P D ASWANI Vs. KAVASHAH DINSHAH

JUDGEMENT

(1.) OPPONENTS Nos. 4, 5 and 6 who were defendants Nos. 1 to 3 in the suit obtained a lease from opponents Nos. 1, 2 and 3 who are the plaintiffs to the suit, on 27-3-1942. The lease was to commence from 1-4-1942, and its duration was up to 31-8-1943, with an option to the lessees to renew it for eight months. The lessees exercised the option and thereafter the lease was renewed from time to time and it was finally renewed on 1-11-1948, and its duration was up to 31-10-1949. On 1-9-1949, defendants Nos. 1 to 3 sublet the premises to the petitioner, who is defendant No. 4 in the suit. On 29-9-1949, defendants Nos. 1 to 3 informed the plaintiffs that they were going to surrender the premises on 31-10-1949, and that defendant No. 4 would give them possession. As defendant No. 4 refused to surrender possession on 31-10-1949, the plaintiff's filed a suit for ejectment on 16-1-1950. The trial Court dismissed the suit, but in appeal the learned Assistant Judge has reversed the decision of the trial Court and passed a decree in favour of the plaintiffs. It is against that decision that this revision application is preferred.

(2.) NOW, it is sufficient to uphold the decision of the learned Assistant Judge below on the ground that the sub-lease created in favour of the petitioner was prohibited by law under Section 15 and therefore he is not entitled to the protection of the Rent Act. Under the lease the lessee had a right to sublet, but that right was subject to certain conditions and one of the conditions was that the lessees had to inform the landlords of the person to whom they were going to sublet two days before the subletting, and the case of the plaintiffs was that in this particular case the subletting was done without carrying out this condition.

(3.) MR. Desai's contention is that Section 15 does not prohibit a sub-tenancy which is permitted under a contract between the landlord and the tenant, and even if the sub-tenancy is created by the tenant under such a contract contrary to the conditions laid down in the contract, the sub-tenancy is not void, whatever rights the landlord may have for breach of the covenant by the tenant. Mr. Desai says that Section 15 only prohibits the creation of a sub-tenancy contemplated by Section 108, Transfer of Property Act. In other words, according to Mr. Desai if there is no contract which permits the tenant to sublet, then in view of Section 15 the tenant cannot rely upon his right to sublet under Section 108, Transfer of Property Act. In other words, all that Section 15 does is to take away the statutory right of the tenant to sublet under Section 108, Transfer of Property Act, but Section 15 does not affect the contractual right of the tenant to sublet if that right flows from a contract between himself and his landlord. In my opinion that contention is entirely untenable, looking to the clear language used by the Legislature in enacting Section 15. Section 15 provides: