PREMNAEAIN PHULCHAND Vs. ZENAB BAI MUNAHI ALIAS HUSSAIN

JUDGEMENT

(1.) THIS second appeal is by defendant No. 2, a sub-tenant.

(2.) THE plaintiff's suit is for ejectment of Chhaganlal son of Nannolal alias Chhotelal (defendant No. 1) on the ground that he was in arrears of rent and remained in arrears in spite of notice of demand. It is also alleged that the house is required for residence of the plaintiff's daughter's son. Defendant No. 2 is made a party as he is a sub-tenant. He was according to the plaintiff, inducted as a sub-tenant without any permission of the plaintiff. THE defendant No. 1 remained ex parte, but the suit is contested by defendant No. 2. It is alleged that the defendant No. 2 is not a sub-tenant but that the tenancy is a joint tenancy of both the defendants. Inasmuch as no notice was served on the defendant No. 2, there is no determination of the tenancy and the suit is not maintainable. It is also urged that no demand notice was served on the defendant No. 1 as alleged; nor was any demand made from the defendant No. 2. THE need of residence is also denied.

(3.) THE present suit is governed by the provisions of the Madhya Pradesh Accommodation Control Act, 1955, which was repealed by the present Act of 1961. Shri P. S. Khirwadkar, learned counsel for the appellant (defendant No. 2), urged before me that the lower Courts were in error in passing a decree of ejectment against the defendant No. 2. Shri Khirwadkar urged that though under the Transfer of Property Act a sub-tenant's rights come to an end along with those of the tenant and he has no separate rights against the landlord, the Accommodation Control Act gives protection to the sub-tenant, independent of the tenant; and unless the requirements of section 4 are satisfied as against the sub-tenant as well, no decree for his ejectment can be appropriately passed. Shri Khirwadkar referred to the decision of the Supreme Court in Punialal v. Bhaguat Prasad1 and urged before me that the protection which is afforded to the tenant or the sub-tenant under the Accommodation Control Act comes into operation only after the relationship of lessor and lessee comes to an end by an appropriate notice served on the tenant under the Transfer of Property Act. Shri Khirwadkar urged that the provisions of the Accommodation Control Act, as already stated, afford the protection to the sub-tenant also independent of the tenant, and that the notion peculiar to the Transfer of Property Act that a sub-tenant has no independent status of his own or rights as against the lessor should not be allowed to project itself while considering the provisions of the Accommodation Control Act. Shri Khirwadkar says that in the definition of "tenant" in the Accommodation Control Act a sub-tenant is also included. This clearly means that the Act is designed to give protection to a sub-tenant as well. He says that wherever the expression "tenant" occurs in section 4, read "sub-tenant"; read that way, it becomes obvious that a landlord cannot evict a sub-tenant unless it is shown that he is in arrears of rent and that he failed to make payment of the arrears within one month of the service upon him of a notice of demand. Shri Khirwadkar, therefore, urged that as no notice was served on the sub-tenant, the decree of ejectment passed against him was not in order.