Full Judgment Text
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PETITIONER:
MAHABIR PRASAD VERMA
Vs.
RESPONDENT:
DR. SURINDER KAUR
DATE OF JUDGMENT07/04/1982
BENCH:
SEN, AMARENDRA NATH (J)
BENCH:
SEN, AMARENDRA NATH (J)
PATHAK, R.S.
CITATION:
1982 AIR 1043 1982 SCR (3) 607
1982 SCC (2) 258 1982 SCALE (1)299
CITATOR INFO :
E 1991 SC2053 (16,18)
ACT:
Landlord and tenant-East Punjab Urban Land Restriction
Act, 1949-Section 13(2) (ii) (a)-Scope of-Sub-tenant induced
in a portion of the premises with the permission of
landlord-Whether such subletting became unlawful on
determination of tenancy-Tenant, if liable to be evicted
Evidence-Tape recorded evidence only corroborative in
nature.
HEADNOTE:
Section 13(2) (ii) (a) of the East Punjab Urban Land
Restriction Act 1949 provides that if a tenant has, after
the commencement of the Act, without the written consent of
the landlord sub-let the entire building or any portion
thereof the tenant shall be liable to be evicted on the
ground of such sub-lotting.
The Act was made applicable to the Union Territory of
Chandigarh from November 1972.
The respondent landlady filed a petition before the
Rent Controller alleging that The tenant had sub-let a
portion of the premises under his occupation in breach of
section 13(2) (ii) (a) of the Act and that therefore he was
liable to be evicted. The Rent Controller ordered his
eviction. The tenant’s appeal to tho Appellate Authority and
later revision petition to the High Court were l? dismissed
.
In the tenant’s special leave petition, this Court
directed the Rent Controller to record a finding whether the
tenant had sub-let any portion of the premises after April
1974. The Rent Controller found that a portion of the
premises was sub-let by the tenant in May 1974.
On the question (I) whether the existence of the sub-
tenant in the premises after the expiry of the contractual
tenancy necessarily rendered the sub-letting illegal and
furnished a ground for eviction within the meaning of
section 13(2) (ii) (a) of the Act (2) whether the sub-
letting by the tenant with the written consent of the land-
lady during the currency of the tenancy became unlawful and
illegal on the determination of the tenancy and furnished a
ground for eviction within the meaning of the section.
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608
Allowing the petition,
^
HELD: 1. There is no evidence on record to justify the
finding of the Rent Controller that the tenant had sub-let a
portion of the premises in May 1974. [623 E]
2.. The tenant has not sub-let any portion of premises
without the consent of the land-lady after the commencement
of the Act and therefore the landlady had no ground for
eviction of the tenant on the ground of sub-letting within
the meaning of the section. In the instant case the written
consent to sub-let a - portion of the premises as required
by the statute had been given by the landlady to the tenant
and it was in terms of that authority that the tenant had
inducted a sub-tenant in April 1974 when the contractual
tenancy was subsisting. Therefore the sub-letting did not
afford any ground for eviction of the tenant on the ground
of subletting. [626 F-H]
3. The crux of the matter is that if after the
commencement of the Act, the tenant has lawfully sub-let a
portion of the premises with the written consent of the
landlord, the sub-tenant becomes a lawful sub-tenant and
becomes a "tenant" within the meaning of the Act with the
tenant as his landlord and continues to enjoy all the
protection available to a tenant under the Act. The tenant
who inducts such sub-tenant is not entitled to evict him as
landlord of the subtenant except in accordance with the
provisions of the Act. [624 E-G]
4 The argument of the land-lady that on the expiry of
the month of April her consent had stood withdrawn is of no
consequence because in the instant case the tenant has sub-
let a portion of the premises in April 1974 when admittedly
the written consent of the land-lady was in existence The
continuance in possession of such sub-tenant in a portion
lawfully let out to him on the expiry of the month of April
did not amount to or have the effect of any fresh sub-
letting by the tenant at the end of April. A lawful sub-
letting on the basis of the provisions of the Act does not
become unlawful merely because the contractual tenancy of
the tenant comes to an end. [625 F-H]
5 (a). Tape-recorded conversation between the husband
of the landlady and the tenant on which the Rent Controller
had relied could only be corroborative evidence of
conversation deposed to by any of the parties. In the
absence of any such evidence the tape-recorded conversation
cannot be proper evidence and cannot be relied upon. [623 E-
F]
(b) That apart, the tape-recorded evidence indicated
that on the expiry of the term of the tenancy, the land-lady
had not merely accepted the rent but had manifested her
intention of continuing the tenancy notwithstanding the
expiry of the term. The evidence also showed that the
husband of the land-lady asked the tenant to induct suitable
persons as sub-tenants under him. [623 G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION . Civil Appeal NO. 1 830
of 1978.
609
From the Judgment and order dated the 19th September, A
1978 of the High Court of Punjab & Haryana at Chandigarh in
Civil Revision No. 1398 of 1978.
V.M. Tarkunde and H.K. Puri for the appellant.
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T.U. Mehta, N.D. Garg, Rajiv Garg and S.B. Bisaria for
the respondent.
The Judgment of the Court was delivered by
AMARENDRA NATH SEN, J. Whether on a proper construction
C of the terms of tenancy and the provisions of the East
Punjab Rent Restriction Act, 1949, the appellant is liable
to be evicted from the premises in his- occupation as
tenant, on the ground of wrongful sub-letting of the
premises, is the question which falls for consideration in
this appeal by special leave granted by this Court.
The appellant came into occupation of the shop-cum-flat
No. 48, Sector 3-C, Chandigarh on and from Ist of April,
1974 as a tenant under the respondent who happens to be the
owner of the said premises on terms and conditions contained
in the rent-note dated 2 4.1974. For the sake of convenience
we shall describe the appellant as the tenant and the
respondent as the landlady of the premises.
The landlady filed her present petition (R.A. No. 163
of 1977) in the Court of Rent Controller Chandigarh, under
S. 13 of the East Punjab Urban Rent Restriction Act, 1949
(hereinafter referred to as the Act) for the eviction of the
tenant on two grounds, namely, non-payment of rent and sub-
letting of the flat portion and Barsati portion of the
premises. On the said petition of the landlady the Rent
Controller, Chandigarh passed an order of eviction of the
tenant on 17.11.1977 only on the ground of sub-letting. The
other ground, namely non-payment of rent by the tenant, did
not S succeed.
Against the order of the Rent Controller, the tenant
filed an appeal under S. 15 of the Act before the Appellate
Authority. The Appellate Authority by its judgment dated
9.8.1978 dismissed the appeal of the tenant and upheld the
order of eviction passed by the Rent Controller.
610
Against the judgment and order of the appellate
authority, the tenant filed a revision petition under S. 15
of the Act before the High Court of Punjab and Haryana at
Chandigarh. The High Court by its judgment dated 19.9.78
dismissed the said petition. Aggrieved by the judgment and
order of the High Court, the tenant has filed this appeal
with special leave granted by this Court, challenging the
correctness of the decision ordering the eviction of the
tenant from the said premises on the ground of sub-letting.
Before we proceed to consider the arguments advanced
from the Bar, it will be convenient to set out the terms of
tenancy contained in the rent note dated 2.4.1974 and also
the relevant provisions of the Act.
The relevant terms contained in the rent note read as .
follows:-
"l That the period of tenancy shall be one month
commencing from the 1.4.1974 to 30.4.1974.
2. That rent hereby fixed shall be Rs. 450/- p m.
x x x x
x x x x
4. That the possession of the said premises has
already been received by the tenant from the
owner.
x x x x
x x x x
x x x x
8. That the tenant has a right to sub-let the flat
portion and Barsati portion of this said SCF above
mentioned.
x x x x
x x x x
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14. At the expiry of the tenancy the tenant shall
redeliver the vacant possession of the said
premises to the
611
owner in the original condition failing which he shall
be liable to pay the mesne profits."
The relevant provisions of the Act are contained in S.
13 of the Act, the material provisions of which may be
noted:
"13. (1) A tenant in possession of building or
rented land shall not be evicted therefrom in execution
of a decree passed before or after the commencement of
this Act or otherwise and whether before or after the
termination of the tenancy, except in accordance with
the provisions of this section, or in pursuance of an
order made under section 13 of the Punjab Urban Rent
Restriction Act, 1947, as subsequently amended.
(2) A landlord who seeks to evict his tenant shall
apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable
opportunity of showing cause against the applicant, is
satisfied-
(i) that the tenant has not paid or tendered the rent
due by him in respect of the building or rented
land within fifteen days after the expiry of the
time fixed in the agreement of tenancy with his
landlord or in the absence of any such agreement,
by the last day of the month next following that
for which the rent is payable;
Provided that if the tenant on the first
hearing of the application for ejectment after due
service pays or tenders the arrears of rent and
interest at six per cent per annum on such arrears
together with the cost of application assessed by
the Controller, the tenant shall be deemed to have
duly paid or tendered the rent within the time
aforesaid.
(ii) that the tenant has after the commencement of this
Act without the written consent of the landlord-
(a) transferred his right under the lease or sub-
let the
612
entire building or rented land or any portion
thereof; or
x x x x
x x x x
In the instant case, there is no dispute that the
tenant had sub-let the Flat portion and Barsati portion of
said premises to sub-tenants. There is, however, a dispute
as to when the sub-tenants were inducted by the tenant. As
no clear finding had been recorded in the judgment of the
Rent Controller or of the Appellate Authority or the High
Court as to when the subtenants were inducted, and as there
is no finding as to whether the tenant had sub-let any
portion after the month of April, 1974, this Court passed an
order on the 24th of November, 198 l remitting the following
issue to the Rent Controller, Chandigarh for a finding :-
"Whether any one or more of the sub-tenancies
alleged by the Landlady-respondent were created by the
tenant-appellant during the month of April, 1974 or it
was only thereafter that the sub-letting took place ?"
This Court while passing the said order, further directed
that the Rent Controller would permit the parties to lead
evidence on the point and would render his findings after
taking into consideration the evidence already on record and
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any additional evidence that might be led.
Pursuant to the said order passed by this Court, the
Rent Controller after taking further evidence had recorded
his finding on this issue. The finding of the Rent
Controller is that there was sub-letting of a small bed-room
in the flat portion and also of the Barsati portion by the
tenant also in the month of May. This finding of the Rent
Controller has been disputed before us by the tenant.
Mr. Tarkunde, learned counsel appearing on behalf of
the tenant, has submitted that in view of the express
authority given to the tenant as contained in cl. 8 of the
rent note to sub-let the flat portion and the Barsati
portion which portions had, in fact, been
613
sub let by the tenant, there can be no question of wrongful
and illegal sub letting by the tenant of the said portions,
as the sub-letting is with the written consent of the land-
lady; and the provisions contained in S. 13 (2) (ii) (a) can
have no application and there can be no ground or cause of
action for eviction of the tenant on the ground of sub-
letting within the meaning of the said provision. Mr.
Tarkunde has argued that the Act was made applicable to
Chandigarh from 4.11.1972 and the tenancy was created in
April, 1974 long after the act had come into operation in
Chandigarh and had become applicable to the premises in
question. lt is Mr. Tarkunde’s argument that in view of the
prohibition on sub-letting without the consent of the
landlord in writing contained in the Act, the landlady in
the instant case has in writing expressly authorised the
tenant to sub-let the flat portion and the Barsati portion
of the said promises, so that the tenant does not come
within the mischief of the said provision. Mr. Tarkunde
contends that it is not in dispute that the tenant had
sublet the flat portion and the Barsati portion of the
premises in terms of the authority given to the tenant in
writing and as the sub-letting has been done by the tenant
with the written consent of the landlady after the
commencement of the Act and of the portions the tenant was
authorised to sub-let, there can be no violation of the
provisions of S. 13 (2) (ii) (a) of the Act. It is the
contention of Mr. Tarkunde that as the subletting was done
by the tenant in terms of the written authority given by the
landlady to the tenant, the subletting can constitute no
ground for eviction of the tenant within the meaning of the
said section of the Act and there can be no order of
eviction of the tenant on the ground of subletting by the
tenant. Mr. Tarkunde has submitted that the High Court has
proceeded on the basis that the sub-tenants had continued in
occupation after the month of April, 1974, and as the terms
of contractual tenancy ended on the expiry of the month of
April, 1974, the continuance of sub-tenants inducted with
the written consent of the landlady after the month of
April, became unauthorised and illegal and resulted in
subletting without the written consent of the landlady and
as such the provision contained in S. 13 (2) (ii) (a) became
applicable and the tenant became liable to eviction on the
ground of wrongful subletting within the meaning of the said
provision. Mr. Tarkunde, in this connection, has commented
that the view taken by the Punjab and Haryana High Court is
that if the sub-tenants, though lawfully inducted? continue
to be in possession
614
after the expiry of the lease of the tenants, such sub-
letting becomes unlawful and furnishes a ground for eviction
of the tenant. In this connection, Mr. Tarkunde has referred
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to the following observations of the learned Judge in this
case :
"In Kartar Singh & Others v. Tarlok Singh & Others
Pandit, J. held that the permission given by the
landlord to the tenant to have sub-tenants during the
currency of the lease is of no avail after the
termination of the tenancy and if the sub-tenants
continue on the property even after the expiry of the
lease, the tenant was guilty of sub-letting without the
written permission of the landlord".
Mr. Tarkunde has submitted that this view of the High Court
on the basis of which the order for eviction has been upheld
is clearly erroneous. Drawing our attention to the relevant
provisions contained in S. 13 (2) (ii) (a) of the Act, Mr.
Tarkunde has submitted that the statute only forbids sub-
letting without the written consent of the landlord after
the commencement of the Act and by necessary implication the
statute permits sub-letting by the tenant with the written
consent of the landlord. Mr. Tarkunde contends that if the
sub-tenants are inducted by the tenant with the written
consent of the landlord, the sub-letting is authorised and
legal and the continuance of the sub-tenant thereafter
cannot be considered to be unlawful or illegal on the ground
that the tenancy of the tenant had come to end, as the sub-
tenants continue to enjoy possession in their own right as
sub-tenant and the tenant who has inducted the sub tenants
cannot and does not enjoy any power or authority of evicting
the sub-tenant except in due process of law. In this
connection Mr. Tarkunde has drawn our attention to the
definition of ’landlord’ and also of ’tenant’ as given in S.
2 (c) and (i) of the Act.
The definition of the landlord as given in S. 2 (c) is
as follows :
" ’landlord’ means any person for the time being
entitled to receive rent in respect of any building or
rented land whether on his own account or on behalf, or
for the benefit, of any other person, or administrator
for any other
615
person, and includes a tenant who sub-lets any building
or rented land in the manner hereinafter authorised,
and, every person from time to time deriving title
under a landlord".
The definition of tenant as mentioned in S. 2 (i)
reads:
" ’tenant’ means any person by whom or on whose
account rent is payable for a building or rented land
and includes a tenant continuing in possession after
the termination of the tenancy in his favour, but does
not include a person placed in occupation of a building
or rented land by its tenant, unless with the consent
in writing of the landlord, or a person to whom the
collection of rent or fees in a public market, car-
stand or slaughter-house or of rents for shops has been
farmed out or leased by a municipal town or notified
area committee".
Mr. Tarkunde argues that the definition of landlord clearly
indicated that a ’landlord’ within the meaning of the Act
includes a tenant who sub-lets with lawful authority and the
definition of ’tenant’ within the meaning of the Act also
includes a sub-tenant who has been lawfully inducted.
Referring to these definitions Mr. Tarkunde has submitted
that as soon as the tenant has lawfully sub-let the portions
to the sub-tenants the tenant in the instant case becomes a
’landlord’ within the meaning of the Act and the sub-tenant
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lawfully inducted becomes a tenant under him within the
meaning of this Act and the provisions of the Act are
applicable to them. Mr. Tarkunde argues that by virtue of
the aforesaid definitions, a tenant continues to be in
possession after the termination of the tenancy in his
favour, remains a tenant within the meaning of the Act and
continues to enjoy all the benefits of the Act. It is the
argument of Mr. Tarkunde that the sub-tenants lawfully
inducted must, therefore, be considered to be in lawful
possession under the tenant as the landlord and the sub-
tenant must also be held to be entitled to remain in
possession after the expiry of the term and the termination
of the tenancy, whether of the tenant or of the subtenant,
by virtue of the provisions of the Act.
Mr. Tarkunde has next contended that though in the
instant case the tenancy was granted for the month of April,
the tenant on the expiry of the said period is entitled to
continue to remain in
616
possession and enjoyment of the premises by virtue of the
provisions contained in the Act. It is the contention of Mr.
Tarkunde, that even on the expiry of the contractual period
of tenancy, the tenancy continues under the provisions of
the Act and the tenancy continues on the same terms and
conditions. In support of this contention Mr. Tarkunde has
relied on the decision of this Court in the case of V.
Dhanapal Chettiar v. Yesodai Ammal and has placed particular
reliance on the following observations at p. 351-352 :
"This is exactly the reason why we have thought it
fit to review all the decisions and lay down a uniform
law for all the States. Section 10 (1) of the Andhra
Pradesh Act provided that "A tenant shall not be
evicted whether in execution of a decree or otherwise
except in accordance with the provisions of this
section or sections 12 and 13. "A special provision in
the Andhra Act was contained in section 10 (7) which
says :
’Where an application under sub-section (2) or sub
section (3) for evicting a tenant has been
rejected by the Controller, the tenancy shall,
subject to the provisions of this Act, be deemed
to continue on the same terms and conditions as
before and shall not be terminable by the landlord
except on one or more of the grounds mentioned in
sub-section (2) or sub-section (3).
This special provision is provided by way of
abundant precaution only. Even without this a tenant
continuing in possession after the termination of the
contractual tenancy and until an eviction order is
passed against him continues on the same terms and
conditions as before and he cannot be evicted unless a
ground is made out for the eviction according to be the
State Rent Act."
Relying on the aforesaid observations, Mr. Tarkunde has
argued that even on the expiry of the contractual tenancy in
the month of April, the tenant continues to be a tenant
under the statute on the same terms and conditions as a
statutory tenant
617
and be continues to enjoy the authority of subletting of the
flat portion and the barsati portion of the said premises in
terms of the agreement originally entered into by and
between the tenant and the landlady. It is the argument of
Mr. Tarkunde that contractual tenancy in the instant case is
determined by efflux of time but the tenant is protected
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against his eviction by statute and as a statutory tenant,
the tenant continues to enjoy the same right of sub-letting
which he had as contractual tenant and the said right of the
tenant is not lost on the determination of the contractual
tenancy. In this connection. Mr. Tarkunde has referred to
the decision of this Court in the case of Damadilal and
others v. Parashram and others and he has relied on the
following observations at pp. 653-654 :-
"We find it difficult to appreciate how in this
country we can proceed on the basis that a tenant whose
contractual tenancy has determined but who is protected
against eviction by the statute, has no right of
property but only a personal right to remain in
occupation, without ascertaining what his rights are
under the statute. The concept of a statutory tenant
having no estate or property in the premises which he
occupies is derived from the provisions of the English
Rent Acts. But it is not 13 clear how it can be assumed
that the position is the same in this country without
any reference to the provisions of the relevant
statute. Tenancy has its origin in contract. There is
no dispute that a contractual tenant has an estate or
property in the subject matter of the tenancy, and
heritability is an incident of the tenancy. It cannot
be assumed, however, that with the determination of the
tenancy his status of irremovability and not the estate
he had in the premises in his occupation. It is not
possible to claim that the ’sanctity’ of contract
cannot be touched by legislation. It is, therefore,
necessary to examine the provisions of the Madhya
Pradesh Accommodation Control Act, 1961 to find out
whether the respondents’ predecessors-in-interest
retained a heritable interest in the disputed premises
even after the termination of their tenancy.
618
Section 2 (i) of the Madhya Pradesh Accommodation
Control Act, 1961 defines ’tenant’ to mean, unless the
context otherwise requires:
’a person by whom or on whose account or behalf
the rent of any accommodation is, or, but for a
contract express or implied, would be payable for any
accommodation and includes any person occupying the
accommodation as a sub-tenant and also any person
continuing in possession after the termination of his
tenancy whether before or after the commencement of
this Act; but shall not include any person against whom
any order or decree for eviction has been made’.
The definition makes a person continuing in
possession after the determination of his tenancy a
tenant unless after a decree or order for eviction has
been made against him, thus putting him on par with a
person whose contractual tenancy still subsists. The
incidents of such tenancy and a contractual tenancy
must therefore be the same unless any provision of the
Act conveyed a contrary intention. That under the Act
such a tenant retains an interest in 13 the premises,
and not merely a personal right of occupation, will
also appear from section 14 which contains provisions
restricting the tenant’s power of sub-letting. Section
14 is in these terms:
’Sec. 14. Restrictions on sub-letting:-(1) No
tenant shall, without the previous consent in writing
of the landlord-
(a) sub-let the whole or any part of the accommodation
held by him as a tenant; or
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(b) transfer or assign his rights in the tenancy or in
any part thereof.
(2) No landlord shall claim or receive the payment
of any sum as premium or pugree or claim or receive any
consideration whatsoever in cash or in kind for giving
his consent to the sub-letting of the whole or any part
of the accommodation held by the tenant.’
619
There is nothing to suggest that this section does
not apply to all tenants as defined in section 2(i). A
contractual tenant has an estate or interest in
premises from which he carves out what he gives to the
sub-tenant. Section 14 read with section 2 (i) makes it
clear that the so-called statutory tenant has the right
to sub-let in common with a contractual tenant and this
is because he also has an interest in the premises
occupied by him."
Mr. Tarkunde has further submitted that in the instant
case the question of any sub-letting by the tenant on the
expiry of the term of tenancy does not really arise, as the
tenant had sub-let the flat portion and also the barsati
portion in the month of April in terms of the written
consent of the landlady, while the contractual tenancy was
subsisting and in force. It is his submission that the
finding of the Rent Controller that the tenant had sub-let
one bed room in the fiat portion and also the barsati
portion in the month of May, in answering the issue remitted
to him by this Court, is clearly erroneous and not borne out
by the evidence on record. Mr. Tarkunde has argued that the
Rent Controller in arriving at this finding has mainly
relied on the tape-recorded conversation between the tenant
and landlady’s husband who also happens to hold the power of
attorney of the landlady. He has argued that rendering of
the tape-recorded conversation can be legal evidence by way
of corroborating the statement of a person who deposes that
the other speaker and he carried out that conversation or
even of the statement of a person who deposes that he over-
heard the conversation between the two persons and what they
actually stated, had been tape-recorded. It is his argument
that tape-recorded conversation may be used only as a
corroborative evidence of such conversation deposed to by
any of the parties to the conversation and in the instant
case in the absence of any such evidence the tape-recorded
conversation is indeed no evidence and cannot be relied
upon. Mr. Tarkunde, in support of this argument has relied
on the decision of this Court in the case of S. Pratap Singh
v. The State of Punjab. Mr. Tarkunde has further argued that
even if reliance is to be placed on the tape-recorded
conversation, it must then be held on the basis of the
evidence recorded therein that the contractual tenancy had
continued beyond the period of the
620
month of April. According to Mr. Tarkunde, in the present
case the landlady had not merely accepted the rent which the
landlady bad in fact done, on the expiry of the contractual
period of tenancy, but the tape-recorded conversation
clearly indicates that the tenancy was treated as continuing
between the parties, notwithstanding the expiry of the
period and the tenant was recognised as tenant with lawful
authority to sub-let even after the expiry of the month of
April, 1974.
Mr. Tarkunde on the basis of the aforesaid contention
has submitted that the order of eviction against the tenant
on the ground of subletting in the instant case is erroneous
and should be set aside.
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Mr. Mehta, learned counsel appearing on behalf of the
landlady, has submitted that the tenancy, in the instant
case was created only for the month of April, 1974. He
submits that on the expiry of April, 1974, the tenancy by
efflux of time stands determined and the agreement between
the parties comes to an end. He has argued that though under
the terms of tenancy, the tenant had been given the
necessary permission and authority to sub-let, such consent
or authority would remain valid only for the month of April
and there could lawfully be any sub-tenants only for the
month of April. He contends that on the expiry of the month
of April when the contractual tenancy comes to an end, the
possession of any sub-tenant of any portion of the said
premises would be unauthorised and illegal. It is his
contention that it is not open to the tenant to create by
way of sub-tenancy or otherwise any interest in any other
person larger than the interest which the tenant himself
enjoys. According to Mr. Mehta, the tenant on the terms and
conditions of the tenancy enjoyed the right of a tenant only
for the month of April and the tenant could only, therefore,
induct any subtenant on the basis of the terms and
conditions of the tenancy only for the month of April; and
the enjoyment or possession of any portion of the said
premises by any sub-tenant after the month of April would
necessarily be a case of wrongful and illegal subletting
without any written consent as the consent must necessarily
be considered to have stood revoked o n the expiry of the
month of April. Mr. Mehta has drawn our attention to clauses
1 and 14 of the rent note and has argued that; the said
clauses clearly indicate that the contract of tenancy was
valid only for the month of April and the
621
authority of subletting was also only valid for the said
month and on expiry of the said month the tenant was to make
over vacant possession to the owner of the premises in the
original condition. It is his argument that the contract of
tenancy clearly contemplates that there will be no sub-
tenants in the premises on the expiry of the month of April.
Mr. Mehta submits that existence of any sub-tenants in the
premises after the month of April, whether sub-tenants were
inducted in the month of April or thereafter, brings the
case within the mischief of S.13 (2) (ii) (a) and renders
the tenant liable to eviction on the ground of illegal sub-
letting. It is his submission that if there be any sub-
tenants in occupation or possession of any portion of the
said premises after the contractual tenancy had come to an
end the subletting must be held to be without the written
consent of the landlord and as such wrongful and illegal to
enable the landlord to evict the tenant on the ground of
such subletting. Mr. Mehta has submitted that this view
which has been consistently held by the High Court of Punjab
and Haryana, has also been followed by the High Court in the
instant case. In support of this submission Mr. Mehta has
referred to the decision in the case of Kartar Singh and
others v. Tarlok Singh and others which has been referred by
the learned Judge in the judgment under appeal. Mr. Mehta
has also relied on the decisions of the Punjab and Haryana
High Court in the case of Shri Kidar Nath v. Smt. Kartar
Kumar, and also in the case of Gurdas Ram v. Hans Raj.
According to Mr. Mehta, this view has held the field in
Punjab and Haryana all these years and this is the settled
law in the State. Mr. Mehta further submits that as sub-
tenants have continued to remain in possession after the
month of April, the subletting must be held to be without
any written consent and illegal to furnish a valid ground
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for the eviction of the tenant and all the courts including
the High Court have properly ordered the eviction of the
tenant.
Mr. Mehta has next contended that in the instant case
subletting of a bed room in the flat portion and also of the
barsati portion had been done by the tenant in the month of
May, 1974 as found by the Rent Controller after the remand
of the issue by this Court to the Rent Controller. Mr. Mehta
submits that the Rent
622
Controller had correctly come to the conclusion on the
evidence on record after allowing the parties opportunity of
adducing further evidence. Mr. Mehta has argued that as the
tenant had sub-let in the month of May after the expiry of
the period of tenancy, the subletting must be held to be
illegal and wrongful as the consent in writing by the
landlady contained in the rent note was only for the month
of April.
Mr. Mehta argues that on the expiry of the month of
April when the contractual tenancy comes to an end and the
tenant continues to remain in possession by virtue of the
provisions of the Act, the tenant does not enjoy any power
or authority to sub-let, even if such authority had been
granted to the tenant to sublet during the period of
contractual tenancy. It is the argument of Mr. Mehta that on
the expiry of the contractual tenancy, the terms and
conditions on the basis of which the tenancy had been
created, come to an end and the statutory tenant who may
enjoy protection against eviction by virtue of the statute
does not have any authority to induct any sub-tenant. In
support of this contention Mr. Mehta has referred to the
decision of this Court in the case of Anand Nivas (P) Ltd.
v. Anandji Kalyanji Pedhi & ors and he has relied on the
following observations at pp. 917:
"A statutory tenant is, as we have already
observed, a person who on determination of his
contractual right, is permitted to remain in occupation
so long as he observes and performs the conditions of
the tenancy and pays the standard rent and permitted
increases. His personal right of occupation is
incapable of being transferred or assigned and he
having no interest in the property there is no estate
on which subletting may operate."
Mr. Mehta has commented that this decision of this Court was
not considered by this Court in the case of Damadi Lal and
ors v. Parasram and ors.(supra).
Mr. Mehta has further argued that it is well settled
that mere acceptance of rent on the determination of the
contractual tenancy by efflux of time or otherwise does not
in the absence of something more have the effect of creating
a fresh tenancy or continuing the
623
contractual tenancy already determined; and it is his
argument that it cannot be said that a fresh tenancy was
created or the tenancy was allowed to continue on the expiry
of the month of April merely because the landlady had
accepted the rent from the tenant on the expiry of the
period of the tenancy after the month of April.
Mr. Mehta, therefore, submits that in the instant case
the order for eviction has been rightly passed and this
appeal should be dismissed.
Before we proceed to consider the main question
involved in this appeal, namely, whether the existence of
sub-tenants in the premises after the expiry of the term of
contractual tenancy, necessarily renders the subletting
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illegal and furnishes a ground for eviction within the
meaning of S. 13(2) (ii) (a) of the Act, we propose to
dispose of the other question as to whether there was any
subletting by the tenant in the month of May. On a careful
consideration of the report of the Rent Controller on the
issue remitted to him by this Court, we are of the opinion
that the finding of the Rent Controller that the tenant had
sub-let one bed room in the flat portion and the barsati
portion in the month of May, 1974 is not justified, as there
was no proper evidence or material before the Rent
Controller to come to the said finding. This finding of the
Rent Controller is based essentially on the tape-recorded
conversation between the tenant the husband of the landlady.
Tape recorded conversation can only be relied upon as
corroborative evidence of conversation deposed by any of the
parties to the conversation and in the absence of evidence
of any such conversation, the tape recorded conversation is
indeed no proper evidence and cannot be relied upon. In the
instant case, there was no evidence of any such conversation
between the tenant and the husband of the landlady; and in
the absence of any such conversation, the tape-recorded
conversation could be no proper evidence. We may further add
that the tape-recorded conversation, even if the same could
be relied upon, would be of no particular help to the
landlady, as the tape-recorded conversation clearly
indicates that the landlady on the expiry of the term of
tenancy had not merely accepted the rent but had manifested
the intention of continuing the tenancy, notwithstanding the
expiry of the terms; and the tape recorded conversation goes
to show that the husband of the landlady was asking the
tenant to induct suitable persons as sub-tenants under him.
624
As there is no proper evidence to show that any sub-
tenant was inducted after the expiry of the contractual
period of tenancy, it does not become necessary for us to
consider whether the tenant who, on the determination of the
contractual tenancy, continues to remain in possession by
virtue of the provisions of the statute as statutory tenant,
is entitled to sub-let and he continues to remain in
possession on the same terms and conditions on which he
became a tenant
The crux of the question, therefore, is whether the
subletting by the tenant with the written consent of
landlord during the currency of the tenancy becomes unlawful
and illegal on the determination of the tenancy and
furnishes a ground for eviction within the meaning of S.
13(2) (ii) (a) of the Act.
S. 13(2) (ii) (a) which we have earlier set out lays
down that if a tenant after the commencement of the Act has
without written consent of the landlord transferred his
right under the lease or sublet the entire building or any
portion thereof, the tenant shall be Liable to be evicted on
the ground of such subletting. The requirement of the
section, therefore, is that after the commencement of ’the
Act there has to be subletting by the tenant without the
written consent of the landlord to enable the landlord to
recover possession of the premises on the ground of
subletting It, therefore, necessarily follows that if after
the commencement of the Act, the tenant has sublet with the
written consent of the landlord, such subletting will not
furnish any ground or clause of action for the eviction of
the tenant by the landlord. It is to be noted that after the
tenant has lawfully sublet with the written consent of the
landlord, sub-tenant becomes a lawful sub-tenant; and as
such he becomes a ’tenant’ within the meaning of the Act
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under the tenant as his landlord and continues to enjoy all
the protection available to a ’tenant’ under the Act and the
tenant who inducts such sub-tenant is not entitled to evict
him as landlord of the sub-tenant except in accordance with
provisions of the Act. As the tenant enjoys protection
against eviction in terms of the provisions of the Act and
is not liable to be evicted except in accordance with the
provisions of the Act notwithstanding determination of his
tenancy by the landlord, the sub-tenant lawfully inducted
equally enjoys the same protection against eviction afforded
to a tenant by the Act; and the sub-tenant
625
can only be evicted in accordance with the provisions of the
Act in the same way as a tenant can be evicted. In spite of
the sub-tenancy being determined by the tenant as his
landlord, the subtenant by virtue of the protection against
eviction afforded to him by the Act is entitled to continue
in possession of the portion let out to him by the tenant as
his landlord; and it is just not possible for the tenant as
landlord to get rid of any sub-tenant at his will.
In the instant case, the tenant had the authority to
sublet and the written consent, as required by the statute,
had been given by the landlady. In terms of the authority
granted to the tenant and with the consent in writing of the
landlady, the tenant had inducted sub-tenants in the month
of April, when the contractual tenancy admittedly
subsisting. The subletting by the tenant in the instant case
could, therefore, afford no ground to the landlady or
furnish any cause of action for her to evict the tenant on
the ground of subletting on the basis of the provisions
contained in S. 13 (2) (ii) (a) of the Act. The sub-tenants
lawfully inducted came to be in lawful possession of the
portions let out to them by the tenant with the authority
and consent in writing of the landlady and such subletting
afforded a complete safeguard to the tenant against eviction
and would not come within the mischief of sec. 13 (2) (ii)
(a) of the Act. We have already held that the creation of
any sub-tenancy in the month of May is not borne out by any
proper evidence on record. The case of the landlady that
there was any sub-letting on the expiry of the month of
April without the written consent of the landlady has not
been established. In the instant case, the tenant has sublet
with the written consent of the landlady in the P month of
April and has not sublet any portion on the expiry of the
month of April. The argument of the learned counsel for the
landlady that on the expiry of the month of April, the
consent of the landlady in writing stands withdrawn is of no
consequences. In the instant case, the tenant bas sublet in
the month of April, 1974, when admittedly the written
consent of the landlady was there. The continuance in
possession of such subtenants in the portions lawfully let
out to them on the expiry of the month of April does not
amount to or have the effect of any fresh sub-letting by the
tenant on the expiry of the month of April; and, it cannot
be said that the tenant "has sublet" afresh on the expiry of
the month of April. The right of possession that the sub-
tenants enjoy on the basis of lawful induc-
626
tion as sub-tenants is assured to the sub-tenants as a
"tenant" within the meaning of the Act. As a tenant. in
spite of the determination of his tenancy continues the
right to remain in possession as a statutory tenant and
enjoys the protection against eviction by virtue of the
provisions contained in the statute, a sub-tenant who is
lawfully inducted, is also recognised by the statute to be a
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"tenant’ within the meaning of the Act and he must
necessarily enjoy the protection against eviction afforded
to a tenant by the Act. A lawful sub-letting on the basis of
the provisions of the Act does not become unlawful merely
because the contractual tenancy of the tenant comes to an
end. A tenant incurs the liability to be evicted, if the
tenant after the commencement of the Act sub-lets without
the written consent of the landlord; and the tenant who has
lawfully sub-let with the written consent of the landlord
must necessarily enjoy immunity from the process of eviction
on that ground. Subletting lawfully done with the written
consent of the landlord does not become unlawful merely on
the ground that the contractual tenancy has come to an end.
Sub-letting to constitute a valid ground for eviction must
be without the consent in writing of the landlord at the
time when the tenant sub-lets any portion to the subtenant.
A sub-letting by the tenant with the consent in writing
of the landlord does not become unlawful on the expiry of
the contractual tenancy of the tenant, unless there is any
fresh sub-letting by the tenant without the written consent
of the landlord. Mere continuance in possession of a sub-
tenant lawfully inducted does not amount to any fresh or
further sub-letting. We are, therefore, satisfied that in
the instant case the tenant has not sub-let any portion
without the written consent of the landlady after the
commencement of the Act. As the tenant has not sub-let any
portion after the commencement of the Act without the
written consent of the landlady, the landlady does not have
any proper ground for the eviction of the tenant on the
ground of sub-letting within the meaning of S. 13 (2) (ii)
(a). Mere continuance of possession by the sub-tenants
lawfully inducted by the tenant with the written consent of
the landlady contained in rent note does not afford any
ground to the landlady for eviction of the tenant on the
ground of sub-letting, as the tenant has not sub-let after
the commencement of the Act any portion without the consent
in writing of the landlady.
627
The appeal, therefore, succeeds. The Judgment of the
High A Court affirming the decision of the lower courts and
the order of eviction, are hereby set aside. The appeal is,
therefore, allowed with costs.
P.B.R. Appeal allowed.
628