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, 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
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
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
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
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.
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