 (1) (a) of U. P. (Temporary Control of Rent and Eviction) Act. 1947. it was held that a lessee by surrender cannot destroy the rights which he has himself created in favour of the under-lessee. When the lessee surrenders to the lessor, the sublessee becomes a lessee of the lessor and the premises cannot be considered as vacant. Similar view was taken in Mohd. Shafi v. Commissioner, Allahabad, Division, Allahabad and others, 1959 ALJ 188.
16. These decisions have no application where the tenant is liable for eviction under the provisions of U. P. Act No. XIII of 1972. The right of sub-tenant cannot be more than that of the tenant and if he is liable to ejectment under the Act, the subtenant cannot resist his eviction. Secondly, there is no prohibition in the Act against relinqufshment of leased premises by the tenant to his landlord on his own will. In Abdul Samis v. Lachman Das and another, 1955 ALJ 259, It has been held that if the tenant has relinquished the leased premises, the sub-tenant will have no right to continue in occupation. In Rupchand Gupta v. Raghuvanshi (Private) Ltd. and another, AIR 1964 SC 1889. where the sub-tenant filed suit for cancellation of decree where the tenant had entered into compromise with the landlord to vacate the accommodation on the ground that it was collusive, the Court repelled the contention holding that the mere fact that the lessee did not contest the suit in pursuance of his agreement with the plaintiff-landlord, would not be treated as collusive and further the sub-tenant had no right to be impleaded as a party in the suit and made the following observation :
“Taking the last action first, viz., Raghuvanshl’s omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sublessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sublessee. This may act harshly on the sub-lessee ; but this is a position well understood by him when he took the sub-lease. The law allows this and so the
omission cannot be said to be an Improper act.”
17. The learned counsel for the petitioner has placed reliance upon the decision Rajendra Nath Tewari and another v. IIIrd Additional District Judge, Allahabad and others, 1981 ARC 271. where the Court held that if the sub-tenant was inducted by the tenant with the consent of the landlord and was in possession since before the enforcement of the Act. he was entitled to benefit of Section 14 of Act No. XIII of 1972. This case has no application where it has been found that there was no valid consent by the landlord. In another decision Shyam Babu v. District Judge, Moradabad and others, 1984 (1) ARC 248, the Supreme Court held that a sub-tenant occupying the premises with the consent of the landlord, his hardship is also to be taken into account while considering the application for release submitted by the landlord before the prescribed authority under Section 21 (1) (a) of the Act keeping in view the fourth proviso of the sub-section. This case also has no application when it has been found that the petitioner was not Inducted as sub-tenant with the consent of the landlord.
18. The petitioner has also challenged the order whereby the application for setting aside the decree was rejected on the ground that it was decided on merits. As the petitioner had not filed any written statement in the suit nor adduced any evidence, I do not find it is a fit case for interference in the decree passed by the Courts below. The tenants have already accepted the decree.
19. The tenants had not surrendered the tenancy. They had only accepted the decree which was passed by the trial court. They had categorically stated in their application that they accept the finding recorded by the trial court.
20. In view of the above. I do not find any merit in the writ petition and it is accordingly dismissed. However, the parties shall bear their own costs.