A

B

c

MRS. KAP IL BHARGA VA AND ORS.

v.

SUBHASH CHAND AGGARWAL AND ORS.

AUGUST 21, 2001

[A.P. MISRA AND U.C. BANERJEE, JJ.]

Rent Control and Eviction :

Delhi Rent Control

Act, 1958 :

Sections

2(1), 14(1) (b) and (d), 16(1), 17(2) and 18-Tenant-lnduction

of sub-tenant without the consent of landlord-Notice under Section l 7(2), not

served-Eviction decree against tenant-Sub-tenant's claim for

protection­

Entitlement of-Held, when a tenant inducts a sub-tenant without the consent

D of the landlord, no protection from eviction could be claimed by such sub­

tenant.

E

F

G

H

Sections 17(2) and 18-Sub-tenant-lnduction of-obligation to sen1e

notice on landlord-Necessity of-Held, is not mere procedural but confers a

substantive right

on the sub-tenant against eviction under Section 18.

Sub-tenant-Payment of rent by-Presumption of-Held, in the absence

of any specific evidence that the rent was paid by sub-tenant on his own

behalf. such payment would

be treated as payment on behalf of the tenant.

Words and

Phrases :

"Tenant"-Meaning of in the context of Section 2(1) of the Delhi Rent

Control Act,

1958.

"Lawfally sub-let"-Connotation of in the context of Section 17 (2) of the

Delhi Rent control

Act, 1958.

Respondent-landlord filed an eviction petition under

Section 14(1 )(b ),

(d) and (e) of the Delhi Rent Control Act, 1958 against the tenant and the

sub-tenant for bonafide requirement. Appellants were the legal representatives

of the sub-tenant. The sub-tenant had been inducted into the premises since

before 9.6.1952 without the written permission of the landlord and no notice

12

KAPIL BHARGAVA v. S.C. AGGARWAL 13

as contel)lplated under Section 17(2) of the Act was served on the landlord. A

• The Rent Controller dismissed the eviction petition holding that since the

original landlady died during the pendency of eviction petition, the question

of bonafide need under Section 14(1) (e) of the Act did not survive; that since

the sub-tenant was

in possession of the premises in question since before

9.6.1952,

he would be deemed to be sub-tenant under Section 16(1) of the Act B

and, therefore, the case do not fall under Section 14 (1) (b). Landlord

unsuccessfully filed an appeal before the Rent Control Tribunal.

On second

appeal, High

Court allowed the eviction petition under Section 14(1) (d)

holding that the tenant was not residing

in the premises for a period of six

months immediately before the date of filing of the eviction petition.

Aggrieved, legal representatives

of the sub-tenant have filed the present C

appeal.

On behalf of the appellant, it was contended that Section 2(1) of the

Act defining "tenant" includes a sub-tenant and hence possession of the

premises

by sub-tenant lawfully inducted under Section 16(1) of the Act

amounts to possession of the premises

by tenant and hence he could not be D

evicted under Section 14(1) (d) of the Act; that since the sub-tenancy was

created before 9.6.1952 and the appellant became a deemed tenant

i.e. a lawful

sub-tenant by virtue of Section 16(1) of the Act, notice under Section 17(2)

would become a mere formality and question of eviction under

Section 14(1)

(d) would not arise; that since the landlord was accepting the rent from the

E

sub-tenant, compliance of section 17(2) of th.e Act would at best be said to be

a mere formality.

Dismissing the appeal, the Court

HELD :

1. When a tenant inducts a sub-tenant without written consent F

ofa landlord, he makes himself liable for eviction under Section 14(1) (b) and

no protection to such sub-tenant would arise for his eviction in case of a decree

against a tenant.

It is true that a sub-tenant is included within the definition

of tenant, but it is for the purpose of conferment of rights and obligations on

such sub-tenant wherever statute requires under various provisions of an Act,

of that which is conferred on a tenant. But this would have no application G

where statute itself treats both as two separate entities as is incorporated in

Sections 14(1) (b), 16, 17 and 18 of the Act.

116-G-H]

2. A conjoint reading of Sections 16, 17 and 18 makes it clear that a

sub-tenant falling under Section 16(1)

is deemed to be a lawful sub-tenant

even without written consent of the landlord. But section 17(2) casts

an H

14 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A obligation on such sub-tenant to give notice to the landlord under sub-section

(2) within six months ofthe commencement of the Act. The legislature has

used

in sub-section (2) the words "lawfully

sub-let". So, even if the appellant

is a lawful sub-tenant by virtue of Section 16(1), still an obligation is cast on

such lawful sub-tenant to serve a notice on the landlord for gaining a right

B under Section 18. Notice under Section 17(2) cannot be construed as a mere

procedure,

in fact, it confers a substantive right on sub-tenant. Thus, unless

notice under

Section 17(2) is served by sub-tenant, he cannot take the benefit

of Section 18 and any decree passed under Section 14 against a tenant is

executable against the sub-tenant. [20-E-FJ

C 3. rt cannot be said that since the landlord was accepting rent from his

sub-tenant, compliance of Section 17(2) would be a mere formality. Neither

there

is any finding by any Court nor any evidence pointing out that after

the tenant

left, rent was paid by sub-tenant on his own behalf and not on behalf

of the tenant. A person

in possession may continue to

live and continue to

pay rent which would be payment on behalf of the tenant, unless specific

D evidence is led that the incumbent in possession started paying rent as sub­

tenant, receipt issued as sub-tenant or there exists any document of this nature.

[20-G-H; 21-A)

E

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5593 of

2001.

From the Judgment and Order dated 28.2.2000 of the Delhi High Court

in SAO 274/83.

M.L. Varma and Ms. Rekha Pandey for the Appellant.

F G.L. Sanghi, Ravi Chand Garg, Randhir Singh Jain and Anand Agarwal

G

for the Respondents.

The Judgment

of the

Court was delivered by

MISRA, J. Leave granted.

This appeal by the sub-tenant seeking quashing of the judgment and

order dated 28th February, 2000 by the High Court in second appeal from

order by which the landlord's appeal was allowed for a decree of eviction.

The question

in issue is:

H Whether an eviction order passed under

clause ( d) to proviso to sub-

KAPIL BHARGAVA v. S.C. AGGARWAL [MISRA, J.] 15

section (I) of Section 14 of the Delhi Rent Control Act, 1958, on the face A

of the finding recorded that the appellant is a lawful sub-tenant in respect of

'~ the premises since before 9th June, 1952 would be valid.

This entails interpretation

of

Sections 16, 17 and 18 of the Act.

In 1974 Rama Rani and her son Sher Bahadur the original landlord B

filed an eviction petition in respect of the premises in question under Section

14(l)(b),(d) and (e) of the said Act against Murli Manohar Lal the tenant and

M.L. Bhargava, the sub-tenant, the appellants are ihe legal representative

of

the said sub-tenant. The said M.L. Bhargava was the brother-in-law of the

said tenant. The appellant case is, the sub-tenant was residing

in the premises C

in question with his family since June, 1945 and with the consent of the

landlord continued to reside therein even after the transfer

of the said tenant

Murli Manohar Lal from Delhi.

On the other hand landlord case is that the

tenant had sub-let and parted with the possession

in favour of the said M.L.

Bhargava without written permission of the landlord. No notice as

contemplated under

Section 17 of the said Act was served by the sub-tenant D

on the landlord. Neither tenant nor any member of his family is residing

therein for a period

of more than six months before filing this eviction petition

and the premise is required

bona fide for personal need.

The court

of Rent Controller dismissed her eviction petition holding,

since the landlady

Smt. Rama Rani died during the pendency of eviction E

petition hence question of bona fide need under Section 14(1 )( e) does not

survive. Further the said sub-tenant was

in possession of the premises in

question since before

9ih June, 1952, he would be deemed sub-tenant under

Section 16(1) of the Act, hence the case would not fall under Section 14(l)(b).

For ihis reason, even ground under Section 14(1)(d), does not survive as the F

said sub-tenant was a lawful sub-tenant under Section 16( I) of the said Act.

The landlord aggrieved by this filed an appeal before the Rent Control

Tribunal which was dismissed by upholding the findings recorded by the

Rent Controller. Thereafter an appeal was preferred under Section 39 of the

said Act before the High Court. The High Court by means of the impugned G

judgment allowed the appeal but confined the eviction decree against the

tenant under Section J4(J)(d), on the ground that the tenant was not residing

in the premises for a period of six months immediately before the date of

filing of the eviction petition.

This finding is challenged before us by the legal representatives

bf the H

16 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A original sub-tenant.

Learned senior counsel Mr. M.L. Verma for the appellant submits,

High Court erred

in decreeing the eviction suit under Section 14(1 )( d) in

view of concurrent finding recorded by both the courts below that the appellant

was a legally constituted sub-tenant by virtue

of Section 16(1) of the said

B Act. The first submission is, how can a lawful sub-tenant be evicted under

Section

14(1 )( d) in view of the definition of 'tenant' under Section 2(1) and

provision

of Section 16( 1) of the said Act. Next it is submitted, once a tenant

inducts a sub-tenant over the whole

of the premises legally then consequently

the tenant vacates the premises

in question, thus eviction of sub-tenant under

C section 14(1 )( d) on the ground that tenant is not residing for a period more

than six months preceding the application for eviction would not arise. A

sub-tenant on these facts

is not required to prove this as admittedly a lawful

sub-tenant

is already in possession of the whole of the premises in question.

If an interpretation contrary to this is done it will lead to absurdity which is

impermissible under the principles of interpretation of statute. So far the first

D submission, reliance is placed on the definition of 'tenant' as defined under

Section 2(1 ). Relevant portion

is quoted hereunder.

E

"Section 2(1 ): "tenant" means any person by whom or on whose

account

or behalf the rent of any premises is, or, but for a special

contract, would be, payable, and

includes-

(I) a sub-tenant.. ....... ,

Submission is, tenant includes a sub-tenant, hence even

if sub-tenant is

in possession it would mean a tenant to be in possession hence it cannot be

said under Section 14(l)(d) that tenant has vacated the premises. Thus question

F of tenant not residing in the premises in question for the last six months

preceding making

of an eviction petition would not arise, We have no

hesitation to reject this

·submission. It is true a sub-tenant is included within

the definition

of tenant but is for a purpose, for the conferment of rights and

,'11111

obligations on such sub-tenant whereever statute requires under various ,.

G provisions of an Act, of that which is conferred on a tenant. But this would

have no application where statute itself treats both

as two separate entities as

incorporated both

in Section 14(1 )(b) and Section 16, 17 and 18 of the Act.

When a tenant inducts a sub-tenant without written consent

of a landlord, he

makes himself liable for eviction under Section

14(1 )(b ). Can it be said, since

such sub-tenant under the Act could be a tenant,

no question of sub-tenancy

H arises? If he is equated as one with the tenant then they would never be

..

..

KAPIL BHARGAVAv. S.C. AGGARWAL [MISRA, J.] 17

evicted under the Act. Similarly if this is true the question of deemed tenancy A

under Section 16( 1) would never arise. Similar consequence would follow

both under Sections 17 and 18 of the Act, unless both are treated as separate

entity. No protection to a sub-tenant would arise for his eviction

in case of

a decree against a tenant. In other words, these provisions would be rendered

meaningless. This submission

is misconceived. These sections refer specifically B

inter se relationship between a tenant and a sub-tenant which cannot be

termed as one and the same .

Next

it is submitted, since the sub-tenancy was created before 9th June,

1952 the appellant became a deemed tenant, i.e., a lawful sub-tenant which

has been held both by the Rent

Controller and the Rent Control Tribunal, C

thus question of his eviction under Section 14(l)(d) would not arise.

For appreciating this submission, reference to sections 16,

17 and 18 are

necessary which are quouted hereunder: "16. Restriction on sub-letting-{ I) Where at any time before the D

9th day of June, 1952, a tenant has sub-let the whole or any part of

the premises and the sub-tenant is, at the commencement of this Act,

in occupation of such premises, then notwithstanding that the consent

of the landlord was not obtained for such SJ!b-letting, the premises

shall be deemed to have been lawfully sub-let.

(2) No premises which have been sub-let either

in whole or in part

on or after the 9th day

of June, 1952, without obtaining the consent

in writing of the landlord, shall be deemed to have been lawfully

sub­

let.

E

(3) After the commencement of this Act, no tenant shall, without the F

previous consent in writing of the landlord

(a) sub-let the whole or any part

of the premises held by him as a

tenant; or

(b) transfer or assign his rights

in the tenancy or in any part thereof.

(4) No landlord shall claim or receive the payment

of any sum as

premium or pugree or claim or receive any consideration whatsoever

in cash or in kind for giving his consent to the sub-letting of the

whole or any part

of the premises held by the tenant.

G

17. Notice of creation and termination of

sub-tenancy-{ I) Where, H

18

A

B

c

D

E

SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

after the commencement of this Act, any premises are sub-let either

in whole or in part by the tenant with the previous consent in writing

of

the landlord, the tenant or the sub-tenant to whom the premises are

sub-let may, in the prescribed manner, give notice to the landlord of

the creation of the sub-tenancy within one month of the date of such

sub-letting and notify the termination of sub-tenancy within one month

of such termination.

(2) Where, before the commencement of this Act, any premises have

been lawfully sub-let either in whole or in part by the tenant, or the

tenant or the sub-tenant to whom the premises have been sub-let may,

in the prescribed manner, give notice to the landlord of the creation

of

the sub-tenancy within six months of the commencement of this

Act, and notify the termination of such sub-tenancy within one month

of such termination.

(3) Where in any case mentioned in sub-section (2), the landlord

contests that the premises were not lawfully sub-let and an application

is made to the

Controller in this behalf, either by the landlord or by

the sub-tenant, within two months of the date of the receipt of the

notice of sub-letting by the landlord or the issue of the notice by the

tenant or the sub-tenant, as the case may be, the Controller shall

decide the dispute.

18. Sub-tenant to be tenant in certain cases--( 1) 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 and 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

F 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 ..

G

H

(2) Where, before the commencement of this Act, the interest of a

tenant

in respect of any premises has been determined without

determining

the interest of any sub-tenant to whom the premises

either in whole or in part had been lawfully sub-let, the sub-tenant

shall,

with effect from the date of the commencement of this Act, be

deemed to have become a tenant holding directly under the landlord

on the same terms and conditions on which the tenant would have

held from the landlord, if the tenancy had

continued."

'

•

-

KAPIL BHARGAVA v. S.C. AGGARWAL [MISRA, J.] 19

The submission

is, once the appellants are lawful sub-tenants being A

deemed sub-tenants by virtue of Sections 16(1), question of his giving any

notice under

Section 17 would not arise, so also Section 18 would have no

application.

On the other hand learned senior counsel for the respondent Mr. G.L.

Sanghi submits, if no notice is served by such a sub-tenant as contemplated B

under Section 17(2), which has not been served as finally recorded in this

case, the appellant could not resist a decree

of eviction even if passed against

a tenant.

Unless such a notice is served, a decree against a tenant would bind

even a sub-tenant.

We have given our due consideration of these submissions on behalf of C

both the parties. We find

Section 16 refers to the restrictions of sub-letting.

It classifies the cases of sub-letting into three categories. Sub-section (I) of

Section 16 refers to cases where a sub-tenant is inducted by a tenant before

9th June

1952, without the consent of the landlord but is deemed to be a

lawful

if he is in occupation of such premises at the commencement of the D

Act.

Sub-section (2) deals with cases where a sub-tenant is inducted on or

after the aforesaid date, and

if it is without a written consent of the landlord

he

is not treated to be a lawful sub-tenant and sub-section (3) mandates a

tenant, after the commencement

of the Act, not to sub-let any premises without

written consent

of the landlord. The present case admittedly falls under sub­

clause

(I) of Section 16, under which the appellant could claim to be a E

deemed sub-tenant. On one hand it confers on a sub-tenant a statutory right,

on the other hand Section 17(2) cast an obligation on such sub-tenant to

serve a notice on a landlord.

Thus the question which arises for our consideration

is, whether by F

mere declaration of a sub-tenant as deemed sub-tenant, could he resist his

eviction,

if it is against a tenant under

Section 14 without performing the

obligation cast on him under Section 17(2). Sub-section (2) of Section 17

spells out, before the commencement of this Act if any premises have been

lawfully sub-let by the tenant

in the prescribed manner, a sub-tenant is obliged

to give notice to the landlord

of the creation of sub-tenancy with six months G

of the commencement of this Act. Though an attempt was made on behalf of

the appellant before the courts below that such a notice was served on landlord

but this has been disbelieved on facts by the courts below.

So, it cannot be

disputed that

no notice was served by the appellant on the landlord in terms

of sub-section (2) of

Section 17.

H

A

20 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

Submission for the appellant is once a sub-tenant is a lawful sub-tenant

by virtue

of Section 16(1 ), the notice under sub-section (2) of Section I 7

would be a mere formality which

is procedural. Thus its non-compliance

cannot take away his substantive right created under Section 16(1). This

submission misses the purpose for which this sub-section (2)

of Section 17

B is enacted.

On performance of this obligation a right is conferred on a sub­

tenant to become a tenant under Section 18. This service of notice saves a

sub-tenant from eviction even

if a decree of eviction is passed against a

tenant under Section

14 and further confers on such sub-tenant an independent

right

as that of a tenant. Thus notice under

Section 17(2) cannot be construed

as a mere procedural,

in fact it confers substantive right on such sub-tenant.

C

So, a conjoint reading of Sections 16, 17 and 18 makes it clear that a sub­

tenant falling under Section 16(1) is deemed to be a lawful sub-tenant even

without written consent

of the landlord. But

Section 17(2) casts an obligation

on such sub-tenant to give notice to the landlord under sub-clause (2), within

six months

of the commencement of the Act. The legislature has used in

sub­

section (2) the words "lawfully sub-let''. So even if the appellant is a lawful

D sub-tenant by virtue of Section 16(1 ), still an obligation is cast on such

lawful sub-tenant to serve a notice

on the landlord for gaining a right under Section 18. This as we have said 'is as a protective measure in favour of a

sub-tenant. So, the submission that by mere declaration as lawful tenant

under Section 16(1), no decree for eviction is enforceable against the sub-

E tenant has no merit and is hereby rejected. Hence we hold, unless notice

under sub-section (2)

of

Section 17 is served by the sub-tenant, he cannot

take the benefit

of

Section 18 and any decree passed under Section 14 against

a tenant

is executable against a sub-tenant.

The next and the last submission

is that the landlord was not only

F aware of the fact that it is not the tenant but the sub-tenant is residing

exclusively

in whole of the premises, since before 9th June 1952 and landlord

was accepting the rent from this sub-tenant hence compliance

of

Section

17(2) could at best be said to be a mere formality. This submission has also

no merit. Neither there

is any such finding by any courts nor any evidence

G pointed out that after the tenant left, the rent was paid by the" sub-tenant on

his own behalf and not on behalf

of the tenant. A person in possession may

continue to live and continue to pay rent which would be payment on behalf

of the tenant, unless specific evidence led that the incumbent in possession

started paying rent as sub-tenant, receipt issued

as sub-tenant or there exist

any document

of this nature. We have not been shown any such plea, evidence

H or any finding by any of the courts below in this regard.

-

KAPIL BHARGAVAv. S.C. AGGARWAL [MISRA, J.] 21

For the aforesaid reasons and for the findings recorded by us we find A

the present appeal has no merit and is accordingly dismissed. Costs on the

parties.

S.V.K. Appeal dismissed.