ORDER
1. The petitioner is the original plaintiff. On 1-9-1964 he filed a suit for possession of a shop situate in Ganji Market, Saraf Bazzar, Ward No. 6 of Ahmednagar City, bearing Municipal Committee No. 2801, City Survey No. 3093, against two defendants under the [ACT], (hereinafter referred to as the '[ACT];) on the sole ground of defendant No. 1 tenant having failed to pay arrears of rent for more than six months in spite of service of notice under [SECTION] of the [ACT]. It was alleged that defendant No. 2 was running the said shop as the servant of the defendant No. 1 Defendant No. 1 did not contest and the proceedings were se ex parte against him. Defendant No. 2 contested the suit, pleading that he was a lawful sub-tenant and had paid rent to defendant No. 1 and cannot be evicted for breach of [SECTION] of the [ACT] by defendant No. 1.
2. The trial Court accepted the case of the plaintiff that defendant No. 2 was the servant of defendant No. 1 and passed a decree for eviction against both for non -payment of rent by defendant No. 1 and also a decree for rent against defendant No. 1. On appeal by defendant No. 2, decree for eviction against him was set aside by the District Judge holding that, he was a lawful sub - tenant and his possession was protected by the [ACT] and he cannot be evicted for failure of the defendant No. 1 to comply with [SECTION] of the [ACT]. the plaintiff challenges this decree in this Spl. C. A. under [SECTION] of the [ACT].
3. Mr. [ENTITY] for the petitioner contends that finding of fact as to the defendant No. 2 being the sub - tenant is vitiated by several errors. According to him, no rent agreement or rent receipts have been produced, nor attempt to lead evidence to prove direct lease agreement is even made, nor defendant No. 1 is examined to prove the grant of sub - lease by him to defendant No. 2. He contends that, reliance by the District Judge on an irregularity maintained rough note - book and un -proved documents of the Office of the Shop and Establishment Inspector, amounts to relying on hearsay evidence. I do not find any substance in this contention. The learned District Judge has relied on the evidence and defendant No. 2, his two witnesses and, also on the Registration Certificate under the [ACT] issued in the years 1957 and 1959, showing that defendant No. 2 was running his own shop in the premises in dispute. This finding of fact does not cease to be so far the reasons suggested by Mr. [ENTITY]. There is also no substance in the contention that the evidence of the plaintiff is not considered or that the judgment of the District Judge bristles with several misquoted extracts of evidence. None was however cited before me.
4. Mr. [ENTITY], however, contends that assuming that the defendant No. 2 is lawful sub - tenant, he is still liable to be evicted along with the main tenant, once the main tenant, defendant No. 1, is so found liable under [SECTION] of the [ACT] due to his failure to pay the arrears of rent. Now, it could have been so under the ordinary law of landlord and tenant under which sub - tenant cannot possess or claim any better or independent rights apart from, the one that can be claimed through the main tenant. He has to sink or swim with the main tenant. But not so under the [ACT]. The defendant No. 2 is proved to have been a lawful sub - tenant. Sub - lease in his favour is proved to have been created before 1957. Definition of the word 'tenant', in [SECTION] includes sub - tenant inducted lawfully before the amendment of [SECTION] of the [ACT] by [ACT]. It will not make any difference as to whether sub - tenant is in possession of the whole or only a part of the premises leased to the tenant. Implication of this inclusive definition is that protection afforded to any tenant against his landlord under any provisions of the [ACT], is also available to the sub - tenant against his lessor, the main tenant, in the same manner and to the same effect, as any other main tenant himself can claim against the landlord. By creating sub - lease before the date of [ACT], the tenant ceases to furnish his landlord any cause of action for eviction under [SECTION] of the [ACT]. Such sub - leases are rendered now lawful even though these were not so when the same were created. The landlord has to suffer such sub - leases and put up with the possession of the premises or portion thereof by the sub - tenants without any privity of contract with them. [SECTION] then confers a right on the sub - tenant to claim the right on the sub - tenant to claim the status of tenants on the determination of the interest of the tenants in the premises. This right is again available to the sub - tenants, whether the landlords like it or not and in spite of them.
5. It is thus clear that the protection available to sub - tenants under the [ACT] is not the creation of the contract but is statutory. It does not depend upon sweet - will or pleasure of the landlord or the main tenant and also cannot depend on their act or omission. This protection of the [ACT] is made available independently of the rights, and acts, or omission of the main tenant.
6. [SECTION] of the [ACT] affords a sort of guarantee of the continuance of the tenancy and, secondly of the possession of premises to the tenant against his landlord as long as he is ready and willing to pay rent and to abide by the term of the tenancy. Any sub - tenant also is entitled to claim the same guarantee and protection, in regard to the premises or portion in his possession as against his lessor, i.e., the main tenant. This can be denied to him only on his failure to pay rent to his lessor i.e., tenant, or on his non - compliance with the terms of the tenancy. This protection obviously cannot be denied to him on the failure to pay rent by the tenant to the landlord or breach of any terms of the tenancy by the tenant. Such art or omission of the tenant may result in the loss of protection of the Act to him in regard to the portion in possession of the tenant. This may, however, result in the determination of tenant's interest in the portion of the premises in possession of the sub - tenant and confer the status of a tenant on him. But mere non - payment of rent by the main tenant to the landlord cannot result in the liability of the sub - tenant for eviction. This militates against the guarantees and protection afforded by this very section to the sub - tenant under [SECTION] which contemplates reversion of tenant's right in such contingency on the sub - tenant and not on the landlord. No sub - tenant ever will be able to either claim tenant's rights under [SECTION] if his rights in the premises are to determine along with the tenant, or the landlord's act or omission without his own any such failure, act, or omission. It shall also have to be borne in mind that [SECTION] of the [ACT], does not appear to aim so much at landlord's right of resumption of the premises as at ensuring the receipt of the rent by him. Possession by the landlord in such contingency is more the result than the object.
7. Strong reliance is placed on the two clauses of [SECTION] wherein it is said that the sub - tenant becomes tenant "on the same terms and conditions" and "subject to the provisions of the Act". The contention of Mr. [ENTITY] that 'terms and conditions' referred to therein include liability to eviction and forfeiture of tenancy incurred by the main tenant, is simply untenable. This clause can apply only after a sub - tenant, becomes tenant in exercise of the right under this section. Mr. [ENTITY], however contends that accrual of such rights to the sub - tenant is controlled by [SECTION] and [SECTION] of the [ACT] and he cannot claim any independent right or protection against eviction, if the landlord succeeds in making out a case for the main tenant's eviction under any of the clauses of [SECTION] and [SECTION] of the [ACT]. To my mind, such construction of the above clause, "subject to provisions of this Act", of [SECTION] is not warranted by the language of this section itself or [SECTION] & [SECTION] and any such construction will render the rights and protection conferred on the sub - tenant under several provisions just illusory and ineffective. Under [SECTION] of the [ACT] the tenant is liable to lose protection of the Act, if he does or omits to do the acts envisaged therein. This cannot be construed to mean that such acts or omissions of any tenant can deprive the sub - tenant of the statutory protection where impugned act or omission is not his and the sub - tenant is not shown to have been privy to the same, otherwise. Under [SECTION], landlord can claim possession on proof of his need for some purpose or the other.' This claim against shall have to be tested not only against the rights and the security afforded to the tenant under [SECTION] and [SECTION] and other provisions such as [SECTION], but the same shall also have to be tested in the light of the protection afforded to the sub - tenant in regard to the portion actually in his possession. Claim, of the landlord under [SECTION] shall have to be examined accordingly. Any other interpretation will reduce the intended protection to sub - tenants to an absurdity. The clause 'subject to the provisions of the Act' shall have to be construed harmoniously consistent with the protection given to the sub - tenants too. So construed, it can only mean that the sub - tenant will not be qualified to be the tenant under [SECTION] when he also incurs liability for eviction under [SECTION] of the [ACT] for some act or omission of his or when the landlord has succeeded in proving the need against sub - tenant also under [SECTION], in spite of [SECTION] of the [ACT] or when absence of sub - tenants need under [SECTION] is proved about the portion in his possession. In fact it is difficult to conceive how a tenant's failure to pay rent under [SECTION] will ever be attributable to any act or omission of the sub - tenant excepting very remotely, and how sub - tenant will ever incur liability for eviction in favour of the new landlord in such a case. There is thus no force in the contention of Mr. [ENTITY] that the landlord is entitled to decree for possession even against the lawful sub - tenant without any act or omission of his, on mere proof of non - compliance of [SECTION] by the tenant.
8. Mr. [ENTITY] relies on the judgment in [PRECEDENT], to support his contention. Landlord in that case has succeeded in getting a decree for possession against the tenant and sub - tenants on the ground of unlawful subletting and unauthorised construction. In the meanwhile [ACT] was enforced and the sub - tenants claimed protection under [SECTION] of the [ACT], in their Spl. C. A. to this Court. Protection was denied to them by this Court in view of the finding of fact that sub - tenants also had incurred forfeiture of their rights by being party to the said unauthorised construction. It was held that the sub - tenant could not claim protection of the Act when they had failed to observe the terms of the tenancy. This is the only and true ratio of the Division Bench judgment and it does not run counter to what I have held above. With respect I agree with the views of Division Bench so far.
9. But Mr. [ENTITY] relies on the observations in the last tow paras of the judgment at page 340 of the report. Apparently reading thereof creates an impression of these supporting his condition. On close reading, however, observations are neutral. None in fact militates against what I have said above. But the judgment ends with the following conclusion :-
"In our view, therefore, even on the assumption that the tenant defendant No. 1 had effected the alterations, since the landlord became entitled to possession defendants Nos. 2 and 3 cannot have the protection of [SECTION]."
These observations in the last two paras can assume different complexion if read in the light of the above conclusion. These, can be construed to mean that the landlord need not prove any act or omission of the sub - tenant, once any act or omission of the main tenant furnishes cause of action to the landlord to claim a decree for possession. With great respect, I do not agree with this view, if these observations really so mean. But in view of the controversy and the decision in the said case as summarised above, these observations were not necessary. These observations really do not constitute the ratio of the judgment in view of the principles laid down in [PRECEDENT], and [PRECEDENT]. Secondly, U have no quarrel with the broad principles that, rights of sub - tenants under [SECTION] are controlled by [SECTION] and [SECTION] of the [ACT], or that if the landlord is entitled to possession under the said provisions, sub - tenant's rights under [SECTION] must yield. Question, as to what extent, the landlord's right under [SECTION] and [SECTION] are also affected by the protection given to the sub - tenant, did not fall for, and have not received consideration, in the above judgment and hence, these observations cannot have any binding effect. I therefore do not think it necessary to refer this matter to a larger Bench.
10. I find some support to my view in the judgment of [ENTITY], J. in , [PRECEDENT] who also found difficulty in agreeing with the above views of Division Bench. Learned Judge has also recorded express dissent therefrom.
11. Rule is accordingly discharged. No order as to costs.
12. Rule discharged.