Case: Pooran Chand Vs. Motilal &amp; Others

2. The facts may be briefly stated. The building situate at No. 41, Purani Mandi, Ajmer, consists of a large number of rooms, and the respondents are its owners. On October 13, 1935 the said building was taken on lease by the appellants father for a period of one year on a rent of Rs. 50/per month. On July 10, 1950 the respondents gave a lease of the said building in favour of the appellant for a period of one year on a rent of Rs. 65/per month. On August 8, 1952 a fresh lease was executed in favour of the appellant on an enhanced rent of Rs. 70/per month. Under the said lease the tenancy was to commence from August 1, 1952. On June 27, 1954 the respondents issued a notice to the appellant, through their Advocates, calling upon him to vacate the premises by midnight of July 31, 1954August 1, 1954. In that notice it was alleged that the appellant was in arrears of rent and that he had also sublet the property. In the reply notice the appellant promised to pay the arrears of rent as early as possible, but stated that he had all along been subletting portions of the premises to others, except the portion under his occupation. As the appellant did not comply with the terms of the notice, the respondents filed on August 2, 1954 Civil Suit No. 762 of 1954 in the Court of the Subordinate Judge, First Class, Ajmer, against the appellant for eviction, for recovery of arrears of rent and for other reliefs. The plaint was later on amended. The appellant contested the suit on various grounds and particularly on the ground that it was not maintainable. It may be mentioned that in the written statement the fact that the premises were sublet to tenants was not denied. The learned Subordinate Judge decreed the suit, holding that the notice was valid and that the appellant was liable to be evicted under S. 13 (1) (b) of the Delhi and Ajmer Rent Control Act, 1952 (XXXVIII of 1952), hereinafter called the Act, as he had sublet portions of the premises without the consent in writing of the landlord. On appeal the Senior Civil Judge, Ajmer, allowed the appeal. He held that the notice issued to the appellant was short by 24 hours and that he had no right to sublet the premises without the written consent of the landlord, though there werein the premises when the appellant took the lease. On second appeal, the High Court allowed the appeal and restored the decree of the trial court. The High Court held that the notice complied with the provisions of S. 106 of the Transfer of Property Act, 1882, and that, in any event, as the tenancy expired by mere efflux of time, no notice was necessary. Hence the present appeal.

Reasoning:
7. In this view, the High Court was certainly right in setting aside the decree of the Civil Judge for the Civil Judge refused to pass an order of eviction on a wrong legal basis that the appellant was a monthly tenant, ignoring the express term in the lease deed itself. As the decree was not "according to law", the High Court in exercise of its jurisdiction under S. 35 of the Act, was certainly within its rights to set aside the saidcounsel for the appellant contends that the provisions of the said section are an additional protection to a tenant and that they do not enable the landlord to dispense with a statutory notice before filing a suit for eviction, and in the present case the notice given did not comply with the provisions of S. 106 of the Transfer of Property Act, 1882.It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied that the term of the tenancy had expired by efflux of time, and, therefore, no question of statutory notice would arise. But the learned counsel contends that this point was not raised either in the plaint or in the lower courts, but was raised for the first time before the High Court and that as the question is a mixed question of fact and law, the High Court went wrong in allowing it to be raised for the first time before it. We cannot say that this point was not raised in the plaint. The suit was filed for eviction, and the ground for eviction wasviz., the rent was not paid and that the appellant had sublet the premises. In the plaint it was not stated that the tenancy was a monthly tenancy, on the other hand, the respondents alleged in the plaint that the appellant was their tenant under the lease deed dated August 8, 1952, and they filed, along with the plaint the said lease deed the terms whereof clearly show that the term of the lease was for one year. The appellant admitted those facts. It is, therefore manifest that the appellant never denied that the term of the lease was not for one year. The High Court was, therefore, justified in considering the point, because the validity of the notice depended upon the term of the tenancy and also because the question of the term of the tenancy depended solely on the construction of the lease deed. On the basis of the lease deed the High Court held that the term of the lease is only for one year and it had expired by efflux of time. The document says that the house had been taken on rent for one year by the first party and ends thus, "if the rent falls into arrears then the second party shall be jointly and severally entitled to eject me namely the first party before the expiry of the term of tenancy and realise the rent due."It is, therefore, manifest that the lease was for a period of one year and that it is not a monthly tenancy. As the term fixed under the deed had expired, the appellant was not entitled to any statutory notice under Section 106 of the Transfer of Property Act, 1882.6. Even so it is contended that the appellant had not sublet the premises within the meaning of S. 13(1)(b)(i) of the Act. It is said that theapplies only to a case ofcreated for the first time after the lease was taken and does not cover a case whether there was already aand a newwas inducted when the previousvacated it. This conclusion is sought to be drawn from the wordsassigned or otherwise parted with the possession" and it is argued if possession had already been parted with by way ofand what was done was only to substitute another in the place of the earlierse is not attracted. There are no merits in this contention Section 13(1)(b)(i) clearly says that if a tenant, without obtaining the consent of the landlord in writing has, after the commencement of this Act,assigned or otherwise parted with the possession of, the whole or any part of the premises, he is liable to be evicted. Here, admittedly after the lease deed of 1952 the appellant has sublet some of the rooms of the building to others without obtaining the written consent of the landlord. The fact that there werein the said portions could not conceivably be of any help to the appellant, because the newwere not holding under the earlierbut were inducted by the appellant after the earlierwere terminated. The appellant, having sublet part of the premises without the consent of the landlord in writing, cannot invoke the protection given to him under S. 13 of the Act.