ivil Appeal No 591 of 1974
Appeal by Special Leave from the Judgment and order dated the 15th February 1974 of the Gujarat High Court in Civil Revision Appln
No 32671
P H Parekh and Manju Jaitley for the appellant
section section Khanduja and R N Bhalgoha for respondents 2 4
The Judgment of the Court was delivered by RAY CJ
This appeal is by special leave from the judgment dated 15 February 1974 of the Gujarat High Court dismissing the revision petition filed by the appellant
536 The appellant filed a Revision Petition in the High Court against the judgment and decree passed by the District Judge dismissing his appeal against the decree for eviction of the appellant from the suit premises
The respondent filed the suit against the appellant for possession of the premises on the ground that the appellant had sublet a portion of the premises
Section 131 e of the Bombay Rents  Hotel and Lodging House r Rates Control Act 1947 which is the relevant section for the purpose of this appeal runs as follows  131e That the tenant has since the coming into operation o this Act unlawfully sublet or after the date of Cr commencement of the Bombay Rents Hotel and Lodging House Rates Control Amendment Act 1973 unlawfully given on licence the whole or part of the premises or assigned or transferred in any other manner his interest therein
The appellant took on lease on 1 January 1960 the premises namely first floor consisting of four rooms at a rent of Rs 50 per month
The respondent alleged that the appellant sublet a portion thereof namely two rooms in the month of August 1965
The respondent on 1 April 1967 gave a notice to the appellant terminating the tenancy
The appellant denied that there was any unlawful subletting of two rooms to respondent No 5 Jitendra Shankerji Desai
The appellant further alleged that the respondent No 5 Desai vacated the suit premises on 14 April 1967
At the trial the issues were whether the appellant unlawfully sublet two rooms to respondent Desai
The Trial Court held that the appellant sublet the suit premises to respondent No section The Trial Court gave the plaintiff respondent a decree for possession of the suit premises
The appellant preferred an appeal
The appeal was dismissed
The appellant thereafter filed a revision petition in the High Court
In the High Court the contentions were these
The expression the tenant has sublet in section 131e of the above mentioned Act means that the subletting must continue at the date of the suit for passing the decree
The notice was given on 1 April 1967
The respondent No 5 vacated the premises in suit on 14 April 1967
When the suit was filed the sub tenant was not in occupation of the premises
Therefore the plaintiff respondent was not entitled to a decree
The High Court relied on a Bench Decision of that High Court Maganlal Narandas Thakkar  Anr
vs Arjan Bhanii Kanbi1 1 1969 GLR Vol
10 p 837
537 where it was held that the words has sublet in section 131 e of the Saurashtra Rent Control Act mean that a subletting has take place and as a result of that subletting the impediment in the way of the landlord to recover possession has been removed
The provisions contained in section 131e of the Saurashtra Rent Control Act are r similar to the provisions contained in the Bombay Act 1947
The High Court also held that the wards has sublet  do not include any element of the sub tenancy being in existence at the date when the suit is filed
The appellant relied on a decision on this Court in Goppal vs Thakurji Shriji Shriji Dwarkadheeshji  Anr support of the proposition that the words has sublet means that the subletting is to subsist at the date of the suit
This Court in Goppulal s case supra considered section 131 of the Rajasthan Premises Control of Rent and Eviction Act 1950
Section 131 e of the Rajasthan Act provides that no decree evicting the tenant shall be passed unless the Court is satisfied e that the tenant has assigned sublet or otherwise parted with the possession of the whole or part of the premises without the permission of the landlord
The High Court in Goppulal s case supra held that two
shops were sublet after October 15 1947 when the Jaipur Rent Control order 1947 came into force
Subletting was a ground for ejectment under paragraph 8 1 b ii of the Jaipur Rent Control order 1947
The High Court held that the tenant s liability for eviction on this ground continued after the promulgation of the Rajasthan Premises Control of Rent and Eviction Act 1950
This Court said that the High Court was in error that there was one integrated tenancy for six shops
The facts found were that four shops were let out in 1944 and two shops were let out after 1945
This Court found that the High Court was in error in holding that two shops were sublet after 15 October 1947
This Court held that the plaintiffs in Goppulal s case supra did not establish that the subletting was after 15 October 1947 and on the Date of the subletting in 1944 no Rent Control Legislation was in force
lt is in that context that it is said that the words has sublet contemplate a completed event connected in some way with the present time
This Court said that the words has sublet take within their sweep any subletting which was made in the past and has continued upto the present time
What is meant by these observations is that the vice of subletting which fell within the mischief of the Act continues to be a mischief within the Act
In Goppulal s case supra there was no subletting in 1947 to violate the 1947 Jaipur Rent Control order and therefore there could not be any subletting which could continue upto the 1950 Rajasthan Act
On the date of the subletting in 1944 this Court found in Goppulal s case supra that there was no Rent Control Legislation in 1  4 L925SupCI75 538 force This Court did not consider the question as to whether subletting to be within the mischief of the relevant statute was to subsist at the date of the suit
This Court held that section 131e of the Rajasthan Act would include any subletting which though made in the past would continue at the point of the time when the Act came into force
The appellant repeated the same contentions which had been advanced before the High Court
The provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisions of section 131e namely t that he has sublet
The language is that if the tenant has sublet the protection ceases
To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub tenant vacates
The landlord will not be able to get any relief against the tenant in spite of unlawful subletting
In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the sub tenant to vacate the premises
The tenant s liability to eviction arises once the fact of unlawful subletting is proved
At the date of the notice if it is proved that there was unlawful subletting the tenant is liable to be evicted
The High Court rightly rejected the revision petition
The appeal is dismissed with costs  PHP Appeal dismissed


Summary:
The respondent landlord filled a suit for eviction against the appellant tenant on the ground that the appellant had sublet a portion of the premises
The trial court and the First Appellate Court came to the conclusion that on the date when the notice terminating the tenancy was served on the appellant he did in fact sublet a portion of the suit premises
The courts however came to the conclusion that on the date when the respondent instituted the eviction suit the sub letting had ceased
The trial court and the lower appellate court granted a decree of eviction in favour of the respondent
A revision filed by the appellant before the High Court also failed
Section 131e of the Bombay Rents Act makes a ground of eviction that the tenant has since the coming into operation of  this Act unlawfully sublet  On appeal by special leave it was contended by the appellant that the expression has sublet pre supposes that subletting must continue till the date of the institution of the suit
Dismissing the appeal
 HELD 1 The tenant is disentitled to any protection under the Bombay Rent Act if he is within the mischief of the provisions of section 131e
To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground of unlawful subletting the sub tenant vacates
The landlord will not be able to get any relief against the tenant in spite of unlawful subletting
In that way the tenant can foil the attempt of landlord to obtain possession of the Premises on the ground of subletting every time by getting the sub tenant to vacate the premises
538 D 2 The tenant s liability to eviction arises when the fact of unlawful subletting is proved
At the date of the notice if it is proved that there was unlawful subletting the tenant is liable to be evicted
538 D Maganlal Narandas Thakkar  Anr
vs Arjun BhanjiKanbi 969GLR Vol
10 p 627 Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji  Anr
  distinguished