Full Text
HIGH COURT OF DELHI
JUDGMENT
98/2023 SHRI RAJINDER DHAWAN & ORS ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. S.C. Singhal, Mr. Suresh Beri and
Mr. B.S. Rana, Advocates For the Respondent : Mr. R.Y. Kalia, Advocate for R-1.
Mr. Harsh Kumar, Advocate for R-3.
1. The petitioner challenges the order dated 20.01.2023 passed in RCT No. 04/2022 whereby the first appeal of respondent no.1/landlord was allowed and the eviction petition under Section 14(1)(b) of Delhi Rent Control Act, 1958 (hereinafter as “DRC Act”) was allowed and a decree of eviction was passed against the petitioners. [ The proceeding has been conducted through Hybrid mode ]
2. Without going into the details of the facts, this Court has culled out the facts as noted in Eviction Petition No.111/2009 dated 11.02.2016, as follows:- "Petitioner is the landlord of premises in question, which are non residential in nature. Said premises were initially let out to Pratap Bank Limited in 1944. by M/s Gobind Parshad Jagdish Parshad HUF, which remained as an HUF till 31.12.1949, when it was disrupted and a partnership under the name and style of Gobind Parshad Jagdish Parshad, came into existence, w.ef. 01.01.1950. Pratap Bank Limited, subsequently amalgamated with Laxmi Commercial Bank Limited w.e.f. 10.12.1961 and later on said Laxmi Commercial Bank Limited further amalgamated with respondent no.1 we.f. 23.08.1985. Since January 2008, respondent no. 1 in arrears of rent, at the rate of Rs. 575per month. Petitioner has come to know through reply, in response to its RTI application that respondent no. 1 has illegally and unauthorizedly, without permission of petitioner and consent in writing of petitioner has sub-letted, assigned or parted with the possession of premises in question to respondent no. 2 to 6 and it is respondent no. 2 to 6 who are in exclusive possession of different portion of premises in question since 09.06.1952. Respondent no. 2 is in possession of portion Marked A, in the site plan, respondent no. 3 is in possession of portion Marked B in the site plan, respondent no. 4 is in possession of portion Marked C in the site plan, respondent no. 5Jin the possession of portion Marked Din the site plan and respondent no. 6 is in the possession of portion Marked E in the site plan. Respondent no. 2 is paying rent of Rs. 180 per month to respondent no. 1, respondent no. 3 is paying rent of Rs. 165 per month to respondent no. 1, respondent no. 4 is paying Rs. 80 per month to respondent no. 1, respondent no. 5 is paying Rs. 187.50 per month to respondent no. 1 and respondent no. 6 is paying Rs. 115 per month to respondent no. I. Hence, petitioner has filed present petition for eviction of the said respondents on the ground of illegal sub-letting, u/s 14(1)(b)DRC Act."
3. Mr. S.C. Singhal, learned counsel appearing for the petitioner/sub-tenants submits that the appeal filed by respondent no.1/landlord before the Rent Control Tribunal (hereinafter as “RCT”) was one under Section 38 of the DRC Act. Learned counsel submits that it is well settled law of the land that an appeal under Section 38 of the DRC Act is purely on questions of law that may arise between the parties and not an appeal which is entertained on the merits of the matter.
4. Mr. Singhal submits that a substantial question of law ought to have been framed first and a decision ought to have been rendered thereon by the RCT. Having regard to the fact that the RCT neither framed a question of law nor rendered any decision thereon, the impugned order would be unsustainable in law.
5. Mr. Singhal, learned counsel further submits that the entire impugned judgment is replete with references to facts and finding of facts and not even one single question of law has been framed. On that basis, Mr. Singhal submits that the impugned order ought to be set aside.
6. So far as the facts of the case are concerned, Mr. Singhal invites attention of this Court to the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter as “CPC”) filed by the petitioner and the documents annexed thereto to submit that even on facts, the impugned judgment is unsustainable.
7. Mr. Singhal, learned counsel submits that the documents which have been filed alongwith this application under Order XLI Rule 27 of CPC were not available with the petitioner at the time of filing of the written statement or leading the evidence, though the pleas in relation thereto were indeed taken in the written statement. Learned counsel submits that these documents are relevant to the dispute and the issues could not have been decided without evaluating these documents.
8. Learned counsel then invites attention to page 45 of the said documents to submit that respondent no.1 had filed an eviction petition against M/s. Lakshmi Commercial Bank Ltd to submit that respondent no.1 was aware of the sub-tenants who were inducted by the said Lakshmi Commercial Bank Ltd as far back in the year 1982. On that basis, learned counsel submits that once respondent no.1 had gained knowledge of the sub-tenancy, there was no reason as to why an independent eviction petition against the sub-tenants was not filed by respondent no.1.
9. Mr. Singhal further submits that it is an admitted fact that the tenancy of the original tenant was created some time in the year 1944 which is prior to the promulgation of DRC Act, 1958. In fact, Mr. Singhal submits that the original tenant and the sub-tenants were already in possession of the subject suit premises even prior to 01.09.1952.
10. Learned counsel submits that respondent no.1 had been, all along in so many years, accepting the rent on behalf of the sub-tenants like the petitioner, without any demur. Learned counsel submits that, no doubt, the rents were indeed paid to the principal tenant by the petitioners, however, respondent no.1 was in the know of the fact that sub-tenants were occupying the premises and were also paying the rent. On that basis, Mr. Singhal submits that respondent no.1 was aware of the presence of sub-tenants and even if there was no written notice issued by the petitioners/sub-tenants, such notice was deemed to have been issued, by virtue of the conduct of respondent no.1.
11. Learned counsel submits that there is nothing to show on record of the learned Trial Court or the First Appellate court that there was any document which would indicate that any written notice was to be issued by either the principal tenant or by the petitioners/sub-tenants to the landlord/respondent no.1 intimating that the petitioners were the subtenants of the principal tenant. Learned counsel submits that having regard to the fact that there is no such document of the nature as submitted above, as also the fact that respondent no.1 had itself admitted the existence of sub-tenants in the eviction petition filed against Lakshmi Commercial Bank Ltd, the inference reached by the RCT was not only contrary to the law, but also to the facts which are on record. Mr. Singhal, on that basis, submits that the impugned order is unsustainable in law and ought to be set aside.
12. Mr. Singhal relies upon judgment of the Hon’ble Supreme Court in Nazir Mohammad vs. J. Kamla & Ors. reported in 2020 (19) SCC 57, to submit that the Hon’ble Supreme Court in Nazir Mohammad’s case while dealing with the provisions of Section 100 of CPC, had categorically laid down, that if the High Court while dealing with an appeal under Section 100 CPC, does not formulate a substantial question of law arising between the parties, the judgment rendered thereon, in such absence, would be unsustainable in law.
13. Mr. Singhal submits that applying the same principle in the present case, in the first appeal under Section 38 of DRC Act, since there is no question of law formulated by the RCT, the impugned judgment is unsustainable in law.
14. Per Contra, Mr. R.Y. Kalia, learned counsel appearing for respondent no.1/landlord submits that the present petition is not maintainable for the reason that once the eviction decree against the principal tenant has been passed, there being no privity or relation of landlord and tenant existing between the petitioner/sub-tenant on the one hand and respondent no.1 on the other, the petitioner/sub-tenant has no locus to maintain such challenge.
15. To buttress his arguments, Mr. Kalia relies upon the judgment of this Court in G.L. Kapoor vs. Ramesh Chander reported in 1973 RCR page 81, whereby a learned Single Judge of this Court had held that an ordinary sub-tenant has his privity of contract and estate with the tenant only. He has no relationship in law with the landlord. The landlords’ relationship is only with the tenant. He does not recognize the subtenants at all. That is why, both under the Transfer of Property Act, 1882 and the Code of Civil Procedure, 1908 a decree by the landlord against the tenant is sufficient for the landlord to obtain possession of the premises from the tenant even though the premises may be occupied by the sub-tenants.
16. Mr. Kalia, learned counsel submits that having regard to the aforesaid law, the present challenge itself, becomes unsustainable for want of locus. Mr. Kalia submits that the impugned order in para-54 had rightly appreciated the judgment of the Hon’ble Supreme Court in Girdhari Lal vs. Ranbir Nath reported in (1986) 2 SCC 237 and had extracted paragraphs 21 and 22 whereby while interpreting Sections 17 and 18 of DRC Act, the Hon’ble Supreme Court held that the subtenants would be entitled to protection against eviction provided the consent of the landlord to induct sub-tenants and the notice of the creation of the sub-tenancy is evidenced in writing.
17. On that basis, Mr. Kalia submits that having regard to the fact that there is not even a single piece of evidence which would show the fulfillment of the criteria of Section 17 of DRC Act, the knowledge of sub-tenants and existence of sub tenants i.e., the petitioners, cannot be imputed to the respondent/landlord.
18. Learned counsel for respondent no.1 further relies upon the judgment of this Court in 1970 RCR 438 titled Tarachand vs. Mst. Marrium Bi and Anr, to submit that the sub-tenants could have become a direct tenant of the landlord after the termination of the tenancy of the principal tenant provided that such sub-tenant complies with the provisions of sub-Section 2 of Section 17 of DRC Act. Learned counsel submits that since there is no compliance of sub-Section 2 of Section 17 of DRC Act, the sub-tenant cannot step into the shoes of the principal tenant to get the same protection.
19. Learned counsel brings attention of this Court to page 236 which is the lease deed executed between the respondent no.1/landlord and the principal tenant, particularly to clause 4, whereby it was categorically mentioned that the tenant shall not without the previous written permission of the landlord and which shall not be unreasonably withheld, sublet or part with possession of said premises or any part thereof.
20. Learned counsel submits that contrary to the submissions made by Mr. Singhal, it is clear from the recitals of the original lease deed that the sub-tenancy could not have been created except by way of a legal notice. Mr. Kalia submits that, admittedly, there is no such notice on record.
21. Learned counsel also draws attention of this Court to para 30 of the impugned judgment to submit that the learned RCT had also examined the issue from another angle, in that, it had considered Rule 21 of the DRC Rules, 1959 coupled with Form-E which is notice relating to sub-tenancy. On that basis, Mr. Kalia, learned counsel submits that learned RCT concluded that a notice in writing was a sine qua non for sub-tenant to be officially recognized as a sub-tenant. He further submits that RCT also concluded that there was no alternative other than to follow the rule of law, if the protection of the DRC Act was sought to be extended to the alleged sub-tenant.
22. That apart, Mr Kalia, learned counsel submits that having regard to the admission of the principal tenant Canara Bank, before the RCT, undertaking to handover the symbolic possession to the respondent No.1, the question of the petitioner/sub-tenant, resisting the eviction decree does not arise at all. Learned counsel submits that in accordance with the judgment of this Court in G.L. Kapoor (supra) and Tara Chand (supra), the petitioners/sub-tenants have no locus to even challenge the eviction decree. On the basis of the aforesaid arguments, learned counsel submits that the petition be dismissed with exemplary costs.
23. This Court has considered the rival submissions as also perused the documents placed on record by the parties and considered the ratio laid down by various judicial pronouncements of this Court as well as the Hon’ble Supreme Court.
24. At the outset, what is relevant to be decided is whether there was any provision in the original lease agreement whereby it was incumbent upon the original tenant to have informed or have taken written consent or issued a written notice to the respondent no.1/landlord about the induction or existence of sub-tenants.
25. It is clear from a reading of Clause 4 of the Lease Agreement, which was exhibited before the learned Trial Court during trial, that the principal tenant had, necessarily, to take written permission of the landlord to create any tenancy, of whatsoever nature, before parting away with possession of the tenanted premises. Once a written document exists, in accordance with Section 91 of the Indian Evidence Act, 1872 no oral evidence to the contrary can be urged by any of the parties. Thus, to that extent, clause 4 binds the original tenant as also any sub-tenant who has been inducted by the principal tenant, without adhering to the terms of Clause 4 of the lease agreement.
26. That apart, the submissions of Mr. Singhal imputing knowledge of the existence of sub-tenants as far back as in the year 1982, when the respondent no.1 landlord filed an eviction petition against Lakshmi Commercial Bank Ltd alleging creation of sub-tenancy, would be of no relevance, keeping in view clause 4 of the lease agreement as also the provisions of Section 17 read with Section 18 of DRC Act. This is for the reason that not even a single document has been placed on record evidencing the creation of sub-tenancy and the written consent of the respondent No.1-landlord consenting to such sub-tenancy. To hold otherwise would be contrary to the judgments of the Supreme Court in Girdhari Lal (supra) and this Court in G.L. Kapoor (supra).
27. The submissions of Mr. Singhal in respect of challenge to the maintainability of the appeal under Section 38 of DRC Act on the grounds other than law are concerned, the same are untenable. This is for the reason that whenever the RCT finds non-consideration of relevant issues, or of finding, which is based on no evidence or an issue on law which ought to have been considered and not considered by the ARC, the same would fall within the parameters of a question of law. Applying this principle in the present case, the non-consideration of clause 4 of the lease agreement coupled with non-consideration of provisions of Section 17 read with Section 18 of the DRC Act would be enough to fall within the purview of legal infirmity, which would fall within the questions of law which are to be decided under Section 38 of DRC Act.
28. It is, undoubtedly, a well settled law that that the RCT under Section 38 of the DRC Act confines itself only to questions of law which arise in any given case. However, in the present case, as observed above, the non-consideration of clause 4 read with Section 17 and 18 of DRC Act, would fall within the question of law to be considered under Section 38 of DRC Act.
29. Thus, the said submission of Mr. Singhal on the question of Section 38 of DRC Act is rejected.
30. In G.L. Kapoor (supra) leaned Single Judge of this Court in paragraphs 2 and 3 held as under:- “2. The first question for decision is whether a subtenant can file this appeal when the tenant himself chose to withdraw his appeal before the Tribunal. The law is clear on this subject. An ordinary sub-tenant has his privity of contract and estate with the tenant only. He has no relationship in law with the landlord. The landlord's relationship is only with the tenant. He does not recognise the sub-tenants at all. This is why both under the Transfer of Property Act and the Code of Civil Procedure, a decree by the landlord against a tenant is sufficient for the landlord to obtain the possession of the premises from the tenant even though the premises may be occupied by subtenants. For, the sub-tenants claim their title only through the tenant and when the title of the tenant itself comes to an end the sub-tenants go out along with the tenant. This legal position is further confirmed by section 25 of the Act, which expressly lays down that the order for eviction made by the Controller against the tenant shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all, such persons therefrom. The proviso to section 25 says that nothing in this section shall apply to any person who has an independent title to such premises. It is clear that the sub tenants have no independent title to the premises. Their only title is through the tenant. Under the substantive part of section 25, therefore, they go out of possession with the tenant.
3. The only exception to the rule laid down in section 25 is enacted in section 18 of the Act. Section 18 protects the possession of a lawful sub-tenant who becomes a tenant in his own right after the original tenant is evicted. The only question, therefore, is whether the appellant can claim to be a lawful sub-tenant protected by section 18. It is clear that he is not entitled to such protection. Firstly, no consent in writing of the landlord has been obtained to the creation of his sub tenancy as required both by clause (b) of the proviso to section 14(1) and sub-section (2) of section 16 of the Act. Secondly, no notice of the creation of the sub-tenancy was given to the landlord either by the tenant or by the sub-tenants under section 17 of the Act.”
31. This Court has also considered the judgment of the Hon’ble Supreme Court in Girdhari Lal (supra) which had laid down the law that the consent of the landlord to the sub-tenancy and notice of creation of sub-tenancy must be evidenced in writing.
32. The Hon’ble Supreme Court in the aforesaid judgment has also considered Rule 21 of DRC Rules, 1959 which provided for a notice for creation or termination of sub-tenancy required under Section 17 and stipulated that the same would be in form-e and concluded that such provisions were mandatory, in the absence whereof, the sub-tenancy could not get the protection of Section 18 of DRC Act,
33. Applying the said principle in the present case, this Court observes that there is no such notice issued either by the original tenant or even by the sub-tenants and as such, the protection under the provisions of DRC Act cannot be extended to the petitioner/sub-tenants.
34. In view of the above, this Court is of the considered opinion that the petition is without any merits and the same is dismissed, however, without any order as to costs.
35. Pending applications also stand disposed of.
TUSHAR RAO GEDELA, J. APRIL 12, 2023