Case: Nand Kishore Vs. Ram Kishan &amp; Anr

2. Appellant-1st defendant is the owner of premises No. 6022, Gali Mandir Wali, Arya Samaj Delhi Ram Saram Das, respondent No. 2 herein, was the tenant of the appellant in respect of the said premises and Ram Kishan Das, respondent No. 1 herein, was a sub-tenant. On January 30, 1959 the appellant obtained a decree for ejectment against the 2nd respondent from the Court of the Subordinate Judge, Delhi. To that suit the 1st respondent, the sub-tenant, was not made a party. When that decree was sought to be executed against the 2nd respondent, the 1st respondent obstructed delivery of possession of the premises on the ground that he, as a sub-tenant, had become a tenant under the provisions of the Act. The executing Court rejected his claim. Thereafter, on May 22, 1962 the 1st respondent filed a suit in the Court of the Senior Subordinate Judge, Delhi against the appellant and respondent No. 2 praying for a decree for a permanent injunction against the appellant and the 2nd respondent restraining the appellant from taking possession of the said premises. The appellant inter alia contended that S. 50 of the Act was a bar to the maintainability of the suit in a civil Court. It is not necessary to state the other defences, as nothing turns on them in this appeal .The said plea was rejected in the first instance by the learned Subordinate Judge, on appeal by the learned Senior Subordinate Judge and on Second Appeal by the High Court. Hence the appeal.

Court's reasoning:
To invoke this sub-section three conditions hall he complied with, namely, (i) the premises shall have been lawfully sub-let by the tenant, (ii) the sub-letting shall have been before the commencement of the Act and (iii) such tenant or sub-tenant shall have given a notice to the landlord of the creation of the sub-tenancy within six months of the commencement of the Act and notified the termination of such sub-tenancy within one month of such termination. The dispute referred to in sub-s. (3) of S. 17 is in regard to such sub-tenancy. It is manifest from the provisions of sub-s. (2) that the said provision applies only during the period of subsistence of the tenancy created before the commencement of the Act. But, if the tenancy itself ceased to exist before the commencement of the Act, the said sub-section has no application. If the tripartite relationship of landlord, tenant and sub-tenant had creased to exist before the commencement of the Act, no question of giving notice prescribed thereunder would arise. If sub-s. (2) does not apply to such a case, a dispute raised between them cannot be raised before the Controller under sub-s. (3) of S. 17 of the Act. If that be the construction of sub-ss. (2) and (3) of S. 17 of the Act, S. 18 (1) thereof would not equally help the appellant. Under sub-s. (1) of S. 18 where an order for eviction in respect if any premises is made under S. 14 against tenant but not against sub-tenant referred to in S. 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. This section also applies to a case of subsisting tenancy after the Act came into force. The reference to S. 14 presupposes that an eviction order has been made against the tenant after the Act came into force. The sub-tenant mentioned therein is the sub-tenant referred to in S. 17 and in respect of whose sub-tenancy a notice has been given to the landlord, that is to say a sub-tenant of a tenant during the subsistence of his tenancy. In such a case the sub-tenant becomes a statutorysub-section applies to a case where the interest of a tenant had been determined before the commencement of the Act, but the interest of the sub-tenant was allowed to subsist. In such a case, the sub-tenant shall with effect from the date of the commencement of the Act be deemed to have become, by a statutory fiction, a tenant under the landlord. This situation could arise before the commencement of the Act either because of a statute, contract or a decree. Any dispute raised by such a sub-tenant does not fall under sub-s. (3) of S. 17 of the Act, for, as we have said, the said sub-section applies only to a case where a dispute arises during the subsistence of the main tenancy after the Act came into force. If so, as there is no other provision in the Act under which a dispute in respect of such a sub-tenancy could be decided by the Controller, S. 50 cannot have a bearing on the maintainability of a suit filed in respect of such a sub-tenancy.8. If that be the construction of the relevant provisions of the Act, the 1st respondent is not hit by the provisions of S. 50 of the Act. The landlord by obtaining a decree for eviction against the 2nd respondent put an end to the tenancy before the commencement of the Act. The sub-tenancy of the 1st respondent was not determined by the decree, as he was neither a party to the suit nor his rights were put in issue therein. He can, therefore, claim to be a tenant under S. 18 (2) of the Act. As S. 50 does not apply to him, he can file a suit in a civil Court for declaration of his right thereunder.9. The same result will flow if we look at the matter from a different aspect. Under S. 20 of the Delhi and Ajmer Rent Control Act, 1952, on the eviction of the tenant, the sub-tenant would be deemed to have become a tenant of the landlord. The appellant obtained a decree for eviction against the 2nd respondent on January 30, 1959. The Act came into force subsequently. He had, therefore, acquired a vested right under the Act of 1952. No provision of the Act has been pointed out to us which took away that right. There was also no provision under the Act empowering the Controller to decide a dispute raised in regard to the said right vested in the 1st respondent. If so, it follows that S. 50 of the Act cannot be a bar to the suit filed by the 1st respondent for a declaration of his saiddecision of this Court, therefore, has a limited scope. It has only held that during the prescribed period under S. 15 (3) said Act, no suit would lie in a civil Court. In the present case, the suit was filed in the civil Court beyond the period prescribed.