POORAN CHAND Vs. MOTILAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and decree of the High Court of Judicature for Rajasthan at Jodhpur setting aside those of the Senior Civil Judge, Ajmer, and restoring those of the Subordinate Judge, First Class, Ajmer decreeing the suit for eviction from the suit premises filed by the respondents against the appellant.

(2.) The facts may be briefly stated. The building situate at No. 41, Purani Mandi, Ajmer, consists of a large number of rooms, and the respondents are its owners. On October 13, 1935 the said building was taken on lease by the appellant's father for a period of one year on a rent of Rs. 50/- per month. On July 10, 1950 the respondents gave a lease of the said building in favour of the appellant for a period of one year on a rent of Rs. 65/- per month. On August 8, 1952 a fresh lease was executed in favour of the appellant on an enhanced rent of Rs. 70/- per month. Under the said lease the tenancy was to commence from August 1, 1952. On June 27, 1954 the respondents issued a notice to the appellant, through their Advocates, calling upon him to vacate the premises by midnight of July 31, 1954 - August 1, 1954. In that notice it was alleged that the appellant was in arrears of rent and that he had also sublet the property. In the reply notice the appellant promised to pay the arrears of rent as early as possible, but stated that he had all along been subletting portions of the premises to others, except the portion under his occupation. As the appellant did not comply with the terms of the notice, the respondents filed on August 2, 1954 Civil Suit No. 762 of 1954 in the Court of the Subordinate Judge, First Class, Ajmer, against the appellant for eviction, for recovery of arrears of rent and for other reliefs. The plaint was later on amended. The appellant contested the suit on various grounds and particularly on the ground that it was not maintainable. It may be mentioned that in the written statement the fact that the premises were sublet to tenants was not denied. The learned Subordinate Judge decreed the suit, holding that the notice was valid and that the appellant was liable to be evicted under S. 13 (1) (b) of the Delhi and Ajmer Rent Control Act, 1952 (XXXVIII of 1952), hereinafter called the Act, as he had sublet portions of the premises without the consent in writing of the landlord. On appeal the Senior Civil Judge, Ajmer, allowed the appeal. He held that the notice issued to the appellant was short by 24 hours and that he had no right to sublet the premises without the written consent of the landlord, though there were sub-tenants in the premises when the appellant took the lease. On second appeal, the High Court allowed the appeal and restored the decree of the trial court. The High Court held that the notice complied with the provisions of S. 106 of the Transfer of Property Act, 1882, and that, in any event, as the tenancy expired by mere efflux of time, no notice was necessary. Hence the present appeal.

(3.) Learned counsel for the appellant raised before us the following four points:(1) No second appeal lay to the High Court against the decree and judgment of the Civil Judge; (2) if no second appeal lay against the decree and judgment of the Civil Judge, the High Court's power of interference with that judgment was confined only to S. 35(1) of the Act and that under that section it had no jurisdiction to set aside the judgment on merits, whether of law or of fact; (3) the High Court wrongly held that the notice complied with the provisions of S. 106 of the Transfer of Property Act, 1882, and (4) the High Court made out a totally new case in holding that the tenancy had expired by efflux of time.