PETITIONER:
GAJANAN DATTATRAYA
Vs.
RESPONDENT:
SHERBANU HOSANG PATEL & ORS.
DATE OF JUDGMENT29/08/1975
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 2156 1976 SCR (1) 535
1975 SCC (2) 668
CITATOR INFO :
RF 1987 SC2220 (16)
RF 1990 SC 879 (4,6)
R 1991 SC1040 (3)
ACT:
Bombay Rents, Hotel & Lodging House Rates Control Act
1947-Section 13(1)(e) -Subletting a ground for eviction
whether must continue on the date of institution of suit or
whether sufficient if exists on the date of notice
terminating tenancy.
HEADNOTE:
The respondent-landlord filled a suit for eviction
against the appellant-tenant on the ground that the
appellant had sublet a portion of the premises. The trial
court and the First Appellate Court came to the conclusion
that on the date when the notice terminating the tenancy was
served on the appellant, he did, in fact, sublet a portion
of the suit premises. The courts, however, came to the
conclusion that on the date when the respondent instituted
the eviction suit the sub letting had ceased. The trial
court and the lower appellate court granted a decree of
eviction in favour of the respondent. A revision filed by
the appellant before the High Court also failed. Section
13(1)(e) of the Bombay Rents Act makes a ground of eviction,
"that the tenant has, since the coming into operation of'
this Act, unlawfully sublet.. "
On appeal by special leave, it was contended by the
appellant that the expression "has sublet" pre-supposes that
subletting must continue till the date of the institution of
the suit.
Dismissing the appeal.
^
HELD: (1) The tenant is disentitled to any protection
under the Bombay Rent Act if he is within the mischief of
the provisions of s. 13(1)(e). To accede to the contention
of the appellant would mean that a tenant would not be
within the mischief of unlawful subletting if after the
landlord gives a notice terminating the tenancy on the
ground of unlawful subletting the sub-tenant vacates. The
landlord will not be able to get any relief against the
tenant in spite of unlawful subletting. In that way the
tenant can foil the attempt of landlord to obtain possession
of the Premises on the ground of subletting every time by
getting the sub-tenant to vacate the premises. [538-D]
(2) The tenant's liability to eviction arises when the
fact of unlawful subletting is proved. At the date of the
notice if it is proved that there was unlawful subletting,
the tenant is liable to be evicted. [538-D]
Maganlal Narandas Thakkar & Anr. v. Arjun BhanjiKanbi
[969]G.L.R. Vol. 10 p. 627 Goppulal v. Thakurji Shriji
Shriji Dwarkadheeshji & Anr. [1969] 3 S.C.R. 989,
distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 591 of
1974.
Appeal by Special Leave from the Judgment and order
dated the 15th February, 1974 of the Gujarat High Court in
Civil Revision Appln. No. 326/71.
P. H. Parekh and Manju Jaitley, for the appellant.
S. S. Khanduja and R. N. Bhalgoha, for respondents 2-4.
The Judgment of the Court was delivered by
RAY, C.J.-This appeal is by special leave from the
judgment dated 15 February, 1974 of the Gujarat High Court
dismissing the revision petition filed by the appellant.
536
The appellant filed a Revision Petition in the High
Court against the judgment and decree passed by the
District Judge dismissing his appeal against the decree for
eviction of the appellant from the suit premises.
The respondent filed the suit against the appellant for
possession of the premises on the ground that the appellant
had sublet a portion of the premises.
Section 13(1) (e) of the Bombay Rents, & Hotel and
Lodging House r Rates Control Act, 1947 which is the
relevant section for the purpose of this appeal runs as
follows :
“13(1)(e) That the tenant has, since the coming
into operation o this Act, unlawfully sublet, or after
the date of Cr 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”.
The appellant took on lease on 1 January, 1960 the
premises, namely, first floor consisting of four rooms at a
rent of Rs. 50/- per month.
The respondent alleged that the appellant sublet a
portion thereof, namely, two rooms, in the month of August,
1965. The respondent on 1 April, 1967 gave a notice to the
appellant terminating the tenancy.
The appellant denied that there was any unlawful
subletting of two rooms to respondent No. 5 Jitendra
Shankerji Desai. The appellant further alleged that the
respondent No. 5 Desai vacated the suit premises on 14
April, 1967.
At the trial the issues were whether the appellant
unlawfully sublet two rooms to respondent Desai. The Trial
Court held that the appellant sublet the suit premises to
respondent No. S. The Trial Court gave the plaintiff-
respondent a decree for possession of the suit premises.
The appellant preferred an appeal. The appeal was
dismissed.
The appellant, thereafter, filed a revision petition in
the High Court. In the High Court the contentions were
these. The expression “the tenant has sublet” in section
13(1)(e) of the above mentioned Act means that the
subletting must continue at the date of the suit for passing
the decree. The notice was given on 1 April, 1967. The
respondent No. 5 vacated the premises in suit on 14 April,
1967. When the suit was filed the sub-tenant was not in
occupation of the premises. Therefore, the plaintiff
respondent was not entitled to a decree.
The High Court relied on a Bench Decision of that High
Court Maganlal Narandas Thakkar & Anr. v. Arjan Bhanii
Kanbi(1)
(1) 1969 G.L.R. Vol. 10 p. 837.
537
where it was held that the words “has sublet” in
section 13(1) (e) of the Saurashtra Rent Control Act mean
that a subletting has take place and as a result of that
subletting the impediment in the way of the landlord to
recover possession has been removed. The provisions
contained in section 13(1)(e) of the Saurashtra Rent Control
Act are r similar to the provisions contained in the Bombay
Act; 1947. The High Court also held that the wards ‘has
sublet’ do not include any element of the sub-tenancy being
in existence at the date when the suit is filed.
The appellant relied on a decision on this Court in
Goppal v. Thakurji Shriji Shriji Dwarkadheeshji & Anr
support of the proposition that the words “has sublet” means
that the subletting is to subsist at the date of the suit.
This Court in Goppulal’s case (supra) considered section
13(1) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950. Section 13(1) (e) of the Rajasthan Act
provides that no decree evicting the tenant shall be passed
unless the Court is satisfied “(e) that the tenant has
assigned, sublet or otherwise parted with the possession of
the whole or part of the premises, without the permission of
the landlord”.
The High Court in Goppulal’s case (supra) held that
two. shops were sublet after October 15, 1947 when the
Jaipur Rent Control order, 1947 came into force. Subletting
was a ground for ejectment under paragraph 8 (1) (b) (ii) of
the Jaipur Rent Control order, 1947. The High Court held
that the tenant’s liability for eviction on this ground
continued after the promulgation of the Rajasthan Premises
(Control of Rent and Eviction) Act, 1950.
This Court said that the High Court was in error that
there was one “integrated tenancy” for six shops. The facts
found were that four shops were let out in 1944 and two
shops were let out after 1945. This Court found that the
High Court was in error in holding that two shops were
sublet after 15 October, 1947.
This Court held that the plaintiffs in Goppulal’s case
(supra) did not establish that the subletting was after 15
October, 1947 and on the Date of the subletting in 1944, no
Rent Control Legislation was in force. lt is in that context
that it is said that the words “has sublet” contemplate a
completed event connected in some way with the present
time”. This Court said that the words “has sublet” take
within their sweep any subletting which was made in the past
and has continued upto the present time”. What is meant by
these observations is that the vice of subletting which fell
within the mischief of the Act continues to be a mischief
within the Act. In Goppulal’s case (supra) there was no
subletting in 1947 to violate the 1947 Jaipur Rent Control
order and therefore there could not be any subletting which
could continue upto the 1950 Rajasthan Act.
On the date of the subletting in 1944, this Court
found in Goppulal’s case (supra) that there was no Rent
Control Legislation in
(1) [1969] 3 S.C.R. 989.
4-L925SupCI/75
538
force This Court did not consider the question as to whether
subletting to be within the mischief of the relevant statute
was to subsist at the date of the suit. This Court held that
section 13(1)(e) of the Rajasthan Act would include any
subletting which though made in the past would continue at
the point of the time when the Act came into force.
The appellant repeated the same contentions which had
been advanced before the High Court. The provisions of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 indicate that a tenant is disentitled to any protection
under the Act if he is within the mischief of the provisions
of section 13(1)(e), namely, t that he has sublet. The
language is that if the tenant has sublet, the protection
ceases. To accede to the contention of the appellant would
mean that a tenant would not be within the mischief of
unlawful subletting if after the landlord gives a notice
terminating the tenancy on the ground of unlawful subletting
the sub-tenant vacates. The landlord will not be able to get
any relief against the tenant in spite of unlawful
subletting. In that way the tenant can foil the attempt of
landlord to obtain possession of the premises on the ground
of subletting every time by getting the sub-tenant to vacate
the premises. The tenant’s liability to eviction arises once
the fact of unlawful subletting is proved. At the date of
the notice, if it is proved that there was unlawful
subletting, the tenant is liable to be evicted. The High
Court rightly rejected the revision petition.
The appeal is dismissed with costs. ]
P.H.P. Appeal dismissed.
539