KAMLA DEVI Vs. ONKAR NATH

JUDGEMENT

(1.) The appellant had sought eviction against the respondenton the ground of sub-letting, 17 sub-tenants were impleaded beside the tenantOnkar Nath. In this appeal the challenge is primarily any gainst the observations ofthe Tribunal whereby he declined to hold that there was sub-letting of the premisesin favour of four persons, namely, S/Shri Dewan Chand Gupta, Kirori Mal, BabuPrasad and Madan Singh. The grievance of the appellant is that no written consentwas taken by the tenant to induct sub-tenants which is a pre-requirement underSection 14(1)(b) of Delhi Rent Control Act (in short the Act). That the Tribunal fellin error in presuming that there was an implied consent because of the rent notedated 12/03/1959. In the absence of any notice of creation of sub-tenancy bythe sub-tenants petition of the appellant ought to have been allowed and evictionorder passed.

(2.) In order to appreciate the challenge, the brief facts of the case are that ShriOnkar Nath was inducted as tenant of the whole of the building bearing No. 1194,Ward No., V, Maliwara, Nai Sarak, Delhi on a monthly rent of Rs. 112.74 paise. Theappellant alleged that the tenant sub-let the premises without her consent in writingwhich, was a requirement of law, as the sub-tenancy was created after 9/06/1952. The respondent took the plea that sub-tenants already occupying the premisesas of right. Two of the sub-tenants, namely, Shri Kirori Mal and Shri Dewan ChandGupta were in occupation prior to the creation to tenancy in favour of Onkar Nathby the then owner/landlord Shri Inder Narain. This fact, according to the respondent, finds mention in the rent note executed between him, Inder Nath, DewanChand and Kirori Mal. The terms of the rent note were accepted by all of them. Thesaid rent note was executed on 12/03/1959, the learned Additional RentController (in short the ARC) on the basis of the evidence on record concluded thatthere was no sub-letting in favour of Jyoti Prasad, Suresh Chand, Babu Prasad,Madan Lal, M/s. Mahalakshmi Saree Bhandar, Mahalakshmi Saree Kendra, GuptaSales Corporation etc. He held that the occupation of the other sub-tenants wasunauthorised. Further that these persons claimed their right through two subtenants who were admittedly in possession on the date of creation of tenancy andthe same was with the consent of the landlord. Learned ARC, however, held thatsince the tenancy by these persons as sub-tenants was violative of Clause (b) ofSection 14(1) of the Act, therefore, passed the order of eviction against them. RentControl Tribunal in appeal upheld the contention of Additional Rent Controllerwith regard to alleged sub-letting in favour of Jyoti Parsad and Suresh Chand.Regarding Babu Parsad and Madan Lal it was held that they were not residing inthe portion of the premises. Therefore, there was no question of sub-letting on theircount. Similarly, with regard to M/s. Mahalakshmi Saree Bhandar. Tribunal heldthat since there was genuine partnership and the person occupying the premiseswas partner hence there was no question of sub-letting. After discussion the legaland factual position, the Tribunal reversed the judgment of the learned ARC. Hedismissed the eviction petition,

(3.) The landlord has come up in second appeal thereby assailing the findingof the Tribunal on the ground that the evidence led with regard to the subletting had not been correctly appreciated by the Tribunal. Mr. Ramesh Chandra,Senior Advocate appearing for the appellant contended that the rent note exhibitRW 4/7 could not treated an implied consent of the landlord to create sub-tenancy.According to him, Delhi Rent Control Act stipulates two things namely a writtennote by the tenant when he wanted to sub-let and consent of the landlord for subletting in writing. But in thiscase no such notice orcreation of sub-tenancy was givento the landlord. In fact, according to Mr. Ramesh Chandra, a specific consent to sublet in writing has to be shown by the sub-tenant. Having not shown and merereliance on an unapproved document could not have been relied upon by theTribunal. Similarly, notice under Section 17 of the Act had also to be proved. Tosupport his contention he placed reliance on the decision of this Court in the caseof Daulat Singh v. RajenderKumar, 1993 RLR page 591, and Girdhari Lal v. BalbirMathur, 1986 RLR page 484. In this case it was held that the essence of therequirement, therefore, is that the consent of the landlord to the sub-letting andnotice of the creation of the Sub-letting have to be evidenced bywriting. The writinghas to indicate clearly the consent of the landlord to the creation of a sub-tenancyand his knowledge of the particular sub-tenancy after its creation. The writingrelating to the consent and the writing relating to the knowledge (notice) may bedifferent documents or they may telescope into the same document. But both aremissing in this case. He, therefore, further contended that unregistered lease deedlike ExhibitRW4/7permittingletting to the associate cannotbe looked into. Puttinganother person in occupation of the premises amounts to parting with possession.Neither Mr. Dewan Chand nor Kirori Malwere associates of the tenant. They weredifferent entities. They were paying rent to the tenant for their occupation,therefore, it amounts to sub-letting which was not permissible under law. Theunregistered rent note dated 12/03/1959 could not be relied upon by the Tribunal.