SHYAM BABU Vs. DISTRICT JUDGE MORADABAD AND O

JUDGEMENT

(1.) THIS writ petition is directed against the judgment of the District Judge, Moradabad dated 24th March; 1977 by which the appeal filed by the petitioner was dismissed and the order of the prescribed Authority was affirmed. The facts which led to the filing of the present writ petition are these. One Murari Lal was the owner of the disputed shop situated in Sheo Sahai Chatram Market Chandausi District Moradabad. He had four sons and a wife Shrimati Ram Kali. During his life time in 1937, a partition took place in between himself and his other family members. The shop in dispute fell in the share of Murari Lal and Narendra Mohan, his eldest son. After the death of Murari in 1960, the interest of the deceased Murari Lal in the said shop was inherited by Rejendra Kumar and Brijendra Kumar along with their brother Narendra Mohan. It, however, appears that Krishna Kumar, respondent No. 20, who was the tenant of the premises inducted Sbyam Babu, the petitioner into possession of a portion of the shop in dispute as a sub-tenant. Rajendra Kumar and Brijendra Kumar filed suit No. 181 of 1968 in the Court of Munsif Chandausi for the arrears of rent and ejectment from the accommodation in dispute against Shyam Babu, the petitioner and Krishna Kumar, respondent No. 20. One of the grounds taken by the landlords was illegal sub-letting of the shop by Krishna Kumar to Shyam Babu. The suit was contested by Krishna Kumar, who pleaded that the sub-tenancy had been created with the consent of the landlords. The learned Munsif dismissed the suit on 24.4.73 holding that sub-tenancy had been created by Krishna Kumar with the consent of the landlords and, therefore, neither was Krishna Kumar nor Shyam Babu was liable to eviction on that ground. Thereafter an application was filed by Rajendra Kumar and Brijendra Kumar under section 21 of the U. P. Urban and Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "the Act No. 13 of 1972"), for the release of the premises in occupation of the petitioner and Krishna Kumar on the ground that the same was required for their personal use. The application was resisted by Krishna Kumar as well as Shyam Babu. Both the persons denied that the need of the landlords was genuine. They in defence set up their own needs and contended that they would, suffer greater hardship in case the application filed by the landlords for the release of the premises is allowed. The prescribed Authority allowed the application partly granted permission to the landlords with respect to the portion which was in occupation of Shyam Babu and rejected the same as against Krishna Kumar. Aggrieved by the aforesaid judgment, the landlords as well as the petitioner filed two separate appeals before the District Judge. Landlords were aggrieved by the order, in so far as their application was rejected against Krishna Kumar, whereas Shyam Babu the petitioner challenged the release of the premises granted to the landlords as against him. Both the appeals were decided by the impugned judgment, on 24th March, 1977. The learned District Judge dismissed both the appeals and affirmed the order passed by the prescribed Authority. Shyam Babu, the petitioner filed the present writ petition challenging the aforesaid two orders. The first point raised before me by the learned counsel for the petitioner was that the Appellate Court as well as the prescribed Authority committed an error in allowing the application filed by the landlords for the release of the shop without considering and comparing the need of the petitioner with that of the landlords. His submission was that as the petitioner has been put into possession of the shop with the consent of the landlords, he was substituted in place of the tenant-in-chief and, therefore, the application for the release could not be granted without considering his need. The submission made by the learned counsel requires the consideration of the various provisions of the law throwing light on the subject. As the case of the petitioner was that the sub-letting was done in 1962, the provision of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as "the old Act"), may be looked into first. Section 7 of the old Act deals with the control of letting. Subsection (3) of Section 7 provides that no tenant shall sub-let any portion or the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously obtained. The old Act was repealed by U. P. Act No. 13 of 1972. Sub-section (1) of section 25 of the new Act, which is different than sub-section (3) of Section 7 of the old Act, lays down that no tenant shall sub-let whole or any portion of the building under his tenancy. Sub-section (2), however, provides that the tenant may, with the permission of the District Magistrate sub-let a part of the building. The difference in the two provisions is that in the former Act there was no prohibition laying down that no tenant shall sub-let whole of the building under his tenancy whereas such a prohibition is now contained in sub-section (4) of section 28 Since, in my opinion, the difference between the two provisions is not material for purposes of the present case, I need not dilate upon it any further. It would thus be seen from sub-section (3) of Section 7 of the old Act that sub-letting, at the time when the old Act was in operation, could be done only with respect to a portion of the tenancy by the tenant-in-chief with the permission of the landlord in writing and of the District Magistrate previously obtained. In the instant case admittedly no consent of the District Magistrate was obtained. The permission relied on by the petitioner was that of the landlords and for that purpose reference was made to the finding given by the learned Munsif in suit no. 181 of 1968 where it was found that Krishna Kumar the tenant-in-chief sub-let the premises to Shyam Babu, the petitioner with the permission of the landlords. THIS finding was attempted to be challenged by the learned counsel for the landlords and it was urged that the same was erroneous. The Proposition that an erroneous judgment operates as res-judicata between the parties is beyond any shadov of doubt. The finding, therefore, given in suit no. 181 of 1968 by the learned Munsif that the sub-letting had been done with the permission of the landlords is binding on them. What is now, however, required to be found is the effect of that finding. The argument advanced on behalf of the petitioner was that since he was elevated to the status of a tenant, the application for release under section 21 of the Act could not be granted without considering the need of the petitioner as required by sub-section (i-A) of Section 21. I do not find any merit in this submission. A bare perusal of Section 21 would show that the need which is required to be considered is that of the tenant and not that of the sub-tenant. There is nothing either in the old Act or in the new which could be pointed out by the learned counsel for the petitioner that as a result of the creation of the subtenancy with the permission of the landlord, a sub-tenant comes in direct contact with the landlord and that the tenant-in-chief disappears from the scene. Merely because the landlord-grants permission to the tenant-in-chief to sub-let a portion to the person of latter's choice would not create any privity of contract either with respect to the payment of rent or in respect of any other matter. The tenant-in-chief continues to be liable to pay rent to the landlord even in respect of the portion in his occupation as well as in possession of the sub-tenant. It is indisputable that in between the original lessor and the sub-lessee, there is no privity of contract and, therefore, sub-lessee does not acquire as a general rule, by virtue of sub-lease any independent right to inforce against the original lessor. Sub-lease is, in fact, grant by a tenant of an interest in the demised premises less than how own, retaining to himself reversion. Creation of sub-lease did not have the effect of determining the right of the tenant-in-chief in the pioperty leased to him or even depriving him of his right to secure possession of the accommodation sub-let. The interest of the tenant-in-chief is kept intact, as observed by a Full Bench in the case of Ram Mani Devi v. Rent Control and Eviction Officer(1976 (2) ALR 76), the interest of the tenant-in-chief in the leased property would not be completely lost by the creation of sub-lease whether the sub-lease was created in accordance with or in contravention of sub-section (3) of Section 7 of the Act. The only effect on the right of a landlord at the most if at all, when a sub-lease is created is that he would not be entitled to bring a suit for ejectment against the tenant-in-chief and the sub-tenant on the ground of illegal sub-letting, inasmuch as he having consented to sub-letting, cannot be permitted to take it as a ground for eviction. Counsel for the petitioner referred to a decision of the Supreme Court reported in Murlidhar v. State of U. P.( AIR 1974 SC 1924.), and urged that since it was held in this case that a landlord cannot succeed unless he has made out a case for eviction on one of the grounds mentioned in Section 3 of the Act, this Court should hold in conformity with the said decision that the suit of the landlords, filed under section 21 of the Act, cannot be decreed unless the landlord succeeded in establishing that he would suffer greater hardship in case the application was rejected. It is true that in Murlidhar's case (supra) the Supreme Court laid down that the requirement of Section 31 will have to be proved but the question whether a landlord was required to establish that he would suffer greater hardship in case the application for release was rejected was not in issue in the said case. THIS decision is infact distinguishable and thus is not helpful to the petitioner. As already observed above, the sub-tenant will not acquire the status of a tenant and would be evicted when a landlord requires premises for his own occupation. In such an eventuality the need of the tenant-in-chief alone is required to be considered as against the landlord. The next submission made was that as the prescribed Authority who decided the case bad no jurisdiction to do so, the judgment rendered by it was illegal. It is not in dispute that the appeal was filed against the same to a court which was competent and had jurisdiction to entertain it. As held by the Supreme Court in Janardan Reddy v. State of Hyderabad(AIR 1951 SC 210.) that if a court acts without jurisdiction, i.e. an appeal would lie to the Court to which it would lie, if its order was without jurisdiction. Consequently, even if the Prescribed Authority had no jurisdiction to decide the application, since the appeal was preferred by the petitioner himself to the Court of the learned District Judge and the same was decided on merits who admittedly had jurisdiction to decide, the objection raised by the learned counsel for the petitioner has no substance and must be overruled. In the result, the writ petitioner fails and is dismissed with costs. The stay order is vacated.