BAL KISHAN Vs. VASU DEO

JUDGEMENT

(1.) DOUBTING the view taken in the judgment of Hon'ble Lodha, J. in Kewal Ram v. Mangu Mal, 1974 Raj LW 165 : (AIR 1974 Raj 201), Hon'ble the Chief Justice vide a reference order dated 18.8.1994 (wrongly written as 18.7.1994) has referred the matter to be decided by a Larger Bench for determining legal propositions, emerging from the facts in the present revision petition and for application of law in the given situation of the case in hand.

(2.) TO enumerate the facts, it shall be necessary to give certain facts of the present case. The petitioner Bal Kishan is the tenant of the premises in question. The non-petitioner is subtenant, which subtenancy had been created by the tenant. Admittedly the landlord of the premises in question is one "Sarvjnik Sampati Trust." The dispute in the present revision petition is in regard to sub lease between the tenant and subtenant only. The subtenant is said to have committed default of payment of rent to the tenant for a period from 1.1.81 to 31.12.82. The monthly rent is said to be Rs. 150/- p.m. In addition to recovery of rent, the plaintiff-tenant had also sought the eviction from the premises in question of the respondent/non-petitioner. The respondent/non-petitioner had admitted the sub tenancy, but had tried to defend himself on number of pleas i.e. (i) the plaintiff himself was a tenant at a lesser rate (ii) he subletted the premises to respondent at a higher rent (iii) it was also alleged that the landlord had also filed suit for eviction against his tenant-petitioner on 30.3.83 (iv) and the very important plea taken by the subtenant was that he had attorned in favour of "Sarvjnik Sampati Trust" w.e.f. 1.4.83 by executing a rent note and, "therefore, he was no more a tenant or subtenant to the petitioner tenant and not liable to be evicted from the demised shop. He pleaded further that the petitioner tenant can only recover rent upto 31st March, 1983 for the reason that so-called sub tenant respondent has already attorned in favour of original landlord.

(3.) VERY important question which arises in the present case is whether a subtenant, who has been inducted either with the consent of original landlord or without the consent of such landlord, can straightway attorn his sub- tenancy in favour of original landlord and thus depriving the tenant who has got a statutory status under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short as 'Rent Act'), and has certain rights and obligations, can be bye-passed by such compromise between the subtenant and original landlord or by connivance of subtenant with the original landlord to defeat the statutory protection of the tenant. It is true, if the subtenancy has been created without the consent of landlord, there are some disabilities attributed to the original tenant and the landlord can always file the eviction petition on the ground that premises in question has been let-out to subtenant without his consent. But at the same time, subtenancy can be created by a tenant with the consent of the landlord and in such situation the landlord is not authorised to seek eviction of the tenant on the ground of sub-letting, if the subtenancy is with the consent of landlord. In either of the situation, the remedy lies before the prescribed Court under the Rent Act to get the rights determined viz. a viz. the landlord and the tenant. It will not be wrong to say in legal fiction that tenant who has created the subtenancy is deemed to be a landlord viz a viz the subtenant. Whether the subtenancy is authorised or non-authorised, the subtenant derives his little, status, rights and obligations from the tenant. He has no direct link with the original landlord. The tenant in chief is the landlord in this very restricted sense qua his subtenant. This has been so held in Natraja v. Bal Subramanium,1957(2) Mad LJ 492 and The Public Prosecutor v. A. J. Gladestone, (1963) 2 Andh WR 388.