Case: Hiralal Vallabhram Vs. Kastorbhai Lalbhai &amp; Ors

it has been urged on behalf of the respondents that on the determination of the tenancy by notice on November 30, 1956, the appellant became a tenant-in-chief under S. 14 of the Act, and reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi, (1964) 4 SCR 892 : (AIR 1965 SC 414 ). Section 14 is in these terms:-"Where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, shall, subject to the provisions of this Act, he deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued." The argument is that S. 14 relates to contractual tenancy and the interest of a tenant is determined as soon as a notice determining the tenancy is given, and therefore immediately the period fixed in the notice expires, the contractual tenancy comes to an end, and if there is a sub-tenant he becomes the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. It is therefore submitted that on the determination of the interest of the tenants-in-chief by notice on November 30, 1956 the appellant became a tenant by virtue of S. 14 and therefore it was unnecessary to order ejectment of the tenants-in-chief. Reliance in this connection is placed on the decision of this Court in Anand Nivas (P) Ltd., (1964) 4 SCR 892 : (AIR 1965 SC 414 ) where this Court held that S. 14 contemplated sub-tenancies created by a contractual tenant while the contractual tenancy was in existence, it did not take in the case of a sub-tenancy created by what may be called a statutory tenant who had only the right to remain in possession under S. 12 (1) of the Act after the determination of the contractual tenancy until ejected by suit on any of the grounds mentioned in S. 12 or S. 13. No further proposition is laid down in that case and it does not support the contention on behalf of the respondents that as soon as a notice is given determining a contractual tenancy, the sub-tenant of the contractual tenant who was there from before has to be deemed a tenant under S. 14 from the date the notice expires. If anything the following observation in the said case at p. 917 goes against the contention of the respondents, namely :-"The object of S. 14 is to protect subtenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in S. 13 does not in all cases destroy the protection to the sub-tenants. Learned counsel for the respondents however contends that the words "is determined used in S. 14 are analogous to the determination of tenancy by notice under S. 111 (h) of the Transfer of Property Act (No. 4 of 1882) and all that S. 14 requires is that there should be determination of the tenancy under S. 111 (h)of the Transfer of Property Act. We are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside. 8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. We do not think it necessary to decide the question of jurisdiction of the High Court under S. 115 of theCode of Civil Procedure in the circumstances of this case, for we have come to the conclusion that though the question of jurisdiction had not been urged before the High Court it stares one in the face on the judgment of the appellate court. We are satisfied that the appellate court had no jurisdiction to pass a decree for ejectment against the present appellant in the manner in which it did so. We have already indicated that the appellate court took the curious view that the present appellant was a trespasser. Now this was no ones case in the present litigation. The respondents alleged that the present appellant was a sub-tenant. The present appellant contended that he was an assignee while two of the tenants-in-chief contended that he was their partner. In the circumstances it is curious that the appellate court came to the conclusion that he was a trespasser. But assuming that that finding, if correct, cannot be assailed in revision under S. 115 of theCode of Civil Procedure, a question of jurisdiction of the appellate court to pass a decree for ejectment immediately arises on the finding that the present appellant was a trespasser. The suit was brought in the court of the Judge Small Causes under S. 28 of the Act. The section gives power to the Small Cause Court to proceed to evict a tenant (along with whom a sub-tenant would also go) provided the provisions contained either in S. 12 or S. 13 of the Act are satisfied. But when the appellate court held that the present appellant was a trespasser, there was no jurisdiction under the Act to pass a decree for ejectment against a trespasser. Such a decree against a trespasser could only be passed by a regular civil court in a suit brought under theCode of Civil Procedure. It could not be passed by a Judge Small Cause Court before whom a suit for eviction as a special forum is maintainable under S. 28 of the Act. Therefore when the appellate court after holding that the appellant was a trespasser went on to order his eviction on that ground it had no jurisdiction to do so in a suit brought under S. 28 of the Act. It is true that the appellate court was the court of an Extra Assistant Judge, but its jurisdiction could not be wider than that of the trial Court and it would be equally circumscribed within the four comers of S. 28 of the Act. Though this point was not raised in the High Court, it is so obvious that we have permitted the appellant to raise it before us. We are of opinion that on the finding that the appellant was a trespasser, the appellate court had no jurisdiction to order his ejectment in a suit brought under S. 28 of the Act7. There is another aspect of the matter which equally affects the jurisdiction of the appellate court and which also does not seem to have been urged in the High Court. We have already indicated that there is nothing to show in the appellate court judgment that it ordered the ejectment of the tenants-in-chief. If it did not do so, it could not in a suit brought by the landlord order the ejectment of the sub-tenant, which the present appellant had been held to be by the trial Court. It is not disputed that a landlord cannot sue a sub-tenant alone for eviction, he has to sue the tenant, and if he, succeeds against the tenant, the sub-tenant would be ejected along with the tenant-in-chief unless he can take advantage of any provision of the Act. But if the tenant-in-chief is not ordered to he ejected and there is no such order by the appellate court, it follows that the appellate court had no jurisdiction to order the ejectment merely of the sub-tenant assuming that the appellant was a sub-tenantWe are of opinion that in the context of the Act this is not the meaning to be given to the words "is determined for any reason". These words in the context of the Act mean that where the interest of a tenant comes to an end completely, the pre-existing sub-tenant may, if the conditions of S. 14 are satisfied be deemed to be a tenant of the landlord. The interest of a tenant who for purposes of S. 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which S. 12 has given to him and is no longer even a statutory tenant. In other words S. 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under S. 28 on any of the grounds in S. 12 or S. 13. Till that event happens or till he gives up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of S. 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction for the appellate court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub-tenant, namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord. Therefore, as the tenants-in-chief have not been ejected, the appellate court had no jurisdiction to eject merely the sub-tenant. Thus the judgment of the appellate court is without jurisdiction on this ground in the alternative and is liable to be set aside8. As to the ground on which the High Court upheld the judgment of the appellate court, though it did not agree with the reasons given by that court it is enough to say that there was a concurrent finding of the trial Court as well as the appellate court that no arrears were due. In the circumstances we do not see why the High Court should have interfered with a concurrent finding of fact. It is also remarkable that there is no decree even by the High Court against the tenants-in-chief, for all that the High Court did was to dismiss the revision petition.