Delhi District Court
Arjun Lal vs Kultar Sood S/O Sh. Mool Singh on 1 November, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 29/2008
ID No.: 02403C0996642008
Arjun Lal
s/o Sh. Mangha Mal,
in premises No. 60A,
in shop No.1,Ground Floor,
Central Market,
Lajpat Nagar, New Delhi. ... Appellant.
Versus
1. Kultar Sood s/o Sh. Mool Singh,
R/o E284A, East of Kailash,
New Delhi.
2. Seema Sharma
w/o Sh. Shyam Sunder Sharma
R/o E284A, East of Kailash,
New Delhi. ... Respondents.
Instituted on: 03.10.2008
Judgment reserved on: 01.11.2011
Judgment pronounced on :01.11.2011
ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 1 of 14
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as "DRC Act") is directed against judgment dated 29.08.2008 passed by Sh. Amit Kumar, Additional Rent Controller (ARC) in eviction case registered as E714/07 (2005) whereby an eviction order was passed, inter alia, against the appellant in respect of tenanted premises described as mezzanine floor of property no. 60A, Central Market, New Delhi on the ground of subletting under Section 14(1)(b) of DRC Act.
2. The eviction proceedings were directed against the appellant impleaded as respondent no.2 and Seema Sharma, impleaded as respondent no.1. It is admitted case of both sides that Seema Sharma was inducted as a tenant in the demised premises on the basis of a written rent agreement dated 23.09.1981, which came to be proved during trial as Ex. PW 1/2. It is further admitted case that the said tenant Seema Sharma had inducted the appellant as subtenant in the premises in question.
3. Seema Sharma would not contest the proceedings before the ARC after filing her written statement dated 06.08.2005. She would not adduce any evidence during the trial. The ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 2 of 14 proceedings were contested only by the appellant. Seema Sharma has been impleaded as respondent no.2 in the appeal. She has not appeared despite notice.
4. On notice, the respondent no.1 who was the petitioner before the ARC has appeared to resist the appeal.
5. I have heard arguments. I have gone through the record.
6. Almost all the facts in the case at hand are admitted on both sides. It is undisputed that Seema Sharma (hereinafter referred to as the "tenant") was inducted by respondent no.1 (hereinafter referred to as "the landlord") in the suit premises through and by virtue of a rent deed dated 23.09.1981 vide Ex. PW 1/2. It is admitted that it was part of the terms and conditions agreed upon between the two sides that the tenant would be entitled to sublet the premises in favour of another. Specifically, para 4 of the terms and conditions as set out in the said rent agreement would read as under: "4 That the tenant of the second part is free to sublet any part of full of the premises acquired by her as tenant to any subtenant on the terms and conditions as deemed suitable by her."
7. It is admitted case of the appellant as indeed of Seema Sharma ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 3 of 14 in her pleadings that the former was inducted as subtenant by the said tenant in the suit premises. The appellant, therefore, for the sake of convenience shall hereinafter be referred to as "the subtenant".
8. The case of the landlord in the eviction proceedings before the ARC was that the subletting was unauthorised and that the landlord had not been informed about the same, which was pre requisite under the statutory provisions. The tenant as well as subtenant pleaded that there was no cause of action on the plea that the subtenancy had been created within the authority given by the landlord unto the tenant in terms of the rent agreement. It was claimed that the subletting was "with prior consent in writing" of the landlord and, therefore, could not be termed as unlawful. The subtenant in his written statement denied that the subtenancy had not been within the knowledge of the landlord. He further pleaded that there was "no need to give any intimation regarding subletting" since the landlord had "already given permission in writing" to the landlord for such purposes.
9. When the case was put to trial, the appellant examined himself through affidavit Ex. PW 1/A on which he was crossexamined ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 4 of 14 as PW1 at length. On the other hand, the appellant examined himself through his affidavit R2W1/A on which he was cross examined at length as R2W1. As mentioned earlier, the tenant would not lead any evidence either way.
10.What has been noticed by the ARC in the impugned judgment is that there is sufficient material to indicate on record that the landlord had been aware of the subtenant at least since 1998, when petitions had been filed in civil court vide Ex. PW 1/X3 and also in the Rent Court vide Ex. PW 1/X2, the latter seeking eviction on the grounds under Section 14(1)(j) and (k) of DRC Act, wherein the landlord acknowledged being aware of the subtenancy.
11.The short question that came to be raised before the ARC was as to whether the subtenancy in favour of the appellant could be treated as lawful on the touchstone of Section 17(1) and Section 18(1) of DRC Act. The landlord would plead that it was a case of unlawful subtenancy for the reason there was no notice in writing as to the particular subtenant being inducted within the meaning of Section 17(1), his argument being that the consent given in the rent agreement was a general consent which could not operate in favour of the subtenant without a ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 5 of 14 formal notice in writing of the subtenancy. Per contra, the plea of the subtenant has been that the tenancy was lawful and that the landlord having been fully aware, at least since 1998, of subtenancy had joined hands with the tenant to forcibly evict him from the suit premises. He tried to show that there was a notice also given. But then, appearing as R2W1 in his own crossexamination he conceded that there was no notice given to the landlord informing him about the creation of subtenancy.
12.The fate of the case hinges on the provisions contained in Section 17(1) and Section 18(1) of DRC Act which read as under: " 17. Notice of creation and termination of subtenancy. (1) Whenever, after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the subtenant to whom the premises are sublet may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within one month of the date of such subletting and notify the termination of such subtenancy within one month of such termination.
18. Subtenant to be tenant in certain cases. (1) where an order for eviction in respect of any ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 6 of 14 premises is made under Section 14 against a tenant but not against a subtenant referred to in Section 17 and a notice of the subtenancy had been given to the landlord, the subtenant 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."
13.Both sides have relied upon on law laid down by Hon'ble Supreme Court in M/s Girdhari Lal & Sons Vs. Balbir Nath Mathur & others AIR 1986 SC 1499. Reference has been made during the course of argument to certain observations appearing in para 17 and 22 of the said judgment, which may be extracted as under: "17. Bearing these broad principles in mind if we now turn to the Delhi Rent Control Act, it is at once apparent that the Act is primarily devised to prevent unreasonable eviction of the tenants and subtenants from demised premises and unreasonable enhancement of rent. In particular, the purpose of sections 17 and 18 is clearly to protect the subtenants from eviction where a landlord obtains a decree for eviction against the principal tenant. In an action for eviction by a landlord against the principal ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 7 of 14 tenant, the subtenant has no defence of his own under the ordinary law, even if he has been inducted into possession with the consent of the landlord. He has to go with the tenant. He can claim no right to sit in the premises apart and distinct from the right of the tenant. Showing an awareness of the problems of sub tenants, the legislature enacted Ss. 17 and 18 for their protection. The protection was afforded to subtenants who had been inducted into possession with the consent of the landlord. While so extending a protecting hand to the subtenants the legislature wanted to make sure that subtenants who had genuinely obtained the consent of the landlord alone should be entitled to that protection. The legislature wanted to prevent persons who had somehow managed to get into possession, having been inducted into such possession by the tenant or otherwise from putting forward baseless claims that they were inducted into possession with the consent of the landlord. So the legislature while offering protection to a subtenant who has been inducted into possession by a landlord has limited the protection to the subtenant who can establish the consent of the landlord by documentary evidence to which the landlord and the tenant or subtenant are parties. So it is provided that the previous consent of the landlord has to be in writing and that a notice in the prescribed ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 8 of 14 manner has to be given to the landlord by the tenant or the subtenant. The essence of the requirement, therefore, is that the consent of the landlord to the subtenancy and the notice of the creation of subtenancy have to be evidenced by writing. The writing is to be such as to indicate clearly the consent of the landlord to the creation of subtenancy after its creation. The writing relating to the consent and the writing relating to the knowledge (notice) may be by different documents or they may telescope into the same document. Where, as in the present case, the agreement or the letter of the subtenancy in respect of the demised premises is attested by the landlord himself, there can be no question that the landlord has given his previous consent and that he has notice in writing of the subtenancy in respect of the particular premises. The requirement of Ss. 17 and 18 both as regards to his consent and the notice to him are satisfied. There is no magical form in which the consent is to be given nor any charmed form in which the notice is to be sent. As we said, the essence of the matter is that the consent to the sub tenancy and the notice of the subtenancy in respect of the premises must be evidenced by writing signed by the landlord and the tenant or the subtenant. In this view of the matter, the appellant in the present case is clearly entitled to the protection of Ss. 17 and 18 of ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 9 of 14 the Delhi Rent Control Act and he cannot, therefore, be evicted in execution of the decree obtained by Balbit Nath Mathur against Om Prakash & Company. We do not consider it necessary to embark into a discussion of the two cases cited before us Jagan Nath V. Abdul Aziz, AIR 1973 Delhi 9 and Murari Lal V. Abdul Ghafar, ILR (1974) I Delhi 45.
22. In the normal cases a subtenant under the Act can get relief under the provisions of the Act only if he satisfies the twin conditions laid down in S. 17, viz. that there must be the previous consent in writing by the landlord of the creation of the subtenancy and a notice in the prescribed manner by the subtenant of the creation of the subtenancy to the landlord within one month of the date of such creation. It is only when these two conditions are satisfied that the consequences mentioned in S. 18(1) will follow. ............................................"
(Emphasis supplied)
14. The main thrust of argument on behalf of the appellant is that it is inconceivable that the landlord would not be aware of the subtenancy created by the tenant in his favour vide rent agreement dated 28.05.1984 which has been proved during the trial as Ex. RW 1/1 for the reason it is an admitted case that the ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 10 of 14 husband of the appellant had been a partner of the landlord in another business and both of them were residing in the same building. It is the submission of the appellant that it is a case of collusion between the tenant and the landlord just to oust the subtenant who has entered into the subtenancy lawfully within the knowledge and with the consent of the landlord, for which purpose reference is made to the original tenancy agreement dated 23.09.1981, particularly to the relevant clause which has already been extracted above.
15.During the course of arguments, the counsel for the appellant referred to Atma Ram Properties (P) Ltd. Vs. Allied Motors (P) Ltd. 176(2011) DLT 436 which was a case referable to Section 17(2) of DRC Act which is parimateria similar to the fact situation covered by Section 17(1) of DRC Act, the only difference being that, unlike in the latter case, in case Section 17(2) the subtenancy would relate to post legislation period.
16.In the case of Atma Ram Properties (supra), contention was raised based on the use of the expression "may" as against the expression "shall", in the context of requirement of notice to be served on the landlord within the period of six months of the ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 11 of 14 DRC Act coming into force. Undoubtedly, in that case a single bench of Hon'ble High Court took a view that this would indicate that the service of notice in writing was not mandatory. But then, the said judgment would not refer to the law laid down by Hon'ble Supreme Court in the case of Girdhari Lal & Sons (supra), the spirit of which is to the contrary. Moreover, in another similarly placed case of Chanderwati Vs. Gianwati 2004 RLR 129(Note), another single bench of Hon'ble High Court, referring to Girdhari Lal & sons (supra), held that notice under Section 17(2) of DRC Act is "mandatory". In the case of Chanderwati (supra), the subtenants were held not entitled to be treated as direct tenant of the landlord for the reason no such notice had been served.
17.In the present case, knowledge of the subtenancy can be attributed unto the landlord since 1998 when reference to this fact came to be made in the pleadings of the civil suit and the eviction case was filed. But only because of the other relationship between the tenant on one hand and the landlord on the other, inference of collusion or knowledge antecedent to 1998, cannot be drawn.
ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 12 of 14
18.Even otherwise, going by the spirit of law laid down in Girdhari Lal & sons (supra), mere knowledge of the creation of subtenancy cannot help the appellant. Hon'ble Supreme court in the case of Girdhari Lal & sons (supra) clearly laid down that the notice in the "prescribed manner has to be given"
to the landlord by the tenant or subtenant. The expression "has to be given" cannot be read in any manner other than one to be indicative of requirement of notice in writing to be mandatory. As per observations in Girdhari Lal & sons (supra), extracted above, mere consent in writing is not sufficient.
19.Undoubtedly, in the rent agreement of 1981, the landlord herein had given consent in writing of subtenancy to be created. But then, the said consent was general in terms. The requirement of law is for notice of the particular subtenancy to be given in writing. Admittedly, no notice in writing of the particular sub tenancy was ever given.
20.The law refers to notice to be given in the prescribed manner. Rule 22 of DRC Rules, 1959, stipulates that such notice required to be served, shall be served by delivering it to the person or by forwarding it to the person by registered post ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 13 of 14 acknowledgement due. Admittedly, neither the notice in writing was ever issued nor served in the prescribed manner.
21.In the above facts and circumstances, I do not find any substance in the appeal. The view taken by the ARC cannot be faulted. The appeal is, therefore, dismissed.
22.The trial court record be returned with copy of this judgment.
23. File of the appeal be consigned to Record Room. Announced in open Court today on this 1st day of November, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
ARCT No. 29/08 Arjun Lal Vs. Kultar Sood & anr. 14 of 14