SATYA VIR SINGH Vs. KEWAL RAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit for possession which the plaintiff filed against the defendant in res pect of the accommodation detailed in the plaint. A certain amount was claimed as arrears of rent or, in the alternative, as damages for illegal use and occupation. Pendentilite and future damages for such illegal use and, occupation were also claimed. Plaintiff also claimed some amount on the ground of electricity charges at the agreed rate. In brief, the plaint allegations were that the defendant was a month-to-month sub-tenant at a rent of Rs.12 - per month exclu sive of electricity charges and the water charges which were to be paid by the defendant to the plaintiff at the rate of Rs.2/- per month. Rent fell in arrears with effect from September 1, 1963. On Febru ary 26, 1964 the plaintiff served; a notice of demand asking for the payment of the arrears of rent. The notice was received by the de fendant on February 20, 1964 but the arrears were not paid within one month of the receipt of the said notice. Thereafter by a second notice dated April 6, 1964, the defendant's tenancy was terminated by the plaintiff. Electricity charges were stated to be due from the defendant from August 16, 1963. In the alternative, the plaintiff pleaded that if the defendant was not found to be the plaintiff's sub-tenant in law then his possession should be treated as that of a licencee initially and subsequently as that of a trespasser. The de fendant contested the suit. He admitted the sub-tenancy but plead ed that it was illegal and unenforceable. Some dispute was joined on the ground as to which party was liable for annual white-washing and repairs etc. and whether the defendant was entitled to deduct one month's rent from the arrears of rent, demanded by the plaintiff. The notices were alleged to be illegal. Lastly, it was contended that the damages for use and occupation could not be more than the pro-purtronate annual reasonable rent in respect of the accommodation in possession of the defendant. The trial court framed the necessary issues and tried the suit. It held that as the plaintiff himself was the tenant of the accommodation in dispute, he could not sublet the same to the defendant without the permission of the District Magis trate under Section 7(3) of the repealed U.P. Act No. Ill of 1947.He, therefore, held that the sub-tenancy was illegal and unenforce able. However, it was held that the plaintiff was entitled to succeed on the alternative ground of the defendant's possession being that of a trespasser. The plaintiff was also held entitled to damages for ille gal use and occupation by the defendant. The trial court held that the defendant was not entitled to any deduction for annual repairs and white-washing. With these findings the trial court decreed the suit for recovery of Rs.266.15 and for possession over the accommo dation in dispute. Pendentelite and future damages were also dec reed at the rate of Rs. 141- per month up to the date of the delivery of possession on payment of additional court fee. The defendant went up in appeal to the lower appellate court but did not succeed. The said court dismissed the appeal and upheld the judgment and decree passed by the trial court. Feeling aggrieved, the defen dant has now come up in the instant second appeal and in support and in opposition thereof, I have heard the learned counsel for the parties. Shri S.N. Misra, learned counsel for the appel lant, has contended that after having held that the sub-tenancy was illegal in law and void, it was not open to the courts below to have passed a decree for eviction of the defendant on the alternative ground of the defendant being a trespasser in the property. His con tention was that it was almost indirectly enforcing the contract which-the courts themselves held was strictly prohibited in law. I have given my attention to the said contention but the same is not acceptable to me. In my opinion, the fact that a contract of sub tenancy is illegal in law does not mean that the tenant should stand permanently deprived of the accommodation in his tenancy. It will be the same as if a contract of tenancy were held to be void and illegal. Surely it cannot be held that the owner of the property would stand permanently deprived of his property and the defendant would never be called upon to vacate the same merely because the contract of tenancy is held to be illegal and void. The contract of tenancy would, of course, be not enforceable but it is always open to the house-owner of the tenant-in-chief to fall back in his title. If there is no contract of tenancy or sub-tenancy in law, then the situa tion is that the defendant's possession can be treated, to have been originally as that of a licencee but subsequently when he was called upon to vacate and he refused to do so as that of a trespasser. There are Full Bench decision of this Court reported in Abdul Ghani v. Mt. Babni I.L.R. 25 All. 256 and Balmakund v. Dalu I.L.R. 25 All. 498. Where it has been laid down that even in a suit based on a contract of tenancy, it is open to the court to decree the suit for eviction on the ground of title if the alleged contract of tenancy does not stand proved. The said Full Bench decisions have been approved by the Supreme Court in Bhagwati v. Chandra-maul A.I.R. 1966 S.C. 735. When that is the settled position in law, I do not think that the position can be any different in a situation where the contract of tenancy or sub-tenancy is held to be illegal and void and unenforceable. The original title is al ways there to enable the house-owner or the tenant-in-chief to claim back possession from the occupier. The lower appellate court has also referred to Property Agents v. Shamaher Bahadur 1964 A.L.J. 7521 and to Anand Swarun v. Taiyab Hasan A.I.R. 1943 All. 279 and Woman Shrinivas v. R. B. and Co. A.I.R. 1959 S.C. 689. The lower appellate court has also referred to Sheo-karan Singh v. Parbhu Narain Singh I.L.R. 6 All. 167. These cases undoubtedly are against the contention raised on behalf of the appellant by his learned counsel. Learned counsel for the appellant has sought to derive support from A.I.R. 1959 S.C. 689. I have gone through this authority. It is with reference to the provisions of Bombay Rents (Hotel and Lodging House Rated Contract Act (Act No. 57 of 1947). In my opinion, the authority has to be read in the context of the pro visions of Sections 13 and 15 of the said statute which have been a examined in the said case. THIS case certainly does not lay down that no suit shall be on the ground of original title in case the con tract of tenancy or sub-tenancy is found to be illegal. The following observations, though made in the context of Section 13 of the Bom bay statute, on the contrary negative the contention made by the learned counsel: "The appellant relied on the maxim in part delicto potiore est conditio pesidentis to support his plea that the respondent could not enforce his right under Section 13 (3). But this maxim 'must not be understood as meaning that where a transaction is vitiat ed by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that where the circumstances are such that the court will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed. Per Dr. Parcq, L.J. in Bowmakers Ltd. v. Barnet Instruments Ltd. 1945 (1) K.B. 65, 72. In view of the aforesaid discussion. I find no merit in this appeal. Learned counsel has made a prayer that the appellant may be granted some reasonable time to vacate the suit accommodation. In my opinion, four months' time should be; granted to him to hand over the vacant possession to the plaintiff-respondent. The courts -4 below have passed a decree granting mesne profits, pendentelite and future till the date of delivery of possession, I should like to make it clear that on the authority of the Division Bench decision of this court reported in Jagdish Chandra v. Bulanoi Das A.I.R. 1959 All 242 which has been affirmed by the Supreme Court in Subranna v. Subranna A.I.R. 1965 S.C. 1365 the decree should be construed as one under Order 20 Rule 12 C.P. Code. The appeal is dismissed with costs subject to the aforesaid ob servation that the appellant shall have four month's time to give delivery of possession to the plaintiff-respondent and the decree for eviction shall be executable only after four months.