Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
GOPPULAL
Vs.
RESPONDENT:
THAKURJI SHRIJI SHRIJI DWARKADHEESHJI & ANR.
DATE OF JUDGMENT:
12/03/1969
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.
CITATION:
1969 AIR 1291 1969 SCR (3) 989
1969 SCC (1) 792
CITATOR INFO :
F 1974 SC2331 (3)
D 1975 SC2156 (12,13,15,16)
D 1980 SC1866 (7)
RF 1981 SC1284 (30)
R 1987 SC2016 (13)
APL 1989 SC 467 (10,11)
E&F 1990 SC 879 (6)
ACT:
Rajasthan Premises (Control of Rent & Eviction) Act, (Raj.
17 of 1950), s. 13(1)(e)-Sub-letting before enforcement of
the Act-Ejectment, if possible-Landlord and tenant-Increase
of rent-If imports new demise-Sub-letting-How established.
HEADNOTE:
The respondent-landlord let out to the appellant four shops
and later one let out to him two more shops. The respondent
filed a suit alleging that subsequent to the letting of the
shops, by a contract, the rent was consolidated and
increased and that the shops were sub-let by the appellant,
so the appellant be ejected from all the six shops under s.
13 (1) (e) of the Rajasthan Premises (Control of Rent and
Eviction) Act. The appellant denied the contract and denied
the subletting altogether. The trial court dismissed the
suit, and the first appellate court affirmed the decree.
Both these courts concurrently found that new contract of
tenancy was not created, it was only an increase of rent,
the other terms of the tenancy remained unaltered, and that
the two shops were sub-let but with the permission of the
landlord. The High Court, in second appeal, reversed the
decree of the courts below, and held that there was one
integrated tenancy of all the shops, that the four shops
were sub-let with the permission of the landlord, but the
later two were sub-let without permission, and that having
sub-let a part of the premises without the permission, the
decree for possession of all the shops must be passed.
appeal to this Court, the appellant-tenant contended that
(i) the tenancy of all the six shops were not one
integrated; (ii) two shops were not sublet without the
permission of the landlord; and (iii) the sub-letting was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
before the Jaipur Rent Control Order, 1947 came into force,
which was repealed and continued by the promulgation of the
Rajasthan Premises (Control of Rent & Eviction) Act, 1950,
and therefore ejectment could not be claimed under s. 13(1)
(e) of the Act.
HELD : The appellant could not be ejected from four shops,
but ought to be ejected from the two shops.
(i) A mere increase or reduction of rent does not
necessarily import the surrender of the existing lease and
the grant of a new tenancy. In the present case the first
two courts on a review of the entire evidence came to the
conclusion that the increase of rent did not import a new
demise. This finding of fact was binding on the High Court
in second appeal and it erred in holding that there was one
integrated tenancy of the six shops. [991 H-992 B]
(ii) In the absence of any pleading and any issue on the
question of sub-letting, the first two courts were in error
in holding that the two shops were sub-let with the
permission of the landlord. The permission of the landlord
for the sub-letting cannot be established from the mere fact
that the landlord realised rent after the sub-letting in the
absence of proof that the landlord had then clear knowledge
of the sub-lease. [992 D]
The date of the sub-letting of the two shops is not
mentioned in the plaint. In the absence of any pleading and
any issue on this question the
990
High Court was error in recording the finding that the two
shops were sub-let towards the end of 1947 after the Jaipur
Rent Control Order 1947 came into force. It can only be
said that the sub-letting was sometime after 1945. [992 E]
(iii) Section 13(1)(e) of the Act was intended to apply
to sub-letting before the Act came into force. If the
tenant had sub-let the premises without the permission of
the landlord either before or after the coming into force of
the ’Act, he was not protected from eviction under s. 13(1)
(e), and it matters not that he had the right to sub-let the
premises under s. 108(j) of the Transfer of Property Act.
The present perfect tense, by words "has sub-let" in s.
13(1)(e) of the Act contemplates a completed event connected
in some way with the present time. The words take within
their sweep any sub-letting which was made in the part and
has continued up to the present time. It did not matter
that the subletting was either before or after the Act came
into force. Further ss. 26 and 27(1) of the Act
contemplated that grounds of eviction mentioned in s. 13 may
have arisen before the Act came into force. [993 D-994 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 53 of 1969.
Appeal by special leave from the judgment and decree
dated November 1, 1968 of the Rajasthan High Court in Civil
Regular Second Appeal No. 487 of 1962.
C. B. Agarwala, Rameshwar Nath and Mahinder Narain, for
the appellant.
B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the
respondents.
The Judgment of the Court was, delivered by
Bachawat, J. This appeal arises out of a suit for ejectment
by a landlord against a tenant. The defendant is the tenant
of six shops belonging to Thakurji Shri Shri Dwarkadheeshji
installed in the temple at Chaura Raasta, Jaipur. Devendra
Prasad is the adhikari or manager of the temple. He gave a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
notice to the defendant to quit the shop on August 1, 1957.
On February 28, 1958, the deity and Devendra Prasad filed a
suit against the defendant claiming recovery of possession
of the six shops and Rs. 1,006/- on account of arrears of
rent. The suit was governed by the Rajasthan Premises
(Control of Rent and Eviction) Act, 1950 (Act No. XVII of
1950). The plaintiffs asked for ejectment of the defendant
on the ground that he had sublet the six shops. The other
grounds of ejectment were not established, and it is not
necessary to mention them. The courts below concurrently
found that Devendra Prasad as’ the adhikari of the temple
was entitled to give the notice to quit and to maintain the
suit.
The trial court hold that (1) all the six shops were sub-let
by the defendant; (2) the sub-leting was with the permission
of
991
the landlord and (3) the notice to quit was waived by
acceptance of rent subsequently accrued due. Accordingly,
the trial court dismissed the suit so far as it claimed
ejectment and passed a decree for Rs. 1,006 on account
arrears of rent. The plaintiff filed an appeal against the
decree. The District Judge, Jaipur City, dismissed the
appeal. The plaintiffs filed a second appeal against the
decree. The High Court held that (1) there was on
integrated tenancy of all the six shops; (2) four shops were
sub-let with the permission of the landlord; (3) two shops
were sub-let without the permission of the landlord towards
the end of 1947; (4) the tenant having sub-let a part of the
premises without the permission of the landlord the ground
of eviction- under clause (e) of s. 13(1) was made out and
the landlord was entitled to a decree for possession of all
the six shops and (5) there was no waiver of the notice to
quit. Accordingly, the High Court allowed the appeal and
passed a decree for eviction of the defendant from the six
shops. The present appeal has been field by the defendant
after obtaining special leave.
Counsel for the appellant conceded that there was no waiver
of the notice to quit by acceptance of rent or otherwise.
The points arising ’for determination in this appeal are :
(1) was there one integrated tenancy of all the six shops ?
(2) were the two sub-let without the permission of the
landlord towards the end of 1947 ? and (3) is the sub-
letting a ground of ejectment under clause (e) of s. 13 (1)
of the Rent Act ?
As to the first question, we find that four shops
were let to the defendant in 1944 and the other two shops on
the northern side of the staircase of the temple were let to
him in 1945. The rent of the four shops was Rs. 1501- per
month. The rent of the other two shops was Rs. 65/- per
month. In paragraph 5 of the plaint it was pleaded that in
1953 the defendant agreed to pay a consolidated rent of Rs.
251/8/- per month for all the six shops and to vacate them
by July 31, 1957. In paragraph 5 of the written statement
the defendant denied this contract and alleged that in 1953
there was only an enhancement of rent. The first two courts
found that in 1953 there was no new contract of tenancy,
that there was only an increase of rent and that the other
terms and conditions of the tenancy remained unaltered. This
finding was not vitiated by any error of law.
A mere increase or reduction of rent does not necessarily
import the surrender of the existing lease and the grant of
a new tenancy. As stated in Hill and Redman’s Law of
Landlord and Tenant, 14th ed., art. 385, p. 493 :-
"But a surrender does not follow from a mere
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
agreement made during the tenancy for the
reduction
992
or increase of rent, unless there is some
special reason to inter a new tenancy, where
for instance, the parties make the change in
the rent in the belief that tile old tenancy
is at an end."
In the present case the first two courts on a review of the
entire evidence came to the conclusion that the increase of
rent did not import a new demise. This finding of fact was
binding on the High Court in second appeal. The High Court
was in error in holding that there was one, integrated
tenancy of the six shops.
As to the second question the defendant denied that he sub-
let the two shops. The courts below concurrently found that
this denial was false and that he sub-let the two shops to
his brotherin-law Ram Gopal. There was no pleading nor any
issue that the sub-letting of the two shops was made with
the permission of the landlord. It was not the case of the
defendant at any stage of the trial that he had obtained the
permission of the landlord for sub-letting the two shops.
In the absence of any pleading and any issue on his joint
the first two courts were in error in holding that the two
shops were sub-let with the permission of the landlord. The
permission of the landlord for the sub-letting is not
established from the mere fact that the landlord realised
rent after the sub-letting in the absence of proof hat the
landlord had then clear knowledge of the sub-lease.
The date of the sub-letting of the two shops is not
mentioned in the plaint. In the absence of any pleading and
any issue on his question the High Court ’was in error in
recording the finding that the two shops were sub-let
towards the end of 1947 after the Jaipur Rent Control Order
1947 came into force. We can only say that the sub-letting
was sometime after 1945.
As to the third question : section 13(1) of the Rajasthan
Premises (Control of Rent & Eviction) Act, 1950 provides :-
"Notwithstanding anything contained in any law
or contract, no Court shall pass any decree,
or make any order, in favour of a landlord,
whether in execution of a decree or otherwise,
evicting the tenant so long as he is ready and
willing to pay rent therefor to the full
extent allowable by this Act, unless it is
satisfied-"
The sub-section then sets out several grounds of ejectment
under twelve main heads. Clause (e) mentions the following
ground :-
" that the tenant has assigned, sub-let or
otherwise parted with the possession of, the
whole or any part of the promises without the
permission of the landlord."
993
The appellant’s contention is that sub-letting before the
Act came into force is not within the purview of clause (e).
The High Court held that the two shops were sub-let after
October 15, 1947 when the Jaipur Rent Control Order, 1947
came into force, that the sub-letting was a ground of
ejectment under paragraph 8 ( 1 ) (b) (ii) of that Order and
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. With regard to
this line of reasoning it is sufficient to say that the
plaintiffs have not established that the sub-letting was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
after October 15, 1947. The case must be decided on the
footing that on the date of the sub-letting, no Rent Control
legislation was in force.
The question whether a subletting before the coming into
force of the Act is within the purview of clause (e) of s.
13(1) depends upon the construction of that clause. The
relevant words are "has sub-let". The present perfect tense
contemplates a completed event connected in some way with
the present time. The words take within their sweep any
sub-letting which was made in the past and has continued up
to the present time. It does not matter that the sub-
letting was either before or after the Act came into force.
All such sub-lettings are within the purview of clause (e).
Sections 26 and 27(1) of the Act throw considerable light on
the construction of s. 13(1). They are as follows :-
"26. No decree for the eviction of a tenant
from any premises in areas to which this Act
extends for the time being, passed before the
date of commencement of this Act shall in so
far as it relates to the eviction of such
tenant be executed against him, as long as
this Act, remains in force therein, except on
any of the grounds mentioned in s. 13 and
under the circumstances specified in this Act.
27(1) In all suits for eviction of tenants
from any premises in areas to which this Act
has been extended undersection 2, pending on
the date specified in the notification under
that section, no decree for eviction shall be
passed except on one or more of the grounds
mentioned in section 13 and under the circum-
stances specified in this Act."
Section 26 bars the execution of a decree for eviction
passed before the commencement of the Act except on any of
the grounds mentioned in s. 13 and under the circumstances
specified in the Act. Likewise, s. 27(1) bars the passing
of a decree for eviction in a pending suit except on one or
more of the grounds under
994
s. 13 and under the circumstances specified in the Act.
Sections’ 26 and 27(1) clearly contemplate that the grounds
of eviction mentioned in s. 13 may have arisen before the
Act came into force.
The argument that section 1 3 ( 1 ) (e) takes away vested
rights and should not be given a retrospective effect is
based on fallacious assumptions. Apart from the Rent Act
the landlord is entitled to eject the tenant on the expiry
of the period mentioned in the notice to quit. Section
13(1) protects the tenant from eviction except in certain
specified cases. If one of the grounds of ejectment is made
out the tenant does not qualify for,protection from
eviction. We find no reason for presuming that s. 13 (1)
(e) is not intended to apply to sub-lettings before the Act
came into force. If the "tenant has sub-let" the premises
without the permission of the landlord either before or
after the coming into force of the Act, he is not protected
from eviction under s. 13 ( 1 ) (e), and it matters not that
he had the right to sub-let the premises under s. 108(j) of
the Transfer of Property Act.
The plaintiffs have thus established the ground of eviction
under s. 1 3 (1 ) (e) with regard to the two shops on the
northern side of the staircase of the temple. With regard
to the four other shops the courts below concurrently found
that they were sublet with the permission of the land-lord.
In our opinion, the plaintiffs are entitled to a decree for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
ejectment of the defendant from the two shops and the claim
for eviction from the other four shops should be dismissed.
In the result, the appeal is allowed in part. The decree
passed by the High Court for eviction of the defendant from
the four shops is set aside and the suit in so far as it
claims eviction from the four shops is dismissed. The
decree passed by the High Court for eviction of the
defendant from the other two shops on the northern side of
the staircase of the temple mentioned in paragraph 4 of the
plaint is affirmed. Parties will pay and bear their own
costs throughout, in this Court and in all the courts below.
The defendant will have one month’s time to vacate the two
shops.
Y.P. Appeal allowed in part.
995