Delhi District Court
M/S. Gobind Parshad Jagdish Parshad vs Canara Bank on 20 January, 2023
IN THE COURT OF SH. SANJAY GARG - I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI
RCT No. 04/2022
M/S. GOBIND PARSHAD JAGDISH PARSHAD
REGISTERED PARTNERSHIP
THROUGH SHRI RAM KISHAN
REGISTERED PARTNER
INDRA PALACE, CONNAUGHT PLACE
NEW DELHI.
......APPELLANT/ LANDLORD
VERSUS
1. CANARA BANK
112, J. C. ROAD
BANGALORE
ALSO AT :
38, ANSAL TOWER,
7TH FLOOR, NEHRU PLACE,
NEW DELHI.
2. SH. RAJINDER DHAWAN, ADVOCATE
H-61, GOBIND MANSION,
CONNAUGHT CIRCUS
NEW DELHI - 110001.
3. H. S. AHUJA & CO.
H-61, GOBIND MANSION,
CONNAUGHT CIRCUS
NEW DELHI - 110001.
4. G. K. ARORA & CO.
CHARTERED ACCOUNTANT
H-61, GOBIND MANSION,
CONNAUGHT CIRCUS
NEW DELHI - 110001.
RCT No. 04/2022
M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 1 of 39
5. UNITED INDIA INSURANCE CO. LTD.
H-61, GOBIND MANSION,
CONNAUGHT CIRCUS
NEW DELHI - 110001.
6. CANARA BANK EMPLOYEES UNION
THROUGH THE PRESIDENT / SECRETARY
H-61, GOBIND MANSION,
CONNAUGHT CIRCUS
NEW DELHI - 110001.
......RESPONDENTS/TENANTS
Date of filing of Appeal : 11.03.2016
First Date Before This Court : 02.09.2022
Arguments Concluded : 09.01.2023
Date of Decision: 20.01.2023
ORDER
1) Vide this Appeal, the Judgment of the Ld. Addl. Rent Controller, New Delhi dated 11.02.2016 has been impugned. Vide this Judgment, Eviction Petition filed by the Appellant under Section 14 (1) (b) of the Delhi Rent Control Act (hereinafter referred as the Act), for eviction of the premises i.e. 1st Floor of H-61, H Block, Gobind Mansion, Connaught Circus, New Delhi stated to be in possession of the Respondents, was dismissed.
2) Shorn of the details, the brief facts of the case are that the Appellant is the owner and landlord of property bearing No. H-61, H Block, Gobind Mansion, New Delhi (hereinafter referred to as "suit property"). It is a non- residential property and Respondent No. 1 is the tenant of the suit property. The suit property comprises 3000 sq. ft. of RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 2 of 39 the office flat on first floor. Although the tenancy is that of Respondent No.1 but premises is illegally occupied by Respondents No. 2 to 6. Respondent No.1 is paying rent of Rs.575/- per month besides electricity and water charges which are paid directly. The premises was let out in 1944 to Pratap Bank Ltd. which amalgamated with Lakshmi Commercial Bank Ltd. w.e.f. 10.12.1961. The said bank was further amalgamated in Canara Bank w.e.f. 23.08.1985. No rent deed was executed between appellant and Canara Bank. The premises was illegally and unauthorizedly sublet to Respondents No. 2 to 6 without the consent in writing or otherwise of the appellant. Respondent No. 2 is paying Rs.180/- per month, Respondent No. 3 is paying Rs. 165/- per month, Respondent No. 4 is paying Rs. 80/- per month, Respondent No. 5 is paying Rs.187.50 and Respondent No. 6 is paying Rs.115/- per month, to Respondent No. 1. Appellant got this information in response to RTI application filed with Respondent No. 1. All the sub-lettees i.e. Respondents No. 2 to 6 are in exclusive possession of the suit property occupied by them. Respondent No. 1 is not carrying any business in the suit property and is not in possession of any portion of the premises. Respondent No. 1 has also not paid rent w.e.f. January 2008 @ Rs.575/- per month and is a defaulter. The suit property was initially let out in 1944 by M/s. Gobind Parshad Jagdish Parshad, HUF firm which remained HUF upto 31.12.1949, when it was disrupted and partnership in the name and style of Gobind RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 3 of 39 Parshad and Jagdish Parshad came into existence w.e.f. 01.01.1950. In the background of these facts, it is prayed that eviction order be passed in favour of the petitioner (appellant herein) and against the respondents regarding the suit property.
3) Respondent No. 1 has taken the plea that Respondents No. 2 to 6 are using different portions of the suit property as licensee, well within the knowledge of the Petitioner/ Landlord for the last over 12 years from today. The legal possession of the suit property continues to exclusively vest with it and the Petitioner has deliberately not filed the Lease Deed dated 27.03.1944 as the said Lease Deed had conferred upon it a right to sublet or part with the possession of the tenanted premises or any part thereof. Respondents No. 2 to 6 are using different portions in the suit property well within the knowledge of the Petitioner/ Landlord and Petitioner has been unequivocally accepting the rent from the Respondents without any demur and objections. Clause 4 (a) of the Lease Deed dated 27.03.1944 confers tenant to sublet or part with the possession of any part thereof. There is no subletting, assignment of tenancy rights or parting with the tenanted premises or any part there of by it in favour of the Respondents No 2 to 6. Respondents No. 2 to 6 are paying license fees by way of compensation for using the portion of the property and mere description of such compensation is of no consequence.
4) Respondents No. 2 to 4 have taken plea that tenancy was RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 4 of 39 created vide written agreement between the Petitioner/ Landlord and Hans Raj Gupta and Pratap Bank as tenant and the said agreement contains right to creation of sub- tenancy to the tenant. All the documents are in possession of the Petitioner and Respondent No. 1 and they have deliberately not filed the same and concealed the material facts from this Court. Petitioner is receiving rent from so called sub-lettee and had been signing the receipt/ vouchers. The Eviction Petition is not maintainable as they are recognised sub-tenants in the premises firstly, on account of acceptance of rent on account of creation of sub-tenancy by the landlord from the tenants, secondly, the Petitioner/ Landlord was aware of this sub-tenancy, which are for the last more than 50 years and had accepted rent through the tenants. The landlord has acquiesced in such sub-tenancies. Petitioner has deliberately concealed the material facts and has withheld from the Court the Lease Deed/Rent Deed executed between the Petitioner as Landlord and Hans Raj Gupta and Pratap Bank Limited as tenants. They are in possession of the premises much prior to 10.12.1961 when Pratap Bank Limited was in existence.
5) Respondent No. 5 has denied that premises has been illegally sublet to it. It is diligently paying the rent without any default. It is denied that Respondent No. 1 has illegally and unauthorizedly sub-let, assigned or parted with the possession of the premises to it.
6) Respondent No. 6 has denied that the suit premises has RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 5 of 39 been sub-let, assigned or parted with by the Respondent No. 1 in its favour. It has been using the premises as mere licensee and there is no element of sub-letting, parting with the possession of the suit premises in suit or any part thereof by the Respondent No. 1 in its favour. There exist no relationship of lessor or lessee between the Respondent No. 1 and Respondent No. 6.
7) Petitioner in his replication, on the written statements filed by the Respondents, has reaffirmed its assertions, as contained in the petition and has denied that the Respondents No. 2 to 6 are licensee of the Respondent No. 1 and he had knowledge and had accepted this sub- tenancy.
8) Petitioner in support of its case examined Sh. Ram Krishan as PW1, who deposed regarding the facts as contained in the petition and relied upon following documents :
a) Certified copy of "Form A" of Registrar of Firms, Ex.PW1/1;
b) Site plan of the premises, Ex.PW1/2;
c) Original letter dated 07.02.2008 from Canara
Bank / Respondent No. 1 sending the rent to the petitioner, Ex.PW1/3;
d) Memos from respondent no.1 sending the rent to the petitioner, Ex.PW1/4 & Ex.PW1/5;
e) Copy of letter dated 10.10.2009 sent alongwith signature card, duly signed and stamped alongwith photographs of respective signatures, Ex.PW1/6;
f) copy of account opening form dated 01.12.1977 of the petitioner, Ex.PW1/7;
g) Copy of information obtained under RTI from Respondent No.1, Ex.PW1/8;RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 6 of 39
h) Letter dated 21.07.2009 of Respondent No. 1 in response to letter of petitioner, Ex.PW1/9;
i) Copy of notice dated 25.07.2009 to Respondent No.1 through counsel Sh. Vinod Kumar Srivastava is Ex.PW1/10, Postal receipts, Ex.PW1/11 and Ex. PW1/12 and AD Card is Ex.PW1/13.
The witness was duly cross examined on behalf of respondents no.1 to 4.
9) Respondent No. 1 examined Sh. Parmesh Lal, Senior Manager as RW1 and Sh. Heera Lal from Preservation Assistant, Department Archives as RW2 in support of its case. RW1 also relied upon the copy of lease deed dated 27.03.1944, Ex.PW1/R2, put to PW1 during his cross examination on behalf of respondent no.1. RW2 produced the record of Volume No.2319 Book I wherein at page no.345-363 document no.1193 is registered on 12.05.1944.
10) Respondent No. 2 examined himself as RW3. Sh. S. S. Kalra, one of the partner of Respondent No. 3, deposed as RW4. Respondent No. 4 examined himself as RW5 (inadvertently also mentioned as RW4). They have also relied upon the documents Ex.PW1/R2, Ex.PW1/R3 and Ex.PW1/R4.
11) Sh. Lalit Kumar, Senior Branch Manager of Respondent No. 5 appeared as RW5/1.
GROUNDS OF CHALLENGE
12) The first challenge posed by the Appellant to the impugned order is that Ld. Addl. Rent Controller has failed to consider the fact that the Lease Deed Ex. PW-1/R-2 was only for a RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 7 of 39 period of four years from 01.04.1944 to 31.03.1948 and same clearly barred the tenant from sub-letting or parting with the possession without the previous written permission of the landlord, which would not be unreasonably withheld. The Ld. Trial Court has erred in holding that Respondent No. 1 had inducted the Respondents No. 2 to 6 in pursuance to Lease Deed Ex.PW-1/R-2 and Rent Receipt Ex.PW-1/R2-4/1 and all the documents show that the Appellant had given consent to the said sub-tenancy. The legal requirement of proving the case of sub-tenancy under the West Bengal Tenancy Act is different from one mentioned in Delhi Rent Control Act and Ld. Trial Court has failed to appreciate the law cited by the Appellant in this regard. The Ld. Addl. Rent Controller has erred in holding that the Lease Deed coupled with the rent receipts or acceptance of increased rent is on account of lawful sub- letting as Appellant has never given its consent to the Respondent No. 1 for sub-letting.
PLEA OF RESPONDENTS
13) Respondent No. 1 in its reply has denied that Ld. Addl. Rent Controller has erred by mis-interpreting the Lease Deed Ex. PW-1/R-2 as it is an admitted document which has laid down the terms and conditions on which premises was let out to the Respondent No. 1 including the permission to sub-let or part with possession of the premises or any part thereof and Respondents No. 2 to 6 are using the part of the suit premises as licensee being inducted by the Respondent RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 8 of 39 No. 1 and their possession and user is lawful. It has amply established on record that it had not effaced itself from the tenanted premises and retained the legal and de-jure possession of the premises with itself. Ld. Addl. Rent Controller has rightly held that the Appellant had accepted the conditions of the Lease Deed by accepting increase in rent thereby giving its consent. Ld. Addl. Rent Controller has rightly placed onus on the Appellant and the Appellant is required to stand on its own legs to prove the allegations made in this Eviction Petition. The impugned order is well reasoned and there is no infirmity in the same and hence appeal is liable to be dismissed.
14) Respondents No. 2 to 4 have denied that there was any prohibition in the Lease Deed, to the tenant, from sub- letting, assigning or parting with the possession of the premises. Rather, whole of the clause, if read, clearly indicates that in case such permission if granted, the rent to be received from the sub-lessee shall belong to the owners. Appellant has unequivocally admitted the voucher Ex.PW1/R2-4/1 dated 01.03.1977 which mentions about the fact of increase in rent. This voucher clearly indicates that on 01.03.1977 they were in possession of the premises and rent has been increased by the Appellant on account of subletting. Initially, the tenancy was created in favour of Pratap Bank and Sh. Hans Raj. The Pratap Bank was taken over by Laxmi Commercial Bank and thereafter Laxmi Commercial Bank was taken over by Canara Bank. At no RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 9 of 39 stage, the Appellant has disputed this fact. The Appellant was well aware of such tenancy as the same was with their consent and it was taking advantage of the same by receiving excess rent.
THE CHANGED STAND OF THE RESPONDENT NO. 1 AT THE STAGE OF FINAL ARGUMENTS
15) On 14.11.2022 Ms. Ritu Mishra, Ld. Counsel for the Respondent No. 1 submitted that Bank/ Respondent No. 1 is ready to handover the symbolic possession of the property to the Appellant. Ld. Counsel got recorded the statement of one Sh. Atul Singh, Officer of the Canara Bank in this regard.
16) I have heard Sh. R. Y. Kalia, Ld. Counsel for the Appellant, as well as, Sh. S. C. Singhal, Ld. Counsel for Respondents No. 2 to 4, Sh. Harsh Kumar, Ld. Counsel for Respondent No. 5. Ms. Ritu Mishra, Ld. Counsel for Respondent No. 1 was present but she has not submitted any argument rather, she has submitted that Respondent No. 1 is ready to hand over the symbolic possession of the suit property to the appellants. Ld. Counsel for the Appellant and Ld. Counsel for Respondents No. 2 to 4 have also filed written synopsis and various judicial pronouncements in support of their submissions.
17) Firstly, coming to the stand taken by the Respondent No. 1 at the stage of final arguments, Sh. Atul Singh, Officer, Respondent No. 1/Canara Bank made a statement on 17.11.2022 that bank is ready to handover the symbolic possession of the suit property to the Appellant subject to RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 10 of 39 No Demand being raised by the Appellant for the present, past and future expenses. Further, subject to the condition that the Appellant will not demand any compensation or will not raise any litigation against the Bank/Respondent No.1.
18) The sole inference from the statement of the Officer of the Respondent No. 1 is that the Respondent No. 1 is not in possession of any part of the suit property and is handing over only symbolic possession of the same to the Appellant.
19) Under the scheme of the Act, compromise between the parties is not possible. Section 14 of the Act starts with non- obstante clause. Eviction can happen only on the grounds mentioned in Section 14 of the Act. Respondent No. 1 has taken the plea that Respondents No. 2 to 6 are not sub- tenants and they are licensees. Settlement would have been possible if Respondent No. 1 would have admitted the plea of the Appellant. Thereby, the statement made by the officer of the Respondent No. 1 is of no consequence. Regarding future demand or any action to be initiated by Appellant against the Respondent No. 1, this Court is in no position to comment upon that.
SUBMISSIONS OF THE PARTIES
20) Sh. R. Y. Kalia, Ld. Counsel for the Appellant has submitted that under the Act, sub-tenant can get relief only if he satisfies the twin condition laid down in Section 16 of the Act, namely that there is previous written consent of the landlord of creation of sub-tenancy and notice was given in the prescribed manner for creation of sub-tenancy to the RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 11 of 39 landlord from the date of such creation. Respondents have failed to fulfill these two conditions, therefore, they are not entitled to protection from eviction. Ld. Trial Court has dismissed the Eviction Petition considering the receipt Ex. PW-1/R2-4/1 as the consent of the landlord to sublet the premises to the respondents, but this document has been wrongly interpreted by the Ld. Addl. Rent Controller as it only talks about "subletting of publicity charges". Law is settled that if tenant goes, the sub-tenant has to go with the sub-tenancy and he can claim no right to sit in the premises as a part and distinct right in tenancy. In support of his submissions, Ld. Counsel has relied upon the following judgments :
a) Tara Chand Vs. Mst. Marrium Bi and Anr., 1969 RCR 438
b) Shri Bhagwan Singh Vs. Shir Sultan Khan & Ors., 1986 (1) RCR 670
c) M/s. Girdhari Lal and Sons Vs. Balbir Nath Mathur & Ors., 1986 (2) SCC 237
d) Jagan Nath Vs. Abdul Aziz and Ors., AIR 1973 Del.
e) Murari Lal Vs. Abdul Gaffar, 1973 RCR 748
f) Sh. Subhash Chander vs. Sh. Rehmat Ullah, SAO No. 150 & 151 of 1971 decided by Hon'ble High Court of Delhi vide order dated 26.09.1972
g) Jai Prakash vs. Jean Conea, 1981, RLR 152
21) In view of the statement made by the Officer of the Respondent No. 1, Ld. Counsel for the Respondent No. 1 opted not to advance any arguments.
22) Sh. S. C. Singhal, Ld. Counsel for Respondents No. 2 to 4 RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 12 of 39 has urged that the Appellant has vehemently argued regarding Sections 16, 17 and 18 of the Act, which has not been canvassed as the ground of appeal and law is settled if the ground is not taken in the appeal, it cannot be canvassed and allowed in the appeal. The Appellant has relied upon Section 14 (3) of the Act which is not applicable in the present case as at no stage any eviction order has been passed against the respondents. Various judicial pronouncements referred by Appellant emphasized the requirement of Notice under Sections 16, 17 and 18 of Act but all such authorities are related to objections filed in the Execution Petition by the sub-tenants and hence, these authorities have nothing to do in view of the provisions of Sections 16 (1) and (2) of the Act. In support of his submissions Ld. Counsel has relied upon the following judgments:
a) M/s. Girdhari Lal & Sons Vs. Balbir Nath Mathur & Ors. (1986) 2 SCC 237
b) Banarasi Dass Vs. Smt. Shakuntala, AIR 1989 Delhi 184
c) Ganpat Ram Sharma & Ors. Vs. Smt. Gayatri Devi, (1987) 3 SCR 539
d) Chancellor & Anr. Vs. Dr. Bijaynanda Kar & Ors., AIR 1994 SC 579
e) Satish Khosla Vs. Eli Lily Ranbaxy Ltd. & Anr., 1998 (1) AD (Delhi) 927
f) Jagan Nath Vs. Abdul Aziz and Ors., AIR 1973 Del.
23) Sh. Harsh Kumar, Ld. Counsel for the Respondent No. 5 adopted the same arguments as advanced by the Ld. Counsel for the Respondents No. 2 to 4. No one came RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 13 of 39 forward on behalf of the Respondent No. 6 to advance arguments.
ANALYSIS OF THE FACTS, EVIDENCE AND LAW
(i) If the Respondents No. 2 to 6 are licensee or lessee of the Respondent No. 1.
24) The plea of the Appellant is that Respondents No. 2 to 6 are inducted as sub-tenants by the Respondent No. 1 without knowledge and written consent of the Appellant. However, plea of the Respondent No. 1 is that Respondents No. 2 to 6 are not sub-tenants but they are licensees. Same is disputed by the Respondents No. 2 to 5 by claiming themselves to be sub-tenants and not licensees. On this aspect, Ld. Trial Court in the impugned judgment from Page 11 to 14 has discussed the settled legal position to differentiate between the Lease and License. Ld. counsel for the Appellant and Ld. Counsel for the Respondents No. 2 to 5 have not disputed this observation of the Ld. Trial Court by holding that Respondents are lessees and not licensees and come to the conclusion that Respondents are lessees. Ld. Trial Court has quoted the relevant extract from "Evans and Smith state in The Law of Landlord and Tenant (4th Edn.)";
"Hill and Redman:Law of Landlord and Tenant (17th Edn. Vol. 1)" and "Halsburry's Laws of England".
25) Whether there is tenancy or licence or parting with possession in a particular case, would depend upon the quality of occupation given to the licensee or the transferee. (Reliance is placed on Gopal Saran vs. Satyanarayana, RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 14 of 39 AIR 1989 SC 1141). For proving the sub-tenancy, the landlord has to establish that a tenant has parted with the possession either of the whole or any part of the tenanted premises and sub-tenant is in exclusive possession of the property or part of the property. The exclusive possession means the possession to the exclusion of others or not admitting the existence of something incompatible with the possession of the sub-tenants. So long as the tenant keeps the control with him then it cannot be said that sub-tenant is in exclusive possession and hence does not fall within the mischief of Clause-b of Section 14 (1) of the Act.
26) Coming to the facts of this case, even during cross-
examination of various respondent witnesses, it stands established that they were having the exclusive control of the respective premises in their possession and hence, they were sub-tenants.
27) The most contentious point in this case to be considered is if Respondents No. 2 to 6 were inducted as sub-tenants with the knowledge of the Appellant and receipt Ex.PW1/R2-4/1 can be taken as consent of the Landlord / Appellant for sub- tenancy of the suit property.
(ii) Statutory provisions under DRC Act
28) Before discussing the statutory provisions under DRC Act, the objective and purpose of this Act is required to be seen first. As per preamble the objective of the Act is to provide for control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 15 of 39 Government, in certain areas in the Union Territory of Delhi. This petition is under Section 14 (1) (b) of DRC Act which provides as follows :
Section 14. Protection of tenant against eviction - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant :
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) ...
(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
..."
29) The other relevant section dealing with sub-letting/sub-
tenancy are Sections 16 and 17 of DRC Act which runs as follows :
16. Restrictions on sub-letting. -
(1) Where at any time before the 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 sub-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.RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 16 of 39
(3) After the commencement of this Act, no tenant shall, without the 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 be the tenant.
17. Notice of creation and termination of sub-tenancy.
(1) Whoever, 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 promises 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 such 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, 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 this notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute."
RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 17 of 3930) Ld. Counsel for the Appellant has further relied upon Rule 21 of the DRC Rules, 1959. Rule 21 and Form E are as follows:
"21. Notice relating to sub- tenancy -
A notice creation or termination of sub-tenancy required under section 17 shall be in Form 'E'.
FORM E (See rule 21) Form of notice regarding creation or termination of sub-tenancy
1. No. of the premises and name, if any.
2. Street and municipal ward or division in which the premises are situated
3. Name of the tenant
4. Name of the sub-tenant
5. Details of the portion sub-let
6. Rent payable by the sub-tenant
7. Purpose for which sub-let residential or non-residential and if latter, the nature of business, etc., an the number of employees if any, working therein.
8. Date of creation / termination of the sub-tenancy
9. Any other relevant information Place ..........
Date ...........
....................
(Signature of tenant / sub-tenant)
(iii) If suit property was sub-let to Respondents No. 2 to 6 by Respondent No. 1 with the consent of the Appellant
31) The relevant provision under the Act i.e. Section 14(1)(b) provides that order for recovery of possession of the premises can be made if the tenant has, on or after 09.06.1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 18 of 39 obtaining the consent in writing of the landlord. Admittedly by appellant, the tenancy of the premises with Respondent No. 1 dates back to 1944. Ex. PW1/R2 is the copy of Lease Deed regarding suit property between erstwhile Gobind Parshad Jagdish Parshad (HUF) and erstwhile Sh. Hans Raj G. Gupta & with Pratap Bank of which he was Managing Director. As already discussed, the appellant is the present landlord and Respondent No. 1 is the present tenant of suit property. The Eviction Petition is silent if any written Lease Deed was executed regarding the suit property. Even during his cross-examination by Respondent No. 1, PW1, when confronted with copy of Lease Deed, Ex.PW1/R2, has stated that he cannot say whether photocopy of the Lease Deed shown to him is the Lease Deed originally executed between Gobind Parshad Jagdish Parshad (HUF) in favour of Hans Raj Gupta and Pratap Bank. Ex.PW1/R3 is the copy of the Lease Deed procured from the records of the Department of Delhi Archives, Govt. of NCT of Delhi. PW1 when confronted with this document has stated that he cannot say whether this rent agreement was executed and registered between the Landlord and tenant Hans Raj Gupta and Pratap Bank Ltd. But since this document has been procured from the records of Department of Delhi Archive, Govt. of NCT of Delhi, there is no reason to dispute the same. It is thereby, taken as proved that Ex.PW1/R2 was the Lease Deed executed on 27.03.1944 regarding the suit property. Clause 4 which authorizes the tenant to sub-let the RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 19 of 39 property, for better appreciation of facts, is reproduced as follows :
"4. THAT the premises above mentioned shall be used exclusively as Office halls, for carrying on and disposal of banking business of all kind, and that the tenant shall not, without the previous written permission of the landlords which shall not be unreasonably withheld :
a. sublet or part with possession of the said premises or any part therein and that any rent, premium or any like sum received from the sub-lessee in addition of the prescribed rent dues, shall belong to and paid to the owners ;
b. create or transfer any interest hereby created and existing whatsoever in the said business firm constituted by them ;
c. use the said premises or any portion thereof for any other purpose whatsoever, which includes storage and sale of goods, of any description, other than those necessary, conducive or required for carrying on the said permitted business of Banking ;
d. display or make advertisement for anybody or of any kind, other than their own, of the permitted dimensions, and locations on the outer walls of the said premises and compensation being paid to them, as may be settled from time to time hereafter, in respect hereof, and ..."
32) Sh. S. C. Singhal, Ld. Counsel for Respondents No. 2 to 4 has strongly urged that Petitioner is admittedly owner/ landlord of the building in which the suit property is situated and owner of the adjoining building. It is stated that since the inception of sub-tenancy, Petitioner was aware and because of that had issued receipt Ex.PW1/R2-4/1 on RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 20 of 39 01.03.1977. To show the knowledge of the Appellant about the sub-tenancy, Ld. Counsel has further relied upon the Ex. RW-4/P-1, which is a latter dated 15.05.1956 written by Pratap Bank Limited to Respondent No. 3. It has been further urged that Ex. PW-1/8 is the application written by partner of the Petitioner to the Respondent No. 1 seeking information about the sub-tenants i.e. Respondents. It further proves that Petitioner was well aware about the sub- tenancy of the Respondents. Ld. Counsel has further submitted that the consent given by the landlord may be expressed or implied and moreover the receipt Ex.PW1/R2- 4/1 should be taken as written consent on the part of the petitioner/landlord.
33) During the course of arguments, Ld. Counsel for the Respondents No. 2 to 4 has further submitted that the suit filed by the Petitioner is highly time barred and accordingly the same is not maintainable. On the other hand, Ld. Counsel for the Petitioner has submitted that the DRC Act is special legislation, Limitation Act is not applicable except if provided somewhere in the Act.
34) Ld. Counsel for the Respondents No. 2 to 4 has relied upon the observations made by the Hon'ble Apex Court in Ganpat Ram Sharma & Ors. Vs. Smt. Gayatri Devi (supra). This was the case under Section 14 (1) (h) of the Act. The tenants were held to be rightly evicted on account of having acquired vacant possession thereof or been allotted residence. The Appellants, who were tenants, had RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 21 of 39 assailed the order of the Hon'ble High Court on the ground of waiver, latches and limitation. The Court has discussed Articles 66 & 67 of the Limitation Act and has discussed decisions of various High Courts, wherein it has been observed that time begins to run from the date of knowledge. But no finding of applicability of the Limitation Act to rent matters was given by the Hon'ble Apex Court.
35) On the other hand, Ld. Counsel for the Appellant has contended that the Limitation Act is not applicable in rent matters. In support of his submission, he has relied upon the observations made by Hon'ble High Court of Delhi in Subhash Chander vs. Rehmat Ullah (Supra). Here the Court has observed that it is unarguable that the Controller under the Act may have some of the trappings of a Court, but he is not a Court strict to sense and so not within meaning of the Limitation Act. The relevant para 25 reads as under:
P-25 - We think it is unarguable that the Controller is a Court in the strict sense. Sections 36 (2), 41 & 42 of the Act refute that suggestion entirely. They would not transmute the Controller into a court for certain purpose, if he were that already. Similar provisions have led to the conclusion that a Commissioner appointed under the Public Servants (Inquires) Act 1850, and an Employees' Insurance Court constituted under the Employees State Insurance Act, 1948, are not courts : see Brajnandan Sinha vs. Jyoti Narain; M/s Popular Process Studio and another vs. Employees' State Insurance Corporation. Mr. Justice V. S. Despande, has also held that the Controller is not a Court : see Kulwant Kaur vs. Jiwan Singh I.L.R. (1972) 1 Delhi 15. The contrary view taken in Krishnan vs. Radha Lakshmi Amma, was based on the definition of "Rent Control Court" in the Act there under consideration. Besides, that case does not notice the RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 22 of 39 judgments of the Supreme Court to which we have already referred. Cases under various other statutes showing the kinds of bodies or tribunals that have been held to be courts to not assist us, because it must always depend on the meaning attributed to that word in a particular contest : as witness, the Rent Controller in Punjab has been held, by a Full Bench, to be a civil court for purposes of the Criminal Procedure Code:
see Smt. Vya Devi v. Firm Madan Lal Prem Kumar (1971) 73 P.L. R. (F B) 61; and, by another Full Bench, not for purposes of the Code of Civil Procedure : see Pitman's Shorthand Academy v M/s B. Lila Ram & Sons, A. I. R 1950 E P 181. As regards the Limitation Act, 1963 the judgments of the Supreme Court are clear. In our opinion. Though the Controller under the Delhi Rent Control Act, 1958 may have some of the trappings of a Court, he is not a court stricto sensu and so not within the meaning of the Limitation Act.
36) Hon'ble Kerala High Court in Sadanandan vs. Pradeepan & Others (2001) 2 KLJ 272 has held that subletting constitutes a continuing cause of action to which the bar of limitation would not apply. The Court has held as follows:
We are also of the view that where a subletting is involved, the landlord gets a clause of action, which can only be described as a recurring clause of action. Every moment the objectionable sub-tenancy continues, the landlord gets, a right to apply for eviction under the Act after complying with the requirement of the proviso to Section 114 (i) of the Act. There is nothing in the Act which provides for the extinguishment of the right, once a notice under the proviso is issued, but it is not followed up by a petition for eviction. The objectionable subletting does not become an authorised subletting by that process. The right to apply for eviction will continue so long as the objectionable subletting subsists.
37) Various other High Courts have also held that subletting is continuing cause of action, every moment objectionable subletting continues, landlord gets, right to apply for RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 23 of 39 eviction. The reliance is placed upon Subhash Chand Goel vs. Hans Raj Gupta & Company Private Limited, 2019 (2) RCR (Rent) 545. Thereby, law is settled that there is no limitation to file petition for eviction on the ground of subletting as it gives recurring cause of action.
38) The other contention raised on behalf of the Ld. Counsel for the Respondents No. 2 to 4 is that it is the case of complete concealment of facts by the Appellant as he has not produced the lease deed, account books, Income Tax Records despite notice being given under Order 12 Rule 8 CPC and hence he is not entitled to any relief simply on account of that. In support of of his submissions, Ld. Counsel has relied upon Chancellor & Anr. Vs. Dr. Bijaynanda Kar & Ors. (Supra) and Satish Khosla Vs. Eli Lily Ranbaxy Ltd. & Anr. (Supra). The facts of the present case are totally distinguishable from the facts of these two cases.
39) In the present case, no doubt in his petition, the Appellant has taken the plea that there is no Lease Deed executed between the parties, but same stands produced and proved on record by the Respondent No. 1. It has to be kept in mind that the Lease Deed pertains to the year 1944 and this petition was filed in the year 2010. With this huge time gap, the next generation has taken over, they might have lost track of this Lease Deed, but any how the same stands proved on record by the Respondent No. 1 and both the parties, without any doubt, are bound with this Lease Deed RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 24 of 39 Ex. PW-1/R2. Thereby, even this contention raised on behalf of the Respondents No. 2 to 4 is found without any substance.
40) For rightly appreciating the submissions made by both the parties, as urged by the Ld. Counsel for the Respondents, the time from which this sub-tenancy started has to be looked into. As per Respondent No. 1, Respondents No. 2 to 6 are using different portions of the suit property for the last 12 years from today i.e. since 29.03.2010, when it had filed written statement. On the other hand, Respondents No. 2 to 4 have raised the plea that they are sub-tenants for the last more than 50 years. Respondents No. 5 and 6 have not taken any specific plea that since how long they are sub-tenants in the portion of the suit property.
41) Section 101 of The Indian Evidence Act defines burden of proof which clearly lays down that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Respondents No. 2 to 6 being sub-tenants are admittedly paying the rent to the Respondent No. 1. Strangely, neither Respondent No. 1 nor any of the other respondent had produced any documentary proof regarding this payment, to show since how long they are paying rent to Respondent No. 1. Respondent No. 3 while deposing as RW4, during his cross-examination has filed Ex. RW4/P1 a letter dated 15.05.1956 written by partner of Pratap Bank Ltd. to M/s H. S. Ahuja & Co., Chartered RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 25 of 39 Accountant, New Delhi, asking Respondent No. 3 to pay rent for the month of March, April 1956 and electricity charges for the month of April 1956. This document has nowhere been disputed by the Appellant.
42) PW1 during his cross examination has stated that he is seeing Respondents No. 2 to 6 for the last 10 years in the suit property and as suggested by the Ld. Counsel for the Respondents No. 2 to 6, he admitted that their partnership firm i.e. the Appellant was constituted to manage the properties and they are managing the properties adjoining to the suit property. However, on the strength of Ex. RW4/P-1 it stands established that Respondent No. 3 was in the suit property as sub-tenant, at least since 1956, whereas other respondents have failed to bring on record any conclusive piece of evidence to establish that since how long they were inducted as sub-tenants in the suit property.
43) To show the consent of the Appellant in this sub-tenancy, on the other hand contention raised on behalf of the Respondents is filing of another Eviction Petition by the Appellant against them. In the cross-examination of PW1, it has come that Eviction Petition was filed against the Respondents but same was not on the ground raised in this petition and what was the ground raised in the said petition has not come on record. PW-1 during his cross-examination has stated that the partnership firm M/s Govind Prashad Jagdish Prashad prior to filing of this petition has also filed 2-3 petitions. One eviction petition was against the tenant on RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 26 of 39 the ground floor on the ground of subletting. He does not remember if the same was filed in respect of the present property. He has stated that he cannot deny the suggestion that Respondents No. 2 to 6 were party in the said eviction petition as it is an old matter and he does not remember. The said petition was withdrawn by them. He has further stated that they have not taken any ground of subletting in the said petition.
44) If on the similar ground some eviction petition was filed by the Appellant earlier and same was dismissed or withdrawn, to seek benefit of res judicata, burden was upon the Respondents to prove the same on record, but they have failed to do so.
45) The other point hammered by Ld. Counsel for the Respondents is that rent receipt Ex.PW1/R2-4/1 proves acceptance of increased rent on account of lawful sub- letting by the Appellant. Ld. Addl. Rent Controller relying upon this rent receipt has returned the findings that Appellant by executing this rent receipt has confirmed that it had duly recognized the sub-tenancy and so much so, it has increased the rent as well. Ld. Trial Court has further observed that Appellant by receiving rent on account of lawful increase by way of sub-letting vide this receipt had indicated that the Appellant had not merely consented to sub-letting rather had moved forward and had received enhanced rent on account of said sub-letting from Respondent No. 1.
RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 27 of 3946) The rent receipt Ex.PW1/R2-4/1 bears the signature of Triloki Nath, who was partner of the Appellant at relevant time. It has been issued to Hans Raj G. Gupta and M/s Lakshmi Bank on 01.03.1977. The contents of the receipt are reproduced as follows:
"M/s. Hans Raj G. Gupta & M/s. Lakshmi Commercial Bank Ltd., New Delhi Gobindpershad Jagdishparshad Mg. Partners : JAGDISH PARSHAD, ISHWAR CHANDRA & TRILOKINATH INDRA PALACE, CONNAUGHT CIRCUS, NEW DELHI No.1945 Dated : 01.03.1977 No. Rs. P.
1) To Rent, house tax & water charges (for normal usage) on the existing basis for office premises No. H.61, together with new Verandah in Gobind 975 00 Mansion C. Cir. New Delhi, for January, February & March - 1977 @ Rs.325/- P.M.
2) To lawful increase subletting & publicity charges for January, February & March-1977 @ Rs.250/- 750 00 P.M. Total 1,725 00
47) As per Ex.PW1/R2, the rent of the suit property was fixed as Rs. 200/- per month and for the adjoining front rooms as Rs. 22.80 per month i.e. total Rs.222.80 per month plus all other taxes and charges that are levied or may be levied in future from time to time. In Serial No. 2 of this receipt, the Appellant has accepted the lawful increased sub-letting and publicity charges for January, February, March 1977 @ Rs.250 per month. As per Ld. Counsel for the RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 28 of 39 Appellant, Clause 4(d) of the Lease Deed Ex. PW1/R2 provides display or make advertisement by the tenant for anybody or of any kind, other than their own, of the permitted dimensions, and locations on the outer walls of the said premises. He has submitted that enhanced rent was on the basis of sub-letting done by Respondent No. 1 for advertisement on the outer wall of the suit property. It is relevant to mention here that Respondent No. 1 had moved an application under Order LX1 Rule 27 CPC to prove that on 01.04.1944 an Advertisement Agreement was executed between erstwhile landlord with Pratap Bank through its Managing Director regarding erection and display of advertisement boards and signs on the entire front building. This application was dismissed by this court vide order dated 12.10.2022.
48) This rent receipt is not containing the names of the sub-
tenants anywhere. For the sake of arguments, even if this admitted enhanced rent is taken as acceptance by the Appellant of enhaced rent from the Respondent No. 1 on account of subletting of the premises to the Respondents, does this is enough to satisfy the requirements of Section 16 (2) of the Act. The same will be discussed in the subsequent paras.
49) The other contention raised on behalf of the Respondents is that Ex. PW-1/8 further proves that Appellant was aware and had consented about the sub-tenancy. Ex. PW-1/8 is the application under Section 6 of Right to Information RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 29 of 39 Act, 2005 written by the Appellant to the AGM of the Respondent No. 1 on 01.06.2009 seeking information about the amount of rent being received from the Respondents No. 2 to 5 in the suit property. Ex. PW-1/9 is the information given by the Respondent No. 1, which provides that as per available record, the rent paid by these occupants is as under:
Respondent No. 2 - Rs.180 per month Respondent No. 3 - Rs.165 per month Respondent No. 4 - Rs.80 per month Respondent No. 5 - Rs.187.50 per month Respondent No. 6 - Rs.115 per month
50) It is relevant to mention here that the Appellant had also sought information from Respondent No. 1 that from which date the rent is being paid to the bank by these sub-
tenants but in their reply, Ex.PW1/9, Respondent No. 1 has not disclosed the date since how long they are receiving rent from these sub-tenants. Ld. Trial Court also relying upon this letter Ex.PW1/8 coupled with rent receipt Ex.PW1/R2-4/1 has come to the conclusion that the Appellant had given consent to Respondent No. 1 to sub- let the premises in question.
51) As urged by the Respondents, no doubt this stands established that Appellant was aware about the sub- tenancy of the suit property with the Respondents No. 2 to
6. The Appellant has not disclosed any time frame since when Respondents No. 2 to 6 are sub-tenants in the suit RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 30 of 39 property. As discussed earlier, Appellant has failed to explain the admitted document Ex. RW4/P-1 dated 15.05.1956. But again the relevant point to be considered is that as what are the requirements of Section 16 (2) of the Act and if the Respondents are able to establish that Appellant had consented to this sub-tenancy. For this purpose the legal position, as contented by both the parties needs to be discussed.
LEGAL POSITION
52) Coming back to the mandate of the Act. Section 16(2) of the DRC Act specifically provides that 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. Both the parties have relied upon various judicial pronouncements in support of this submission. Both the parties have relied upon the observations made by the Hon'ble Apex Court in M/s Girdhari Lal and Sons Vs. Balbir Nath Mathur & Ors. (Supra). In this case the court has held that to give a meaningful, purposeful or functional interpretation to the statute, the court is required to see the statement of objects and reasons for which statute has been introduced. The preamble and parliamentary debates which led to drafting of the statute is also other important aspect to be considered. The relevant para 7 to 9 & 14 are reproduced as follows:
"7. Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 31 of 39 the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from Parliamentary debates, reports of Committees and Commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard must be had to legislative history too.
8. Once Parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation. This is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction. Again, the words of a statute may not be designed to meet the several uncontemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the 'primary situation'. It will then become necessary for the court to impute an intention to Parliament in regard to 'secondary situations'. Such 'secondary intention' may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation.
9. So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary.RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 32 of 39
...
14. It may not be out of place to refer here to what Harold Laski said in his Report of the Committee on Ministers' powers:
"The present methods of statutory interpretation make the task of considering the relationship of statutes, especially in the realm of great social experiments, to the social welfare they are intended to promote one in which the end involved may become unduly narrowed, either by reason of the unconscious assumptions of the Judge or because he is observing the principles of interpretation devised to suit interests we are no longer concerned to protect in the same degree as formerly... The method of interpretation should be less analytical and more functional in character; it should seek to discover the effect of the legislative precept in action so as to give full weight to the social value it is intended to secure."
..."
53) Further, the Court has observed that it is apparent that act has primarily devised to prevent unreasonable eviction of the tenants and subtenants from demised premises and unreasonable enhancement of rent. The protection has been afforded to sub-tenants who had been inducted into possession with the consent of the landlord. While so extending the protecting hand to the sub-tenants, the legislature wanted to make sure that sub-tenants who had generally obtained the consent of the landlord alone should be entitled to that protection. The legislature while offering protection to a sub-tenant who has been inducted into possession by the landlord has limited the protection to the RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 33 of 39 sub-tenant who can establish the consent of the landlord by documentary evidence to which the landlord and the tenant or the sub-tenant are parties. The essence of the requirement, is that the consent of the landlord to the sub- tenancy and the notice of the creation of the sub-tenancy have to be evidenced by writing. The writing to be such as to indicate clearly the consent of the landlord to the creation of a sub-tenancy and his knowledge of the particular sub- tenancy after its creation. The court has further observed that 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.
54) In the same judgment, Hon'ble Justice V. Khalid, supplementing the observations made by Hon'ble Justice O. Chinnappa Reddy, has reiterated that there must be the previous consent in writing by the landlord of the creation of the sub-tenancy, and a notice in the prescribed manner by the sub-tenant of the creation of the sub-tenancy to the landlord. The relevant Para 21 and 22 for better appreciation of facts is reproduced as follows:
"21. The normal rule is that all rights created by a tenant disappear alongwith the disappearance of his tenancy unless there are special statutory safeguards for the subtenants. A subtenant has no independent existence de-hors the tenant who inducted him into possession. In the Act before us a subtenant is given a special right, not available to him under the general law, but that right is circumscribed by specific conditions laid down in Section 17. We have chosen to rescue the appellants before us only because of the hide and seek conduct displayed by the so-called tenant and RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 34 of 39 the so-called landlord in this case. The facts speak for themselves. Even a man who runs can see that the so- called tenant in this case is the alter ego of the so-called landlord. There is a total identification between the two. It is their attempt to overreach the appellants by dubious methods that has, in fact, imperilled their case, and it is for this reason that the appellants get relief from us, even though strict adherence to the conditions imposed under Section 17 is absent.
22. In 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 Section 17 viz. that there must be the previous consent in writing by the landlord, of the creation of 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 Section 18(1) will follow. I should not, therefore, be understood to hold the view that as a general rule, in all cases where the subtenant somehow secures the signatures of the landlord in some communication relating to tenancy, a consent in writing satisfying the requirements of the section is to be assumed. In this case, Messrs Om Prakash & Company and Balbir Nath Mathur have been hand in glove with one another to defeat the appellants. It is the attestation by Balbir Nath Mathur on behalf of Messrs Om Prakash & Company in the letter dated June 10, 1975, that has found favour with us to assume consent in writing in the peculiar facts of the case. This, according to me, is an exceptional case with facts peculiar to its own. Normally, Section 17 should be strictly complied with, for the subtenant to get the benefit under Section
18."
55) Ld. Counsel for Respondents No. 2 to 4 has also canvassed the point that a contract of sub-letting entered without consent is not void. In support of this submission, learned RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 35 of 39 counsel has relied upon the observations made by the court in Banarasi Dass Vs. Smt. Shakuntala (Supra). This case pertains to suit for recovery filed by the tenant against the sub-tenant for recovery of rent. The sub-tenant had taken a plea that as the sub-tenancy in her favour has been created after 09.06.1952 and there is no evidence that sub-letting was created with the previous consent in writing of the landlord hence, the sub-letting is unlawful and therefore, void. Discussing Section 23 of the Indian Contract Act and Section 108 (j) of the Transfer of Property Act, the Court has observed that it is not void. The facts of the present case are totally different and the law laid down in DRC Act has to be applied to the facts of present case.
56) The bare reading of Section 16(2) of the Act provides that consent of the landlord to sublet the suit premises should be in writing. So much so, legislature has even prescribed Form-E in Rule 21 of the DRC Rules, 1959.
57) Ld. Counsel for the Respondents No. 2 to 5 have stated that consent may be expressed or implied. In this context, Ld. Counsel for the Respondents No. 2 to 5 has relied upon Jagan Nath Vs. Abdul Aziz and Ors. (Supra). The facts of this case are distinguishable from the facts of the present case. In this case, the landlord has accepted the enhanced rent on account of sub-tenancy in the Court and has given statement regarding that.
58) Law is settled that the tenant can successfully induct a sub-
tenant but only with prior consent in writing of the landlord.
RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 36 of 39The statute requires specifically that the consent must be in writing. Reliance is placed on Smt. Balquis Jehan Begum vs. Sibghtulla & Aother, 1971 RCR 95. The permission of the landlord or acquiescence is of no consequence in the absence of written consent, as the law requires the prior consent in writing.
59) In M/s Shalimar Tar Products Ltd. vs. H. C. Sharma & Others, (1988) 1 SCC 70, Hon'ble Apex Court has held that it was necessary for the tenant to obtain the consent in writing to sublet the premises. The mere permission or acquiescence will not do. The consent must be to the specific subletting and must be in writing. For the purpose of Section 14 (1)(b) of the DRC Act, consent enjoined by bargain between the parties must be in writing and must be to the specific subletting. In M/s Curewell (India) Limited vs. Inderjit Singh & Others, 1995 (32) RCJ 663 (Delhi) the Hon'ble Court has observed that permission of the landlord to sublet the premises must be specific and in writing. In Seth Fida Ali vs. Jamilur Rehman & Others, 1988 (2) RCJ 16 (MP), the Hon'ble Court has observed that even if the sub-tenant is living in the premises and this fact is within the knowledge of the landlord even then it does not become lawful subletting as the law requires the consent in writing prior to creation of the tenancy. Law is also settled that long occupation of the sub-tenant in the premises does not amount to waiver, to establish the same conscious relinquishment of right must be proved.
RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 37 of 39CONCLUSION:
60) As per Section 16 (2) of the Act, the important and relevant date is 09.06.1952 and any subletting after this date without obtaining the consent in writing of the landlord is unlawful.
61) As per the facts of this case, discussed in above paras, this is neither the case of the Respondents nor any document in this regard has been brought on record that sub-tenancy dates back prior to 09.06.1952. Thereby, as per the settled legal position consent in writing of the landlord i.e. Appellant who is the owner is sine qua non for creation of valid sub-tenancy. Respondents No. 2 to 6 have taken the plea that their sub-tenancy was within the knowledge of the landlord/ Appellant and there was specific consent of the Appellant or atleast there was implied consent of the Appellant in this regard. To establish their defence, Respondents No. 2 to 4 have relied upon three documents i.e. letter Ex. RW-4/P-1, receipt Ex. PW-1/R2-4/1 and Ex.
PW-1/8 vide which Appellant has sought information under the RTI Act from the Respondent No. 1 mentioning the names of the sub-tenants.
62) The law is settled that there should be specific consent in writing of the Appellant prior to creation of the tenancy, which is not there in this case. Ld. Addl. Rent Controller fell in error by construing the receipt Ex. PW-1/R2-4/1 and Ex. PW-1/8 as the consent of the Appellant/Landlord to this sub-tenancy and accordingly dismissing the petition. The impugned order is thereby set-aside and the Appeal is RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 38 of 39 allowed.
63) The Appellant is entitled to recovery of possession of the premises as Respondent No. 1 being tenant has sub-letted the tenanted premises to the Respondents No. 2 to 6 without obtaining the consent in writing of the Appellant under Section 14 (1) (b) of the Act. As the entire suit property is in possession of respondents no.2 to 6, they are directed to vacate the premises.
64) Trial Court Record be sent back alongwith a copy of this order.
65) Appeal file be consigned to Record Room.
SANJAY Digitally signed by
SANJAY GARG - I
GARG - I Date: 2023.01.20
16:39:04 +0530
Announced in the open (SANJAY GARG-I)
Court on 20.01.2023 Principal District & Sessions Judge, South East, Saket Courts, New Delhi RCT No. 04/2022 M/s Gobind Parshad Jagdish Parshad Vs. Canara Bank & Ors. Page 39 of 39