ivil Appeal No 149 of 1965
Appeal by special leave from the judgment and order dated May 10 1963 of the Punjab High Court Circuit Bench in SAO No 40 D of 1963
CB Agarwala BRL lyengar PN Chaddha SK Mehta and KL Mehta for the appellant
ST Desai and Gopal Singh for Harbans Singh for respon dents Nos 1  2
Gurcharan Singh and Gopal Singh for Harbans Singh for respondents Nos
3 to 5 831 Sarkar and Bachawat JJ
delivered separate but concurring judgments
Mudholkar J delivered a dissenting Opinion
Sarkar J
The respondents are the owners of certain premises in Connaught Circus in New Delhi which were let out to Allen Berry  Co Calcutta Ltd Sometime in 1959 Allen Berry  Co transferred the lease to the appellant and put the latter in possession
Alleging that the transfer had been made without their consent the respondents made an application under el
b of the proviso to sub section
1 of section 14 of the Delhi Rent Control Act 1958 to the Controller appointed under it against Allen Berry  Co and the appellant for an order for recovery of possession of the premises from them
While the application was pending Allen Berry  Co went into liquidation and was in due course dissolved and its name was thereupon struck off from the records of the proceedings
The Controller later heard the application and made an order in favour of the respondents for recovery of possession of the premises from the appellant alone
An appeal by the appellant to the Rent Control Tribunal under the Act against this order was dismissed
The appellant then moved the High Court of Punjab for setting aside the order of the Tribunal but there also it was unsuccessful
It has now come to this Court in further appeal
It was contended that the order for recovery of possession made against the appellant after Allen Berry  Co had ceased to be a party to the proceedings was incompetent
This contention was based on an interpretation of the terms of sub section
1 of section 14 the material part of which is set out below section 14 1 Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant Provided that the Controller may on an application made to him in the prescribed manner make an order for the recovery of possession of the premises on one or more of the following grounds only namely a   b that the tenant has on or after the 9th day of June 1952 sub let assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord The contention of the appellant was put in this way The first part of sub section
1 of section 14 puts a complete ban on recovery of possession from all tenants
The proviso to it is only an excepting clause and it lifts that ban in the circumstances mentioned in it
It follows that the proviso
though it does not expressly mention 832 tenants permits orders for recovery of possession against them alone
The tenant in cl
b of the proviso means only the tenant sought to be evicted under the proviso such tenant having also to be by the express terms of the clause a tenant who has assigned his tenancy
This follows from the use of the article the before the word tenant there
Therefore the only person against whom an order for recovery of possession can be made under cl
b of the proviso to sub section
1 of section 14 is the tenant who has assigned his tenancy
No such order can hence be made against the person to whom the tenancy has been assigned
As the appellant was such a person no order for eviction could be made against it
I wish to observe at once that if this contention is correct which 1 do not think it is then the order could never be made against the appellant and the fact that Allen Berry  Co ceased to be a party to the proceedings made no difference in this regard
The argument of the appellant is really based on the article the prefixed to the word tenant in cl
b of the proviso
It is paid that the article clearly indicates that the only person against whom an order for ejectment can be made under cl
b is the tenant who assigns or sub lets or parts with possession of the tenancy without the landlord s consent
I am unable to accept this argument
The proviso expressly states that an order for ejectment can be made on one or more of the following grounds and then sets the grounds out in the different clauses that follow one of which is cl
b with which we are concerned
The clauses therefore set out the circumstances in which the operative part of the proviso is set in motion that is the circumstances in which an order for recovery of possession may be made
If this is so as I think it is the clauses could not have been intended to indicate the person against whom an order for recovery of possession could be made
This purpose was entirely different
1 am not suggesting that an order for recovery of possession against the assigning tenant cannot be made
All that I say is that the clauses do not intend to indicate the persons against whom an order for recovery of possession can be made and so it cannot be argued that the order cannot be made against any other person
Now the article the appears to me to have been used to show that the tenant assigning must be the tenant of the landlord seeking eviction
So read the effect of the proviso in cl
b is that a landlord can recover possession if his tenant has assigned
sub let or transferred possession without his consent
This would be the natural reading of the provision and would carry out the intention of the Act
If this is not the correct reading of the provision the situation would be anomalous
As the word tenant includes by virtue of its definition in section 21 a sub tenant
it would at least be arguable that el
b authorised a superior landlord to recover possession when the sub tenant assigned without his consent
That could not possibly have been intended for 833 the intermediate tenant would then have lost his tenancy for no fault of his
Therefore 1 think the article the was used only to emphasize that the tenant assigning must be the tenant of the landlord seeking eviction
The article the does not in my opinion lead inevitably to the conclusion that the only person against whom an order for recovery of possession can be made on the ground mentioned in el
b is the tenant assigning or sub letting or parting with possession of his tenancy without the landlord s consent
I think there are good reasons why it must be held that the Act contemplated orders for recovery of possession also against persons other than a tenant who has assigned or sub let without the landlord s consent
The offending tenant must of course go for as I have said he is the immediate tenant of the landlord desiring to recover possession and if he remains he would be entitled to possession and the landlord cannot recover possession
But this does not mean that the order may not also direct the removal from possession of others along with the immediate tenant when there is one
The reason for this view I will presently state
If I am right in what I have said it will follow that in a case like the present where the tenant becomes extinct without leaving any successor on whom the tenancy devolves an order can be made against a person who took an assignment of the lease from the tenant before it became extinct
It is trite saying that the object of interpreting a statute is to ascertain the intention of the legislature enacting it
When I enquire about the intention behind this statute 1 find that far from lending any support to the appellant s contention it tends quite the other way
First I observe that the object of the first part of sub section
1 of section 14 is to ban all recovery of possession of tenanted premises by a landlord and that of the proviso is to lift that ban in specified cases
The object of the proviso is then to enable the landlord to recover possession in any of the specified cases
Assume that the present is a case where the landlord became entitled to recover possession under cl
b of the proviso clearly then the statute intended the landlord to recover possession
It would be our duty to give effect to that intention unless the language used made it plainly impossible
I have earlier said that the language used does not compel the view that the only person against whom an order for recovery of possession can be made is the tenant assigning or sub letting without the landlord s consent
That being so orders against all persons in occupation must have been contemplated so that the landlord might without further trouble recover possession
Further find it impossible to hold that the language used indicates an intention that when a right has accrued to a landlord to recover possession that right would be taken away from him when the tenant assigning has become extinct without leaving a successor an event which is only accidental and certainly rare
A court would be fully justified in holding that in such a case it was 834 intended that an order for recovery of possession can be made against the assignee alone for that would enable the object of the statute which was to enable the landlord to recover possession to be achieved
An interpretation which defeats the object of a statute is of course not permissible
Then looking at section 18 of the Act I find that it clearly contemplates an order for recovery of possession under section 14 against a sub tenant
It says Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub tenant referred to in section 17 then in the circumstances mentioned the sub tenant shall be deemed to become a direct tenant under the landlord
This section plainly implies that an order for recovery of possession against a sub tenant is contemplated by cl
b of the proviso to sub section
1 of section 14
The appellant s argument to the contrary cannot be sustained against the clear implication of the Act
If section 14 contemplates an eviction order against a sub tenant it must equally contemplate such an order against assignees of tenants for the section makes no distinction between sub tenants and assignees for the purpose of making such orders
I am not unmindful of the fact that where an order for recovery of possession of any premises is made under section 14 against a tenant assigning or sub letting without the landlord s consent that order would under section 25 of the Act be binding on all persons in occupation of the premises except those who leave independent title to them
This section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made
It would not therefore support an argument that an order for recovery of possession could be made under section 14 against an assignee or a sub tenant
On the other hand it seems to me that to an application under cl
b of the proviso to sub section
1 of section 14 an assignee or sub tenant as the case may be should be a proper party
Under this provision an ejectment order can be made only when the assignment or sub letting was without the consent of the landlord
If it was with such consent the assignee or the sub tenant would be protected by the Act
An assignee or a sub tenant is therefore interested in showing that there was the requisite consent
They should hence be entitled to be made parties to the proceedings
Otherwise if under section 25 an eviction order obtained against the direct tenant is binding on them they would be liable to be condemned without a hearing
It is no argument against this view that the direct tenant would protect them for they cannot be made to depend on him for the protection of their rights
The direct tenant may be negligent or incompetent in his defence he may even collude with the landlord or he may just not bother
If the assignee or the sub tenant is thus entitled to be heard to oppose the order for eviction that would be another reason for saying that an order eviction could be made against them also if they could oppose the 835 making of the order it would be unnatural to say that the order could not be made against them
In what 1 have said in this paragraph I do not wish to be understood as holding that in view of  section 25 an order for eviction against a tenant is in fact binding on his assignee or sub tenant
Such a decision is not necessary for this case
I wish however to point out that if section 25 does not make the ejectment order so binding the appellant cannot resort to it for any assistance
I have now dealt with the first argument in support of the appeal and I find it unacceptable
The other argument was that the order for recovery of possession was unwarranted as in fact there had been a consent of the respondents to the assignment in favour of the appellant
It is said that the consent was given by a clause in the lease under which Allen Berry  Co held which reads as follows That whenever such an interpretation would be necessary in order to give the fullest scope and effect legally  possible to any covenant or contract herein contained the expression The Lessor hereinbefore used shall include his heirs executors administrators and assigns
and the expression THE LESSEE hereinbefore used  shall include their representatives and assigns
 I am unable to accept this contention also
I notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor
The lessee no doubt had that right under the Transfer of Property Act
It may be that under the clause the lessee s assignee would be included in the expression lessee as used in the lease that is the entire effect of the clause
But this would be so whether the lessor had consented to the assignment or not
Therefore this clause does not lead to the conclusion that the lessor had consented to the assignment
It is of no assistance in the present case
I am also  inclined to the view that the consent contemplated by section 141 proviso b is a direct consent to a contemplated assignment to a particular assignee see Regional Properties Ltd vs Frankenschwerth1
Clearly the clause in the case relied upon could not be a consent of this kind
This point therefore also fails
For these reasons I would dismiss the appeal with costs
Mudholkar J
In this appeal by certificate granted by the Pun jab High Court an unusual question arises for consideration
That question is whether an application made under section 141b of the Delhi Rent Control Act 1958 by a landlord of a building in Delhi against a tenant who happens to be a company incorporated under the Indian Companies Act cannot be proceeded with and granted  on the ground that before the making of any order thereon by the  1 836 Rent Controller the Company is dissolved and is struck off the record of the case
According to the appellant who claims to be an assignee from the original tenant that is the Company such an application cannot be proceeded with and granted while according to the respondent landlord the fact that the company is dissolved makes no difference
The facts which are not in dispute and which have been stated in the judgment of Bachawat J need not be recapitulated because what I have already said is sufficient to enable me to deal with the point
The relevant part of section 141 reads thus Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant Provided that the Controller may on an application made to him in the prescribed manner make an order for the recovery of possession of the premises on one or more of the following grounds only namely b that the tenant has on or after the 9th day of June 1952 sublet assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord It is not necessary to refer to cl
a or to the several clauses following el
b in this sub section or to any of the sub sections of section 14
Looking at sub section
1 what we find is that it enacts a bar to the making of an order or decree for the recovery of possession of any premises by any court or the controller against a tenant
In other words the jurisdiction of a civil court or even of the Rent Controller to make an order of eviction against the tenant is taken away
The proviso however lifts the ban against eviction in certain circumstances one of which is that set out in el
What is important to bear in mind is that sub section
1 is intended to protect the possession of the tenant
A proviso to a section or a sub section is subservient to the main provision
It would therefore follow that the ban against the eviction is lifted only with respect to the possession of the tenant and not of any other person
In so far as persons other than the tenant who may be in possession of the premises which pertain to the tenancy is concerned the matter is dealt with by section 25 and we can leave that out at any rate for the present
Another thing to be noticed about section 14 is that 837 though under section 21b of the Act the word tenant includes several other persons in addition to the one with whom there was a contract that expression must be regarded as relating to the same individual in the entire section or at least in sub section
1 of section 14 wherever it occurs
Thus if in the first part of sub section
1 of section 14 tenant is regarded as meaning as assignee of the tenant then it would have to be given the same meaning in cl
b of sub section
1 of section 14
That is to say that if there is a sub letting or a further assignment or any other kind of parting with possession by an assignee of the original tenant the assignment by the original tenant having been accepted or acquiesed in by the landlord such assignee can be evicted by the landlord if the action of the assignee of the kind mentioned was taken by him without his written consent
Now since sub section
1 is a bar to the jurisdiction of the Rent Controller to make an order or decree for recovery of possession against a tenant it must necessarily follow that the tenant must be a party to a proceeding before him right up to the date of the making of the decree or order
Thus if the tenant dies during the pendency of the proceedings and his legal representative is not substituted on the record in his place the proceeding will abate against him and the Rent Controller will have no jurisdiction to make an order in favour of the landlord
That is to say the proviso will not be available to the landlord no matter what the tenant had done if the records of the proceeding became defective because neither the tenant nor his legal representative was any longer a party to those proceedings
The reason for this is that the ground upon which the landlord s application is based can be availed of for lifting the ban on the eviction by the Rent Controller of the tenant alone
Unless an order is obtained against the tenant there would be no occasion for pressing in aid the provisions of section 25 of the Act
Where during the pendency of the proceedings before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still have left in the demised premises no difficulty would arise because his legal representative or assignee could be brought on record in his place
But it must be admitted that an anomalous position results where the tenant happening to be a company is dissolved during the pendency of the proceedings and can therefore be not represented by any person
The Act does not contemplate this position nor even does the Code of Civil Procedure and so we have it that the defect in the record resulting from the dissolution of a company cannot be removed at all
The result however of this is that the jurisdiction of the Controller to proceed with the application of the landlord and therefore to make eventually an order or decree entitling the landlord to recover possession from the tenant ceases to be exercisable
Apparently this curious position arises because of a lacuna in the law
Such a lacuna cannot be removed by the Courts without assuming the power to legislate which obviously is beyond the 839 competence of any court
The duty of courts is merely to administer the law as they find it
The only way for remedying the defect is for the legislature to step in and amend the law
The result of what has happened in this case is that the right which the landlord possessed to evict the now defunct company from the premises through the intervention of the Rent Controller because the company had assigned the demised premises to an
other without his consent can no longer be availed of by him
The assignee who is the appellant before us can therefore continue to be in possession of the premises even though he may have been liable to be evicted with the aid of section 25 had the company not been dissolved in the meanwhile
Whether the landlord has now a right under the general law to evict the appellant is not a matter upon which I would express an opinion because it does not strictly arise at this stage
For these reasons I would allow the appeal set aside the orders of the courts below and dismiss the application of the respondent landlord under section 141b of the Act
In the particular circumstances of the case I would direct that costs throughout shall be borne by the parties as incurred
Bachawat J Originally one Amar Sarup owned the land and building at plot No 5 Block M  Connaught Circus New Delhi
By a lease dated March 1 1956 Amar Sarup leased the property to Allen Berry  Co Calcutta Ltd hereinafter referred to as the tenant for a period of five years on a monthly rent of Rs 297 
Sometime thereafter Amar Sarup transferred the property to the respondents
In or about May 1959 the tenant assigned the tenancy rights
and parted with possession of the whole of the premises to the appellant
On October 6 1959 the respondents filed an application before the Rent Controller Delhi praying for eviction of the tenant and the appellant
The tenant a limited company had gone into voluntary liquidation on September 26 1959 and it was finally wound up and dissolved on October 29 1960
On its dissolution the tenant ceased to exist and by order of the Rent Controller its name was struck off from the array of parties in the pending application
By an order dated October 10 1962 the Rent Controller passed an order of eviction against the appellant
An appeal by the appellant to the Rent Control Tribunal Delhi was dismissed on January 23 1963 and a second appeal to the Punjab High Court was dismissed on May 10 1963
A Letters Patent Appeal from the order dated May 10 1963 was dismissed on December 11 1963 on the ground that the appeal was not maintainable and an appeal to this Court from the last order was dismissed on January 18 1965
The appellant has now preferred this appeal from the order dated May 10 1963 by special leave granted by this Court
The respondents landlords instituted the proceeding for eviction of the tenant and its assignee relying on the provisions of section 141 of the Delhi Rent Control Act 1958 Act 59 of 1958 the relevant portion of which is as follows 141
Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant Provided that the Controller may on an application made to him in the prescribed manner make an order for the recovery of possession of the premises on one or more of the following grounds namely b that the tenant has on or after the 9th day of June 1962 sub let assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord The case of the landlords is that the tenant has  assigned the whole of the premises without obtaining the consent in writing of the landlord and therefore the Controller had jurisdiction to make an order for possession
The tenant is forbidden by section 163b of the Act to make the assignment for contravention of section 163b he is punishable with fine under section 482 and the assignment is a ground for eviction under section 141 proviso paragraph b and so the landlords submit that the Controller had jurisdiction to make the order for possession against the tenant and its assignee and on the dissolution of the tenant against the assignee alone
Counsel for the appellant contended that the Controller had no jurisdiction to make the order for possession in the absence of the original tenant
I cannot accept this submission
Both the tenant and the assignee were properly parties to the proceedings for possession and if the tenant company had not been dissolved the Controller would have been competent to make the order for possession
The tenant has since been dissolved and ceased to exist no one can be substituted in its place and 1 do not see why the proceedings cannot now continue against the assignee alone
Paragraph b of the proviso to section 141 evidently contemplates proceedings for possession against both the tenant and the assignee who as a result of the assignment has been put in possession of the premises
Counsel for the appellant made the alternative submission that paragraph b contemplates an assignment by the tenant against whom the order for eviction is made and as the appellant was the assignee and not the assignor there was no ground for its eviction under paragraph b
It is true that other paragraphs of the proviso contemplate the eviction of the tenant on the ground of some act on the part of the tenant against whom 840 the proceeding for possession is brought but under paragraph b the assignment is a ground of eviction of both the assigning tenant and the assignee and in the event of an assignment without the consent in writing of the landlord the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee
Counsel for the appellant next referred us to cl 7 of the lease which is in these terms That whenever such an interpretation would be necessary in order to give the fullest scope and effect legally possible to any covenant or contract herein contained the expression The Lessor  hereinbefore used shall include his heirs executors administrators and assigns and the expression The Lessee  hereinbefore used shall include their representatives and assigns
 Counsel for the appellant submitted that by cl 7 of the lease the landlords have given their consent in writing to the assignment
I cannot accept this submission
The consent in writing within the meaning of paragraph b of the proviso to section 141 may be either general or special but no such consent was given by cl 7
The effect of cl 7 is that the assignee of the lease enjoys the benefits and is subject to the burden of the covenants in the lease but the clause does not amount to a consent by the landlord to an assignment either expressly or by necessary implication
The assignment to the appellant was without the consent in writing of the respondents
The Controller rightly passed the order for possession of the premises
Counsel for the appellant contended that the contractual term of the lease not having expired on October 6 1959
the proceeding before the Controller was not maintainable
We indicated in the course of the argument that this contention not having been raised in the Courts below we are not inclined to allow the appellant to raise it here for the first time
In the result the appeal is dismissed with costs
ORDER In accordance with the opinion of the majority the appeal is dismissed with costs
The appellant will have a month s time from today to vacate the premises


Summary:
The respondents were the owners of certain premises in New Delhi
The lessee a company of these premises assigned the lease to the appellant
Alleging that the transfer was done without their consent the respondents filed an application against the lessee and the appellant under section 141 proviso b of the Delhi Rent Control Act 1958 for recovery of possession
Pending the proceedings the lessee went into liquidation and its name was struck off from the record
The Controller thereafter passed an order in favour of the respondents
Having moved unsuccessfully the Rent Control Tribunal and the High Court the appellant appealed to the Supreme Court contending that i the order made against the appellant after the lessee ceased to be a party was incompetent as the only person against whom an order for recovery of possession can be made under the clause is the tenant who assigned the tenancy and ii the clause in the lease by which the term lessee included the lessee s assignee operated as a consent by the respondents to assign
HELD i Per Sarkar J
The Act contemplates orders for recovery of possession also against persons other than a tenant who has assigned or sub let without the landlord s consent so that where the tenant becomes extinct without leaving any successor an order can be made against a person who took an assignment of the lease from the tenant before the lease became extinct
833C D E The proviso expressly states when an order of ejectment can be made and the clauses of the proviso are not intended to indicate the persons against whom an order for recovery of possession could be made but only the circumstances in which an order for recovery of possession may be made
832E G The expression the tenant in cl
b is used only to emphasise that the tenant assigning must be the tenant of the landord seeking eviction
So read the effect of the clause is that a land lord can recover possession if his tenant assigns or sub lets without his consent
832H 833A B Since the object of the proviso is to enable the landlord to recover possession in the specified cases orders against all persons in occupation must have been contemplated so that the landlord might without further trouble recover possession
Section 18 plainly implies that an order for recovery of possession against a sub tenant is contemplated by the proviso
Further
the order for recovery of possession would under section 25 be binding on the assignee or sub tenant and therefore they would be interested in showing that there was the requisite consent and hence would be entitled to be made parties to the proceedings
If they are thus entitled to be heard to oppose the order of eviction such an order could be made against them also
833F G H 834C E H 835A 830 Per Bachawat Ji Both the tenant and the assignee were properly parties to the proceedings for possession and if the tenant company had been dissolved there is no reason why the proceedings could not continue against the assignee alone
839G It is true that other clauses of the proviso contemplate eviction of the tenant on the ground of some act on the part of the tenant against whom the proceeding for possession is brought but under cl
b the assignment is a ground of eviction of both the assigning tenant and the assignee and the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee
839H 840B Per Mudholkar J Dissenting The right which the respondents possessed to evict the defunct company from the premises because the company had assigned the tenancy to the appellant without the respondents  consent could not be availed of by them and the appellant could therefore continue in possession
838B C The ban against eviction of a tenant in section 141 is lifted by the proviso only with respect to the tenant and not to any other person because a proviso is subservient to the main provision
Therefore the tenant must be a party to the proceeding right up to the date of making of the order of eviction
Unless an order is obtained against the tenant there would be no occasion for pressing in aid section 25
Unlike the case of death of or assignment by a tenant an anomalous position results where the tenant happening to be a company is dissolved during the pendency of proceedings and cannot be represented by any one because of a lacuna in the law But such lacuna cannot be removed by the Courts without assuming a power to legislate
836H 837F H ii Per Sarkar J The clause in the lease according to which the lessee includes his assignee does not lead to the conclusion that the lessor consented to the assignment
Besides the consent contemplated by the proviso is a direct consent to a contemplated assignment to a particular assignee
835F G Regional Properties Ltd vs Frankenchwerth  applied
Per Bachawat J The consent contemplated by cl
b may be either general or special but the clause in the lease would not amount to a consent by the landlord to an assignment either expressly or by necessary implication
840D E