THAKURAIN DULAIYA Vs. SHIVNATH PUNJABI

JUDGEMENT

(1.) SMT. Thakurain Dulaiya, the plaintiff-appellant, is the owner of House No. 828, lordganj, Jabalpur, and the respondent No. 1 (defendant No. 1) is the tenant thereof at the monthly rent of Rs. 120/ -. The plaintiff filed the suit, out of which this second appeal arises, for ejectment on various grounds including the ground that the defendant No. 1 had sub-let part of the premises to the defendants 2 and 3 and that the subletting being unlawful she was entitled to eject the defendants under Section 12 (1) (b) of the Madhya Pradesh Accommodation Control Act, 1961. The defendant No. 3 vacated the premises during the pendency of the suit. The defence of the defendants 1 and 2 was that the part of the premises was sublet to the defendant No. 2 at a tripartite contract between the plaintiff, the defendant No. 1 and the defendant No. 2, arrived at between the parties at mauranipur in April 1955. It was not disputed that the contract was oral; but the submission was that it being a tripartite contract, it was not unlawful.

(2.) THE trial Court negatived other grounds urged by the plaintiff but held that under Clause 12-A of the C. P. and Berar Letting of Houses and Rent Control Order. 1949 (hereinafter referred to as the 'rent Control Order'), which was in force in 1955, a tenant was prohibited from sub-letting any portion of the accommodation except in pursuance of a condition in the lease-deed executed in favour of the tenant or with the written consent of the landlord; and as no written consent of the landlady was obtained in this particular case, the sub-letting was unlawful and that the plaintiff was entitled to a decree for ejectment.

(3.) THE lower appellate Court, however, felt bound by the decision of Shiv Dayal, J. in Ramkishan v. Jamuna Prasad, SA No. 357 of 1962 D/- 27-11-1962 (MP), wherein it was held that Clause 12-A of the Rent Control Order was ultra vires and unconstitutional. In this view of the matter, it was held that the subtenancy in favour of the defendant No. 2 was not unlawful and that the plaintiff was not entitled to a decree for ejectment. The plaintiff has now come up in second appeal.