Full Judgment Text
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PETITIONER:
KARAM SINGH SOBTI & ANR.
Vs.
RESPONDENT:
SHRI PRATAP CHAND & ANR.
DATE OF JUDGMENT:
29/08/1963
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
DAS, S.K.
GUPTA, K.C. DAS
CITATION:
1965 AIR 83 1964 SCR (4) 673
CITATOR INFO :
RF 1965 SC 87 (10)
ACT:
Delhi Rent Control Act, 1958--Section 57, scope and effect
of-Meaning of "shall have regard to the provisions of this
Act" in s. 57(2) first proviso--Delhi Ajmer Rent Control
Act, 1952, s. 35--Revisional Jurisdiction of High Court-
Finding by lower appellate court that landlord acquiesced in
subletting--Whether High Court could interfere on the ground
of no evidence.
648
HEADNOTE:
By s. 13 of the Delhi and Ajmer Rent Control Act, 1952 which
came into force on June 9, 1952, courts were prohibited from
directing eviction of a tenant at the suit of a landlord
excepting in the cases mentioned in the proviso to it.
Clause (c) of the proviso permitted ejectment where the
"tenant without obtaining the consent of landlord has before
the commencement of this Act sub-let. . . . the premises"
Relying on this clause the respondent landlord filed a suit
against the appellant and respondent no. 2 for their
ejectment from a shop room let to the latter alleging that
it had been sub-let to the appellant without his consent.
The appellant resisted the suit on the ground that the
respondent land lord had acquiesced in the subletting. The
trial judge decreed the suit holding that the respondent
landlord had not done so. The appellant alone appealed to
the Additional Senior Sub-judge who set aside the order of
the trial judge taking the view that the respondent landlord
had acquiesced in the sub-letting. He also held that the
subletting had commenced not later than November 1950. The
landlord moved the High Court in revision under s. 35 of the
Act.
While the matter was pending in the High Court, the Delhi
Rent Control Act, 1958, came into force. Section 57 of the
Act of 1958, provided; "(1) The Delhi and Ajmer Rent Control
Act, 1952, in so far as it is applicable to the Union
Territory of Delhi, is hereby repealed. (2) Notwithstanding
such repeal, all suits and other proceedings under the said
Act pending, at the commencement of this Act, before any
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court or other authority shall be continued and disposed of
in accordance with the provisions of the said Act, as if the
said Act had continued in force and this Act had not been
passed: Provided that in any such suit or proceeding for the
fixation of standard rent or for the eviction of a tenant
from any premises to which s. 54does not apply, the court or
other authority shall have regard to the provisions of this
Act: Provided further that the, provisions for under the
said Act shall continue in force in respect of Suit,, and
proceedings disposed of thereunder."
The Court held that by reason of the provisions of subs. (2)
of S. 57 of the Act of 1958 the revision case had to be dis-
posed of in accordance with the provisions of the Act of
1952. It also held that there was no evidence to justify
the appellate court’s findings that the respondent had
acquiesced in the sub-letting by respondent no. 2 to the
appellant. In that view of the matter the High Court
allowed the petition of revision. The appellant then
appealed to this Court.
Held: It was competent for the High Court under s. 35 of
the Act of 1952 to interfere with the findings of the court
below on the question of acquiescene on the ground that
there was no evidence to support that finding. If a court
had arrived at a finding without any evidence to support it,
it can be legitimately said that it had not decided the case
"according to law" within the meaning of that expression in
s. 35.
649
Hari Shankar v. Rao Girdhai Lall Chowdhury, 119621 Supp. I
S.C.R. 933, Pooran Chand v. Motilal, 119631 Supp. 2 S.C.R.
906 and Lala Beni Ram v. Kundan Lal, (1899) L.R. 26 I.A. 58,
referred to.
The right of’ the appellant to challenge the decree of the
trial Judge by appeal could not be affected by the failure
of the respondent no. 2 to file an appeal.
Per Das, Acting C. J., and Hidaytullah, J. (Sarkar, J.
dissenting): The first proviso to s. 57(2) of the Delhi Rent
Control Act, 1958 does not demand that a suit for the
eviction of it tenant filed under the Delhl and Ajmer Rent
Control Act, 1952, must be governed entirely by the
provisions of the new Act. The provisions applicable
continue to be the provisions of the old Act with this
addition that where the new Act has slightly modified or
clarified the previous provisions, those modifications and
clarifications should IV applied. Where entirely new rights
and new liabilities have been created, the new provisions
must not be allowed to override the provisions of the old
Act. If the expression "shall have regard to the provisions
of this Act" in the first proviso to s. 57(2) means that the
provisions of the Delhi Rent Control Act, 1958, shall apply
to ill such suits or proceedings as are referred to in s.
57(2) except in the matter of the jurisdiction of the civil
court, then in reality the substantive provision of s. 57(2)
will be denuded of its full effect for all practical
purposes. Moreover, that would be giving effect to the
provisions of the Rent Control Act of 1958 retrospectively
though s. 57(2) states in clear terms that all suits and
proceedings pending at the commencement of the new Act will
be dealt with in accordance with provisions of the old Act.
The correct approach is to read the first proviso
harmoniusly with the substantive provision contained in s.
57(2).
Per Sarkar, J. The expression "shall have regard to the
provisions of the new Act" in s. 57(2) of the Act of 1958
gives to all the provisions of the Act of 1958 a
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retrospective operation and not to, some of those
provisions.
Those words do not mean that the intention was that some of
the provisions of the new Act only were to be applied and
they cannot be given that meaning because otherwise the
effect of the proviso would be to wipe out largely the first
part of the sub-section.
The words "suits and other proceedings" in sub-s. (2) of
s.57 of the Act of 1958 include appeals and revision cases.
Hari Shankar v. Rao Giridhari Lal Choudhary [1962] Supp. 1
S.C.R. 933, Pooran Chand v. Motilal, [1963] Supp. 2 S.C.R.
906 Lala Beni’ Ram v. Kundan Lal, (1899) L.R. 26 I.A. 58,
Mukesh Chand v. Jamboo Parshad, (1963) LXV P.L.R. 285, Shri
Kishore Aggarwal v. Satya Dev, (1959) LXI P.L.R. 574, Jhabar
Mal Chokhani v. Jinendra Parshad (1963) LXV’ P.L.R. 469,
Ryots of Garbandho v. Zamindar of Parlakimedi (1943) L.R. 70
I.A. 129, Mysore States Electricity Board v. The Bangalore
Woollen Cotton & Silk Mills Ltd. [1963] Supp. 2 S.C.R. 127,
Bulaqui Das v. Ram
42-2 S. C. India/64.
650
Saran, (1960) LXIII P.L.R. 231, Jiva Bhai Purshottam v.
Chhagan Karson, [1962] 1 S.C.R. 568, Bimal Parshad Jain v.
Niadarmal, (1960) LXll P.L.R. 664 and Man Mohan Lal v. B. D.
Gupta, (1962) LXIV P.L.R. 51, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 392 of 1963.
Appeal by special leave from the judgment and order dated
December 13, 1962, of the Punjab High Court (Circuit Bench
at Delhi) in Civil Revision No. 427-D of 1957.
Bishan Narain, O. C. Mathur, Ravinder Narain and
J.B.Dadachanji for the appellants.
A.V. Viswanatha Sastri and K. K. Jain, for respondent 1.
S. N. Andley, for respondent No. 2.
August 29, 1963. The judgment of S. K. Das, Acting C.J.
and M. Hidayatullah, J. was delivered by S.K. Das Acting
C.J. Sarkar J. delivered a dessenting opinion.
S. K. DAS, Acting Chief Justice.--With much regret, we
have come to a conclusion different from that of our learned
brother Sarkar, J. as respects the true scope and effect of
S. 57 of the Delhi Rent Control Act, 1958, hereinafter
referred to as the Control Act of 1958. The Control Act of
1958 repeals the Delhi and Ajmer Rent Control Act, 1952,
hereinafter called the Control Act of 1952, in so far as
that Act was applicable to the Union territory of Delhi, but
contains certain savings in respect of "suits and
proceedings" pending at the commencement of the Control Act
of 1958. To these savings we shall advert later.
The facts giving rise to the appeal have been stated fully
in the judgment of Sarkar, J. and we need not restate the
facts. The respondent, Pratap Chand, relied on cl. (c),
sub-cl. (i), of the proviso to S. 13(l) of the Control Act
of 1952 in support of his claim for eviction of the
appellant from a room, being room no. 6 in Pratap Buildings
situate in Connaught Circus, New Delhi. Sub-s. (1) of S. 13
of the Control Act of 1952 states that notwithstanding
anything to the contrary contained in any other law or any
contract, no decree or order for the recovery of possession
of any premises shall be passed by any Court in favour of
the landlord against any tenant (including a tenant whole
tenancy is terminated); the proviso creates certain excep-
651
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tions and states that nothing in sub-s. (1) shall apply to
any suit or other proceeding for such recovery of possession
if the case comes within the exceptions mentioned in the
proviso. One of the exceptions is mentioned in cf. (c),
sub-cl. (i), of the proviso. That exception relates to a
case where the tenant without obtaining the consent of the
landlord has before the commencement of the Control Act of
1952 sub-let, assigned or otherwise parted with the posses-
sion of the whole or any part of the premises. The princi-
pal question for decision in the appeal is whether the res-
pondent-landlord is entitled to rely on the exception pro-
vided by cl. (c), sub-cl. (i), of the proviso to sub-s. (1)
of s. 13 of the Control Act of 1952.
The learned trial judge by his Judgment dated June 11, 1956
gave a decree in favour of the respondent-landlord. One of
the questions raised before the learned trial judge was
whether the respondent-landlord had acquiesced in the sub-
letting in favour of the appellant. The learned trial Judge
decided against the appellant’ on the question of
acquiescence. There was then an appeal which was heard by
the learned Additional Senior Subordinate Judge of Delhi.
The learned Subordinate Judge found.... (1) that the sub-
letting had commenced not later than November, 1950, and (2)
that thereafter the respondent-landlord continued to receive
rent with full knowledge of the subletting. On these
findings he held that the respondentlandlord was not
entitled to avail himself of the exception stated in cl.
(c), sub-cl. (i), of the proviso to sub-s. (1) of s. 13 of
the Control Act of 1952. The learned Subordinate judge gave
his judgment on June 11, 1957. It has to be noted that
these judgments were given prior to the coming into force of
the Control Act of 1958. That Act came into force on
February 9, 1959. On August 26, 1957 the respondent-
landlord moved the High Court of Punjab in revision under s.
35 of the Control Act of 1952. When the revision was
pending in the High Court, the Control Act of 1958 came into
force. The High Court held that there was no evidence to
justify the finding of the learned Subordinate Judge that
the respondent-landlord had acquiesced in the sub-letting of
the room in favour of the appellant, and the case being one
where there is no evidence to justify a finding, it was open
to the High Court
652
to interfere in revision. The question of the true scope
and effect of s. 57 of the Control Act of 1958 was agitated
before the High Court and the High Court held that by reason
of the provisions of sub-s. (2) of s. 57 of the Control Act
of 1958, the revision before it had to be disposed of in
accordance with the provisions of the Control Act of 1952.
Accordingly, the High Court allowed the petition in revision
and restored the decree for possession made by the trial
court. The appellant then moved this court for special
leave and having obtained such leave has preferred the
present appeal from the judgment and order of the High Court
dated December 13, 1962.
We are in complete agreement with the conclusions reached by
our learned brother, Sarkar, J. in respect of the following
questions:
(1) whether the High Court was competent on
an application in revision to set aside the
finding of the lower appellate court on the
question of acquiescence ;
(2) whether the High Court was right in its
view that there was no evidence in the case to
support the finding of the learned Subordinate
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Judge on the question of acquiescence ; and
(3) whether the appeal before the learned
Subordinate fudge was maintainable in the
absence of an appeal by the Automobile
Association of Upper India.
On the conclusions reached on the aforesaid three questions,
the respondent-landlord will be entitled to succeed, unless
s. 57 of the Control Act of 1958 stands in his way. If the
provisions of the Control Act of 1958 apply, then sub-s. (1)
of s. 14 of the Control Act of 1958 will stand in the way of
the respondent-landlord, because the sub-letting in the
present case did not take place on or after June 9, 1952 and
will not therefore come within the exception provided in cl.
(b) of the proviso to sub-s. (1) of s. 14 of the Control Act
of 1958. Therefore, the narrow question before us is.......
is the present case governed by cl. (c). sub-cl. (i), of the
proviso to sub-s. (1) of s. 13 of the Control Act of 1952 or
is it governed by the provisions of the Control Act of 1958?
The answer to this question depends
653
on the true scope and effect of s. 57 of the Control Act of
1958.
We now proceed to read s. 57 of the Control Act of 1958.
That section is in these terms:
"57. (1) The Delhi and Ajmer Rent Control Act,
1952, in so far as it is applicable to the
Union territory of Delhi, is hereby repealed.
(2)Notwithstanding such repeal, all suits and
other proceedings under the said Act pending,
at the commencement of this Act, before any
court or other authority shall be continued
and disposed of in accordance with the
provisions of the said Act, as if the said Act
had continued in force and this Act had not
been passed :
Provided that in any such suit or proceeding
for the fixation of standard rent or for the
eviction of a tenant from any premises to
which section 54 does not apply, the court or
other authority shall have regard to the
provisions of this Act:
Provided further that the provisions for
appeal under the said Act shall continue in
force in respect of suits and proceedings
disposed of thereunder."
Two questions arise out of s. 57. It is clear beyond
dispute that had sub-s. (2) of s. 57 stood by itself, then
the present case would be governed by the provisions of the
Control Act of 1952, assuming that an application in
revision is a ‘proceeding’ within the meaning of the sub-
section. There are however two provisos to sub-s. (2) of s.
57. It is the interpretation of these two provisos which
has caused much difficulty in the present case. The first
question is, what is the true scope and effect of the first
proviso, with particular reference to the expression "shall
have regard to the provisions of this Act" occurring
therein? The second question is.... does an application in
revision come within the expression "suits and proceedings"
occurring in sub-s. (2) by reason of the second proviso
which makes a special provision for appeals? If, however,
we decide against the appellant on the first question and
hold that the application in revision, assuming it to be a
proceeding within the meaning of sub-s. (2), must be
disposed of in accordance with the provisions of the Control
Act of 1952, then
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654
the second question need not be decided by us in the
present case.
Therefore, we proceed to deal with the first question the
answer to which will be decisive of the appeal.
S. 57 of the Control Act of 1958 has been the subject of
several decisions in the Punjab High Court. We shall refer
to these decisions at a later stage. We prefer first to
consider the question on general principles of construction
having regard to the words used in the section.
But before we do so, a brief reference may be made to the
general scheme of the two Control Acts. Chapter 11 of the
Control Act of 1952 dealt with standard rent and also
contained provisions relating to other charges by the
landlord. The dominant object was to prevent payment of
rent in excess of standard rent and unlawful charges made by
the landlord. Chapter III dealt with control of eviction of
tenants and in this chapter occurred s. 13 to which we have
already made a reference. Chapter IV dealt with hotels and
lodging houses and as we are not concerned with hotels and
lodging houses, no reference need be made to the provisions
in this chapter. Chapter V dealt with jurisdiction of
Courts, Appeals, Review and Revision and Chapter VI dealt
with miscellaneous provisions. The point to be noticed with
regard to the provisions in chapter V is that the Control
Act of 1952 conferred power and Jurisdiction on ordinary
civil courts with the usual right of appeal from the first
court as in other civil proceedings and a right to move the
High Court in revision from the appellate judgment, in
respect of suits for recovery of possession of all premises
as defined in the Act, which definition excluded rooms in a
hotel or lodging house. With regard to hotels and lodging
houses, jurisdiction was conferred on a Controller to be
appointed by the Central Government.
The Control Act of 1958 made a radical change in respect of
many matters. So far as eviction of tenants is concerned, a
matter with which we are concerned in the present appeal,
jurisdiction was conferred on the Controller to be appointed
under s. 35 to order recovery of possession of the premises
on one or more of the grounds mentioned in the proviso to s.
14 of the Control Act of 1958. S. 16 of the Control Act of
1958 put certain restrictions on sub-
655
letting and one of these restrictions was that no premises
which had been sub-let either in whole or in part on or
after June 9, 1952 without obtaining the consent in writing
of the landlord should be deemed to have been lawfully sub-
let ; but where at any time before June 9, 1952 a tenant had
sub-let the whole or any part of the premises and the sub-
tenant was at the commencement of the Act in occupation of
such premises, then notwithstanding that the consent of the
landlord was not obtained for such sub-letting, the premises
would be deemed to have been lawfully sublet. S. 17
required the sub-tenant to give notice to the landlord and
s. 18 provided that in certain circumstances the sub-tenant
was to be treated as the tenant. With the details of these
provisions we are not concerned in the present case except
to point out that the Control Act of 1958 made radical
changes in the matter of eviction of tenants on the ground
of sub-letting. In the matter of sub-letting the relevant
date was taken as June 9, 1952 the date on which the Control
Act of 1952 came into force, and a distinction was made
between sub-letting before that date and sub-letting after
that date. A subletting before June 9, 1952 was treated as
lawful sub-letting if the sub-tenant was in occupation of
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the premises at the commencement of the Control Act of 1958;
but a sub-letting after June 9, 1952 without the previous
consent in writing of the landlord was treated as unlawful
for the purposes of the Control Act of 1958.
Let us now consider s. 57 of the Control Act of 1958 against
the background of the scheme of the two Control Acts, as
stated above. The first sub-section of s. 57 repeals the
Control Act of 1952 in so far as it is applicable to the
Union territory of Delhi. If the repeal stood by itself the
provisions of the General Clauses Act (X of 1897) would have
applied with regard to the effect of the repeal and the
repeal would not affect the previous operation of any
enactment repealed or anything duly done or suffered
thereunder or affect any right, privilege, obligation or
liability acquired, accrued or incurred under any enactment
so repealed. The provisions of the General Clauses Act will
not, however, apply where a different intention appears from
the repealing enactment. Such an intention is clear from
sub-s. (2) of s. 57 which contains the saving clause.
656
It states in express terms that notwithstanding the repeal
of the Control Act of 1952, all suits and proceedings under
the Control Act of 1952 pending before any court or other
authority at the commencement of the Control Act of 1958,
shall be continued and disposed of in accordance with the
provisions of the Control Act of 1952, as if the Control Act
of 1952 had continued in force and the Control Act of 1958
had not been passed. Nothing can be more emphatic in the
matter of a saving clause than what is contained in sub-s.
(2) of s. 57. We had said earlier that had sub-s. (2) of s.
57 stood by itself without the provisos, then the
incontestable position would have been that the present case
would be governed by the provisions of the Control Act of
1952. The question before us is, does the first proviso to
sub-s. (2) make a change in the position and if so, to what
extent? The first proviso states inter alia that in the
matter of eviction of a tenant from any premises to which s.
54 does not apply, the court or other authority shall have
regard to the provisions of the Control Act of 1958. S. 54
need not be considered by us as it merely saves the
operation of certain enactments which do not apply to
premises under our consideration. What is the meaning of
the expression "shall have regard to the provisions of this
Act" (meaning the Control Act of 1958) ? Does it mean that
the proviso takes away what is given by sub-s. (2), except
in the matter of jurisdiction of the civil court to deal
with an eviction matter which was pending before the Control
Act of 1958 came into force? We are unable to agree that
such is the meaning of the first provisio. We think that the
first proviso must be read harmoniously with the substantive
provision contained in sub-s. (2) and the only way of
harmonising the two is to accept the view which the
Punjab High Court has accepted, namely, that the words
"shall have regard to the provisions of this Act" merely
mean that "where the new Act has slightly modified or
clarified the previous provisions, these modifications and
clarifications should be applied". We see no other way of
harmonising sub-s. (2) with the first proviso thereto.
A similar expression occurring in s. 49 of the Electricity
(Supply) Act (LIV of 1948) was considered by this
657
court in the Mysore State Electricity Board v. The Bangalore
Woolen, Cotton and Silk Mills Ltd. and others etc.(1). This
Court referred to the decision of the Privy Council in Ryots
of Garbandro v. Zemindar of Parlakimedi(2) and expressed
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agreement with the view of the Privy Council that the
expression "have regard to" or "having regard to" has no
more definite or technical meaning that of ordinary usage,
and only requires that the provisions to which regard must
be had should be taken into ,consideration. If the
expression "have regard to" in the first proviso to sub-s.
(2) means that the provisions of the Control Act of 1958
shall apply to all such suits or proceedings as are referred
to in sub-s. (2) except in the matter of Jurisdiction of the
civil court, then in reality the substantive provision of
sub-s. (2) will be denuded of its full effect for all
practical purposes. We do not think that it would be right
to read the first proviso of sub-s. (2) in that way. It was
argued before us that the first proviso related only to two
matters, (a) fixation of standard rent and (b) eviction of a
tenant, and the intention was that in these two matters only
the provisions of the Control Act of 1958 would apply and
not in others. If that was the intention, nothing would
have been easier than to say in sub-s.
(2). ."Notwithstanding such repeal, all suits and other
proceedings under the said Act except those for fixation of
standard rent and eviction of a tenant etc." Subs-s. (2)
does not, however say so, and if the first proviso is to be
interpreted in the manner suggested by the appellant, the
provisions as to jurisdiction in the new Act would affect
the power of the civil court to pass a decree for eviction.
We now turn to the decisions of the Punjab High Court. In
Shri Krishna Aggarwal v. Satya Dev(3) it was held that the
first proviso to sub-s. (2) of s. 57 was directory in
character and not mandatory; therefore, the courts and
authorities concerned had a discretion conferred on them to
take into consideration the provisions of the new Act when
it was considered necessary in a proper case and in the
interest of justice. We do not wish, however, to base our
decision on these grounds. We think that the proper way of
reading sub-s. (2) and the first proviso thereto is
(1) [1963] Supp. 2 S.C.R. 127. (3) (1959) LXI P.I.R. 574.
(2) [1943] L.R. 70 I.A. 129.
658
to harmonise both in the best way possible. In Bulaqi Das
Madan Moha & others v. Ram Sarup(1) the view expressed was
that the proviso must have some meaning and force and the
proviso intended that where the old provisions had been
repeated with modifications, the old Act should be
interpreted in the light of the modifications so long as
they did not involve creating any new rights and
liabilities. A similar view was expressed by the same judge
in Shri Bimal Parshad Jain v. Shri Niadarmal(2). The
question was considered by a Division Bench in Shri Jhabar
Mal Chokhani v. Shri Jinendra Pershad(3). At pages 474 and
475 of the report Dulat, J. who spoke for the Bench said:
"It would thus appear that apart from Gosain,
the other learned judges of this court have
generally agreed that the proviso to s. 57,
sub-section (2), does not demand that a suit
for the eviction of a tenant filed under the
previous Act of 1952 must be governed entirely
by the provisions of the new Act but that, on
the other hand, the provisions applicable
continue to be the provisions of the old Act
with this addition that, where the new Act has
slightly modified or clarified the previous
provisions, those modifications and
clarifications should be applied, but, where
entirely new rights and new liabilities have
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been created, the new provisions must not be
allowed to override the provisions of the
previous Act, and nearly all the cases have
been decided on that basis."
We agree with the view expressed by Dulat, J. We also agree
with the High Court that if the first proviso to subs. (2)
of s. 57 is interpreted in the way contended for by the
appellant here, it would really be giving effect to the
provisions of the Control Act of 1958 retrospectively,
though sub-s. (2) of s. 57 states in clear terms that all
suits and proceedings pending at the commencement of the new
Act will be dealt in accordance with the provisions of the
old Act. This is really putting the same argument that the
proviso must be read harmoniously with the substantive
provision, in another way.
(1)(1960) LXII P.I.R. 231.
(2) (1960) LXII P.I.R. 664.
(3) (1963) LXV P.L.R. 469.
659
For the reasons given above we have come to the conclusion
that in the present case the respondent-landlord is entitled
to the benefit of cl. (c), sub-cl. (i), of the proviso to s.
13(1) of the Control Act of 1952 and the first proviso to
sub-s. (2) of s. 57 of the Control Act of 1958 does not
stand in his way. He is, therefore, entitled to succeed, as
the appellant has failed to make out any acquiescence by the
landlord to the sub-letting in question. Therefore, the
High Court rightly allowed the petition in revision and
restored the decree for possession made by the trial court.
The appeal fails and is dismissed with costs.
SARKAR J.-The respondent Pratap Chand, hereafter referred to
as the respondent, who was the owner of Pratap Buildings in
Connaught Circus, New Delhi had let a room in it, being room
No. 6, to the respondent, the Automobile Association of
Upper India, formerly known as the Automobile Association of
Northern India and hereafter referred to as the Association.
The appellant was a sub-tenant of the room under the
Association. These facts are not in dispute. On October 5,
1959, the respondent gave the Association a notice to quit
and on December 25, 1954 brought a suit against the
Association and the appellant for their enviction from the
room. It is out of this suit that the present appeal arises
and the question is--Is the appellant liable to be evicted?
Section 13 of the Delhi and Ajmer Rent Act, 1952 which had
come into force on June 9, 1952 and governed the case,
prohibited Courts from directing eviction of a tenant at the
suit of a landlord excepting in the cases mentioned in the
proviso to it. Clause (c) of this proviso said that a
decree for recovery of possession might be made where the
Court was satisfied that the "tenant without obtaining the
consent of the landlord has before the commencement of this
Act,-sublet, assigned or otherwise parted with the
possession of, the whole or any part of the premises". The
respondent relied on this provision in the Act and contended
that the Association had without his consent sub-let the
shop-room to the appellant and that he had come to konw of
this sub-letting about the end of May 1954. The Association
does not appear to have seriously contested the suit but the
appellant did. Both the Association and the appellant
admitted that the landlord had not
660
consented to the subletting before it started but the ap-
pellant contended that the respondent had full knowledge of
his occupation of the shop-room as a sub-tenant and had with
such knowledge accepted rent from the Association and
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thereby acquiesced in the subletting and was, therefore, not
entitled to eviction on the ground of subletting without the
landlord’s consent.
The learned trial judge by his judgment dated June 11, 1956
held that the respondent landlord had not acquiesced in the
subletting and in that view of the matter directed ejectment
of the Association and the appellant. The appellant then
went up in appeal under s. 34 of the Act to the Additional
Senior Sub-judge of Delhi who held that the sub-letting had
commenced not later than November 1950 and that the
respondent continued to receive rent with full knowledge of
the sub-letting. He, therefore, decided that the respondent
was not entitled to the decree for possession and allowed
the appeal, set aside the judgment of the trial Court and
dismissed the suit by his judgment dated June 11, 1957. On
August 26, 1957, the respondent moved the High Court of
Punjab in revision under s. 35 of the Act.
While the revision petition was pending in the High Court
the Delhi Rent Control Act 1958 came into force. It
repealed the Act of 1952 but made some of the provisions of
the repealed Act applicable to certain pending matters. One
of the questions in this appeal will be, which of the
provisions of the new Act are to apply to the pending cases.
In the revision petition, apart from challenging the finding
of acquiescence by the learned Senior Sub-Judge, the
respondent contended that the appellate judgment was in any
event wrong because the tenant, the Association, not having
appealed from the decree in ejectment made against it by the
learned trial judge, that decree stood and as a result of it
the tenancy was at an end and, therefore, the appellant sub-
tenant who only derived title through the tenant, had no
right to remain in possession of the demised room. The
appellant on his part in opposing the petition supported the
judgment of the Additional Senior SubJudge on the merits,
disputed that his rights were concluded by the failure of
the Association to appeal from the
661
judgment of the trial judge and further contended that in
view of the provisions of s. 57(2) of the Act of 1958 to
which I will later refer, the right of the landlord to
possession had to be decided by the provisions of that Act
and under s. 16 of this Act the respondent was not on the
facts found entitled to an order for ejectment on the ground
of sub-letting without his consent.
The various points raised in the case were not all heard
together in the High Court but the result of the several
hearings was a,, follows: that the fact that the tenant had
not appealed did not take away the sub-tenant’s right to
relief, that there was no evidence to justify the appellate
Court’s finding that the respondent had acquiesced in the
sub-letting by the Association to the appellant, that the
High Court could in revision set aside the judgment of the
lower appellate Court on this (,round and lastly, that s.
57(2) of the Act of 1958 (lid not require the High Court in
exercising its revisional powers to decide the landlord’s
right to possession by reference to the provisions of the
Act of 1958. In that view of the matter the High Court
allowed the petition for revision and restored the decree
for possession passed by the trial Court. This judgment of
the High Court is challenged in this appeal.
The first question is whether the High Court was competent
in the exercise of its revisional Jurisdiction to set aside
the finding of the lower appellate Court that the landlord
had acquiesced in the sub-letting. Section 35 of the Act of
1952 under which the revision petition had been filed gave
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jurisdiction to the High Court to satisfy itself that the
decision of the Court below had been "according to law". It
has been held by this Court in Harz Shan kar v. Rao Girdhari
Lal Choudhury(1) that a revision petition under s. 35 of the
Act of 1952 did not lie to interfere with a plain finding of
fact. Relying on this case learned counsel for the
appellant contended that the High Court had no jurisdiction
to interfere with the finding of acquiescence by the lower
appellate Court. In that case however there was evidence
which could have supported the finding arrived at by the
Court below the High Court and the High Court had only re-
assessed the value of that evidence. This, it was held, the
High Court could not do. Such a case is
(1) [1962] Supp. 1 S.C.R. 933.
662
very different from a case where, as in the present, the
High Court interferes with the finding on the ground that
there is no evidence to support it. If a Court had arrived
at a finding without any evidence to support it can be
legitimately said that it had not decided the case
"according to law" : see Pooran Chand v. Motilal(1). I may
also refer to Lala Beni Ram v. Kundan cited on behalf of the
respondent where it was observed that, acquiescence is not a
question of fact but of legal inference from the facts
found.
The question then arises whether the High Court was right in
its view that there was no evidence in the case to support
the finding of acquiescence. The evidence only showed that
the respondent knew that the appellant was in occupation of
the demised premises. I think that the High Court pointed
out, rightly that the fact that a landlord had knowledge
that a person other than a tenant was in possession did not
by itself always lead to an inference that the landlord had
knowledge that the person in possession was a sub-tenant.
The facts of the present case made such an inference more
difficult. They were as follows: The appellant had been in
possession of the room from sometime in 1949 till November
1950 along with the Association. All this time he was
publishing a magazine called the All India Motorist which
was the official organ of the Association. This he was
doing under an agreement with the Association which provided
that "office accommodation for the staff of the A.I.
Motorist to be provided by the Association in 6, Pratap
Buildings". He was at one time the General Secretary of the
Association and constantly on the premises doing also his
own business there,, In November 1950 the Association took
another premises as the demised room was found too small for
its expanding activities. From November 1950, the appellant
remained in sole possession of the premises carrying on his
businesses there as previously, including the business of
publishing the aforesaid official organ of. the Association.
In may 1954, the agreement between the Association and the
appellant for the printing and publication of the magazine
was brought to an end and the Association started its own
magazine. Since
(1) [1963] Supp. 2 S.C.R. 906.
(2) [1899] L.R. 26 I.A. 58.
663
then the appellant alone has been using the room for his own
purposes.
I do not think that these facts establish that the res-
pondent had any reason to think that from November 1950,
when the sub-tenancy commenced, the appellant had been in
possession as a sub-tenant for he had been using the room
for the work of tile Association. Only since May 1954, the
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appellant occupied the room solely for his own purposes.
The respondent might well, therefore, have thought that the
occupation of the appellant prior to 1954 was really for the
Association. Since 1954 however the respondent had not
accepted any rent. I am unable in this state of the
evidence to hold that the view that the High Court took was
erroneous. I do not think that the case of Mukesh Chand v.
lamboo Parshad(1) to which learned counsel for the appellant
referred assists him on this point. There it was held that
knowledge of possession was on the facts of the case
evidence of knowledge of possession under a licence. It is
not necessary to pronounce on the correctness of that
decision for we are concerned with a different question,
namely whether knowledge of possession is evidence of
knowledge of possession under a contract of sub-tenancy. A
point was raised at the bar that even if acquiescence had
been proved that would not have affected the landlord’s
statutory right to recover possession on proof of a sub-
letting without his consent. I do not think it necessary to
deal with that question in the present case as no
acquiescence was proved.
The next question is as to the rights of the appellant in
the absence of an appeal by the Association from the
decision of the trial Court. This question does not present
any real difficulty. The suit bad been filed both against
the tenant and the sub-tenant, being respectively the Asso-
ciation and the appellant. One decree had been passed by
the trial judge against both. The appellant had his own
right to appeal from that decree. That right could not be
affected by the Association’s decision not to file an
appeal. There was one decree and, therefore, the appellant
was entitled to have it set aside even though thereby the
Association would also be freed from the decree. He could
say that decree was wrong and should be set
(1) (1963) LXV P.L.R. 285.
664
aside as it was passed on the erroneous finding that the
respondent had not acquiesced in the sub-letting by the
Association to him. He could challenge that decree on any
ground available. The lower appellate Court was, therefore,
quite competent in the appeal by the appellant from the
joint decree in ejectment against him and the Association,
to give him whatever relief he was found entitled to, even
though the Association had filed no appeal.
I come now to the last and the more difficult of the points
argued in this case. That point turns on the interpretation
of s. 57 of the Act of 1958 the terms of which are as
follows:
S. 57. (1) The Delhi and Ajmer Rent Control
Act, 1952, in so far as it is applicable to
the Union territory of Delhi, is hereby
repealed.
(2) Notwithstanding such repeal, all suits
and other proceedings under the said Act
pending, at the commencement of this Act,
before any court or other authority shall be
continued and disposed of in accordance with
the provisions of the said Act, as if the said
Act had continued in force and this Act had
not been passed:
Provided that in any such suit or proceeding
for the fixation of standard rent or for the
eviction of a tenant from any premises to
which section 54 does not apply, the court or
other authority shall have regard to the
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provisions of this Act:
Provided further that the provisions for
appeal under the said Act shall continue in
force in respect of suits and proceedings
disposed of thereunder.
It is said by the appellant that the first proviso to subs.
(2) of s. 57 of the Act of 1958 required the High Court to
decide the claim for ejectment in the revision case pending
before it in accordance with the provisions of that Act and
as under s. 16 of the Act no decree in ejectment could be
passed against the Association or the appellant on the facts
of the present case, the High Court was wrong in passing
such a decree.
The respondent’s answer to this contention is two fold. It
is first said that the proviso only required a Court to have
regard to the provisions of this Act and that meant that
only those provisions of the new Act were to be
665
applied which were clarifications and modifications of the
old but none other. If this is so, no doubt the new Act
could be of no assistance to the appellant. This contention
is based on judgment of the Punjab High Court but I am
unable to accept it as correct.
The earliest case before the High Court was Shri Krishna
Aggurwal v. Satya Dev(1). There it was held that the first
proviso only gave a discretion to the Court to apply the
provisions of the new Act when the interests of justice
required it. This view has not however been accepted in the
later cases and has been expressly given up in the last case
which was Jhabar Mal Chokhani v. Jinendra Parshad(2). As it
has not been pressed before us, it is not necessary to
discuss it further. Plainly, an interpretation which makes
the substantive rights of parties depend on the discretion
of court is impossible of acceptance.
The reasons which have been given to support the contention
that the first proviso only made the provisions of the new
Act which were modifications and clarifications of the
provisions of the old Act are various but none of them
appears to me to be well founded. First, it is said that
the words "have regard to" support that view and reliance is
placed on Ryats of Garbandho v. Zemindar of Parliakimedi(3)
for this purpose : see Jhabar Mal’s case(2). In that case
the Judicial Committee held that the words meant that the
provisions referred to must be taken into consideration but
it was not obligatory to follow them.
Apart from the fact that the view expressed by the Judicial
Committee turned on the statute before it as it was careful
to observe by saying "any general interpretation of such a
phrase is dangerous and unnecessary", I am unable to see how
the decision supports the view for which it was cited in
Jhabar Mal’s case(2). In that case the words were given the
meaning that compliance with the provisions indicated was
not obligatory, a meaning which is not sought to be put on
them in the present case by any one, for the view that the
first proviso gives a discretion to the Court has been
discarded. Surely the Parlakimedi case(3) is no authority
for the view that the words "shall have regard to the
provisions of this Act" mean that it
(1) [1959] LXI. P.L.R. 574. (2) [1963] LXV P.L.R.
469.
(3)[1943] L.R. 70 I.A. 129.
43-- 2 SC India/64
666
shall be obligatory to apply only such of the provisions of
the new Act which are modifications or clarifications of the
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earlier Act, and this is the meaning which is canvassed by
the respondent. The Judicial Committee were indeed not
concerned with the provisions of two statutes one of which
had been repealed, as we are. The two cases are wholly
different. The decision of this Court in Mysore State
Electricity Board v. The Bangalore Woollen Cotton and Silk
Mills Ltd.(1) in which the same words fell to be considered,
is of even less assistance.
Another reason given is that the rule is that no more
retrospective operation is to be given to a statute than its
language renders necessary : see Shri Krishna’s case (2) . A
somewhat similar view was expressed in Bulaqui Das v. Ram
Sarup(3) where it was said that the proviso should be read
making only those provisions of the new Act applicable which
are modifications of the old as that would cause least
disturbance of the vested rights. Again I am unable to
agree. The words "shall have regard to the provisions of
this Act" do give these provisions a retrospective operation
and there is nothing in them to limit the scope of such
operation to some of those provisions. The rule that a
statute is not presumed to have retrospective operation is
no justification for astuteness in limiting the scope of
that operation where the words do not indicate any limit. I
am wholly unable to agree that the words "shall have regard
to the provisions of this Act" at all provide any limit.
They would not indicate any limit if no question of
retrospective operation arose (see Parlakimedi case) (4) and
the natural meaning of the words is not changed when they
are used in a clause for giving retrospective operation to a
statute. I may add that this reasoning is based only on
those words.
The last reasoning on which the respondent founded his
contention was that the proviso had to be construed
harmoniously with the first part of sub-s. (2) and not so as
to destroy it altogether: see Shri Krishna’s case(2) and
Jhabar Mal’s case(5). There is no doubt about this
principle
(1) [1963]Supp. 2 S.C.R. 127. (2) [1959] LXI P.L.R. 574.
(3) [1960] LXII P.L.R. 231.
(4) [1943] L.R. 70 I.A. 129.
(5) [1963] LXV P.L.R. 469.
667
but it is applicable when there is a conflict between two
parts of a statute, a conflict which could not have been
intended. But where, as in the present case-and as to this
I feel no doubt at all-the proviso is an exception to the
part to which it is attached there is no conflict for it was
intended to reduce the field of operation of that part by
the proviso. There is no occasion in such a case to feel
perturbed if the plain language of the proviso has the
effect of cutting down the scope of operation of a large
part of the provision to which it is attached, for such was
the intention of the legislature. There is of course no
sounder principle of interpretation of statutes than to give
plain language its plain meaning.
Suppose the words in the proviso were "shall apply the
provisions of this Act". Then those provisions would have
to be applied even though the result was the wiping out of
the larger portion of the first part of the sub-section, The
words however are "shall have regard to the provisions of
this Act". Whatever they mean, they do not mean that the
intention was that some of the provisions of the new Act
only were to be applied and they cannot be given that
meaning because otherwise the effect of the proviso would be
to largely wipe out the first part of the subsection. There
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is no Justification for twisting the language of the proviso
in a zealous quest for harmony. The expressed intention
must be given effect to and no question of creating any
harmony arises. Since those words do not confer a
discretionary power, they must be read as imposing
obligatory duties.
I do not also think that if the provisions of the new Act
are applied to pending proceedings, there would be a
tremendous disharmony, a disharmony which could not have
been intended. Under the first part of the sub-section all
pending suits and proceedings are to be disposed of under
the old Act. Under the proviso in some of them the court or
authority before whom they are pending are to have regard to
the provisions of the new Act. Now, the courts and
authorities under the two Acts are different. The first
part of the sub-section requires the courts and authorities
under the old Act to dispose of the matters pending before
them and the proviso does not touch this portion of that
part, for it requires the courts and autho-
668
rities under the old Act to dispose of some of the pending
matters by applying some of the provisions of the new Act.
Again the proviso leaves the scope of the first part of the
sub-section wholly unaffected as regards pending suits and
proceedings other than those for eviction of a tenant or
fixation of standard rent. These would include proceedings
by tenants for being put back into possession and those
between hotels and lodging house keepers and their boarders.
It may be that these would be fewer than the proceedings for
ejectment of tenants or standardisation of rents, but that
would be irrelevant. What I wish now to observe is that if
the proviso is interpreted as making it obligatory to apply
all the provisions of the new Act to pending proceedings.
other than those I have indicated above, the result would
not be to wipe. out the first part of the sub-section
altogether, a good part would still remain operative. I do
not conceive it to be the duty of a court interpreting a
statute to give words a meaning which they do not plainly
bear because otherwise some or even a large portion of
another part of the statute would become inoperative. This
would be more so where one part was intended admittedly to
cut down the effect of another. One must not further forget
that in interpreting a beneficent Statute the effort should
always be in cases of doubt to put that interpretation which
confers the larger benefit on those intended to be benefited
: Jiva Bhai Purshottam v. Chhagan Karson(1). I do not
however wish it to be understood that I feel a doubt that
the words "shall have regard to the provisions of this Act"
may mean those provisions only of the new Act which are
modifications or clarifications of the provisions in the old
Act.
I have now discussed all the reasons advanced in support of
the respondcnt’s contention and am unable to accept it for
the reasons earlier mentioned. I think the proviso plainly
makes it obligatory to apply the provisions of the new Act
in the decision of the pending suits and proceedings for
ejectment of tenants by the courts before whom they were
pending under the old Act.
The respondent then said that the first proviso to s. 57(2)
of the Act of 1958 did not in any event make any part of the
Act of 1958 applicable to pending revision cases
(1)[1962] 1 S.C.R. 568, 573.
669
for that proviso only referred to suits or proceedings and a
revision case was neither. This view receives support from
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Shri Krishna’s case(1) and Man Mohan Lal v. B. D. Gupta(2)
but a contrary view was taken in Bimal Parshad lain v.
Niadarmal(3). In fact the two earlier mentioned judgments
in the High Court held that the words "suit or proceeding"
in the first proviso did not include either an appeal or a
revision case.
This view is based on the terms of the second proviso to
sub-s. (2) of s. 57 which I have earlier set out. It was
said that by dealing specifically with appeals in that pro-
viso the legislature has indicated clearly that it did not
intend an appeal to be considered as a suit or proceeding in
that sub-section. It was also said that if a suit or
proceeding included an appeal then the second proviso would
become wholly redundant for what is provided there would
then come within the rest of sub-s. (2).
This reasoning seems to me to be based on a misreading of
the second proviso which states that "the provisions for
appeal under the said Act shall continue in force in respect
of suits and proceedings disposed of thereunder". Now what
are "provisions for appeal"? They of course mean the
provisions which set out how or when and in what court an
appeal may be filed and so on, that is, provisions dealing
with the institution of appeals, their competence, their
procedure and the courts where they may be filed and so on.
The words do not refer to any provision of the old Act
dealing with the merits of an appeal. The old Act does not
contain, as indeed no Act does, any specific provision for
the decision of the merits of an appeal as distinguished
from the decision of the same case at the trial stage. The
provisions for deciding the merits are always the same in
both cases. The words "provisions for appeal therefore
cannot possibly refer to provisions dealing with the merits
of a case. The word "appeal" had to be used in the second
proviso as it was concerned with appeals from suits or
proceedings mentioned in it, namely, those which had been
disposed of under the old Act. That word was not used to
indicate that suits or proceedings mentioned in the rest of
the sub-section were not to in-
(1) [1959] LXI P.L.R. 574.
(2) [1962] LXIV P.L.R. 51.
(3) [1960] LMI P.L.R. 664.
670
clude an appeal. Furthermore the second proviso would not
be redundant if the words "suit or proceeding" in the rest
of the sub-section were understood as including an appeal,
for it states under which law the competence of appeals and
revision petitions from cases disposed of under the old Act
are to be decided while the rest of the subsection does not
deal with such matters but deals with the courts where
pending matters are to be heard and the law by which they
are to be decided and disposed of. I may also point out
that under the two Acts Jurisdiction is conferred on
different authorities. There is, therefore, nothing In the
second proviso which would indicate that the words "suit or
proceeding" in the first part of sub-s. (2) or in the first
proviso were not intended to include an appeal or a revision
case.
Another reason given was that a revision could not be a suit
because it was not a rehearing. Even if this is so, it
would not be an answer to the contention that the word
"proceeding" would include an appeal or a revision case.
Furthermore, it is conceded that an appeal is a rehearing
and would be included within the word suit if the second
proviso was not there. I have already shown why the second
proviso does not prevent an appeal from being included in
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the words "suit or proceeding" in the rest of the sub-
section. Now if an appeal is to be held a suit and as no
distinction can be made between an appeal and a revision
case, it would follow that the word "suit" might on this
reasoning include a revision case. It is indeed admitted
that the word "appeal" in the second proviso includes a
revision case. Obviously any other view would be untenable
for no intelligible reason can be found why a revision case
should be treated differently from an appeal. For myself
however I would say that as a matter of plain English there
is no difficulty in including within the word "proceeding"
an appeal or a revision case. I see no reason why the
legislature should have thought of applying one law for
cases which were pending at the original stage when the new
Act came into force and another law for the appeals or
revision cases from original trial which were pending then.
A third reason given why suits or proceeding in the first
part of sub s. (2) and the first proviso should not
671
include an appeal or a revision case is that might
necessitate a remand for further evidence. This is admit-
tedly an argument of convenience and hence not of great
strength. But I am unable to see why a remand would be
necessary. Ex-hypothesi the case had been started under the
old Act and all evidence that should have been led had
already been led. A remand for taking fresh evidence could
only be necessary if an amendment of the pleadings was
allowed in view of the fresh rights created by the new Act.
So far as a new right is given to the landlord he can always
file a fresh suit. The taking of the new evidence which it
is said would be an inconvenience cannot therefore in any
event be avoided.
If the words "suit or proceeding" in the first part of sub-
s. (2) or the first proviso do not include an appeal or a
revision case the result would be somewhat anomalous. It is
clear that s. 6 of the General Clauses Act keeping alive
certain rights under repealed Act cannot be availed of to
keep alive rights under the 1952 Act for sub-s. (2) of s. 57
of the 1958 Act specifically states which of the provisions
of the 1952 Act are to remain available in spite of the
repeal of that Act. On the respondent’s contention nothing
in the first part of sub-s. (2) or the first proviso to it
would make the old Act applicable to pending appeals or one
that came to be filed after the coming into force of the new
Act. One is then left wondering by which law the appeals
and revision cases which are pending when the new Act comes
into force or are subsequently filed under the second pro-
viso are to be governed. It clearly could not have been
intended that the pending appeals or revision cases were not
to be proceeded with any more. Therefore, it seems to me
that it would be an unnatural construction of the words
"suit or proceeding" in the first part of sub-s. (2) or the
first proviso to it to say that they do not include appeals
or revision cases. In my view the High Court was under s.
57(2) of the 1958 Act bound to apply the provision of that
Act in deciding the merits of the revision case pending
before it when the new Act came into force.
The next question is, How were the merits of the pending
revision case affected by the new Act? The appellant
contends that s. 16 of this Act prevents a decree in
ejectment being passed against him by the High Court in
672
the revision case. This is fallacious. Section 16(1) no
doubt says that certain sub-lettings would be deemed to be
lawful sub-lettings. It is also true that the sub-letting
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to the appellant was of the kind mentioned in s. 16(1). The
effect however of making sub-lettings lawful under s. 16(l)
is to prevent an cjectment being ordered against the sub-
tenant when the tenancy of the intermediate tenant comes to
an end but this only in cases where the sub-tenant has
given. the prescribed notice: see ss. 17 and 18. The ap-
pellant cannot get the benefit of these provisions for he
had not given that notice. Section 16(l) does not otherwise
prevent the ejectment of a tenant or sub-tenant.
None the less however as the provisions of the new Act apply
to the pending revision case, the respondent has to show
that he is entitled to an order for ejectment under those
provisions. Now the only ground on which the respondent
claims ejectment is for sub-letting without his consent.
The circumstances under which ejectment can be decreed under
the new Act are set out in the proviso to s. 14. Under that
proviso a subletting on or after June 9, 1952 without the
consent of the landlord in writing may justify a decree for
possession but not any other kind of sub-letting. In the
present case on the facts found, the sub-letting to the
appellant was not of this kind for it took place in November
1950. A sub-letting which took place on that date even if
it was without the landlord’s consent would not justify an
order for possession against the tenant at the instance of
the landlord. No other provision in the new Act has been
pointed out under which for such subletting the landlord was
entitled to an order for possession. It follows that the
High Court was not entitled to pass a decree for possession
but should have dismissed the revision case. Whether the
landlord respondent is entitled to an order for possession
for any other reason under the new Act is not a question
that arises in this appeal and I express no opinion on it.
I would, therefore, allow the appeal.
ORDER BY COURT
In view of the majority judgment, the appeal stands
dismissed with costs.
673