Mukesh Chand and others vs Jamboo Pershad and another

Capoor, J.—This revision by the Plaintiff-landlord is directed against the judgment and decree made in appeal by the Senior Subordinate Judge, Delhi, on the 22nd of May 1957. It arises in the following circumstances.

The Plaintiff-Petitioner is the Landlord of certain premises situated in Chandni Chowk, Delhi. He is living on the first floor and in the ground floor the original tenant was firm Sanwal Dass Jamboo Pershad. Jamboo Pershad, Defendant No. 1, was one of the partners of the firm and Jagdish Pershad, Defendant No. 1 is the son of the other partner Sanwal Dass. The firm was dissolved in October 1950 and with effect from 1st October 1950 Jamboo Pershad decame the tenant of the premises in dispute. The present suit for eviction against the Defendants was filed on the 24th of December 1954 on the following two grounds:

(1) non-payment of rent, as appearing in Clause (a) of the proviso to Sub-section (1) of Section 13 of the Delhi and Ajmer Rent Control Act, 1952 (Act No. XXXVIII of 1952), hereinafter referred to as the Act,

(2) that the tenant has sub-let, assigned or otherwise parted with the possession of the part n arked ''Y'' of the premises to Defendant No. 2, i. e. the ground appearing in Sub-clause (i) of Clause (c) of the proviso to Sub-section (1)of Section 13.

The Defendants resisted that suit and the case went to trial on the following issues:

Whether the Defendant No. 1 has deposited the arrears of rent and costs in accordance with law ?

Whether the Defendant has sub-let or otherwise parted with -possession of the premises in suit ? If so, to what effect ?

Whether the Plaintiffs have acquiesced in the sub-letting etc and have waived their right to question the same ?

What is the standard rent of the premises in suit and whether this plea cannot be raised by the Defendant ?

What is the agreed rate of rent ?

Relief.

The learned Subordinate Judge found issues 1 to 3 in favour of the Defendants, its view on the latter issue being that Defendant No. 2 was the licensee of Defendant No. 1 and not the sub-tenant with regard to the part of the premises marked ''Y'' which it may be mentioned, fell in the major portion of the premises for which the rent was Rs. 75/- per mensem. On issue No. 4 it was found that the premises consisted of two tenancies (1) the premises except the kothris''Z'' and ''M'' as marked on the plan Exhibit P. 1 filed along with the plaint, (2) the portion shown as ''Z'' and ''M'' on this plan. It was further found that the standard rent with regard to the portion No. (1) was Rs. 75/- per mensem and that with regard to the portion No. 2 Rs. 25/- per mensem. In dealing with issue No. 6, the learned Subordinate Judge referred to an application fifed in August 1955 by the landlord under Sub-section (5) of Section 13 of the Act for deposit of the arrears of rent and future rent month by month as it fell due This application had been allowed by the order of learned trial Court, dated the 12th of August 1955, and the tenant was directed to pay the arrears of rent at the rate of Rs. 100/-per mensem and also future rent at the same rate month by month in accordance with law. The trial Court found that Defendant No. 1 had made a default in making the deposits for the months of September and November 1955 but this default could penalise the Defendants only in respect of either of the two tenancies and it ordered that the defence of the Defendants as against the claim of ejectment from the two kothris shown as ''Z'' and ''M'' in the plan P. 1 be struck out.

In consequence of these findings, the trial Court passed a decree for ejectment in favour of the Plaintiff and against the Defendants in respect of these two kothris and dismissed the suit of the Plaintiff with respect to the rest of the premises in dispute.

Both the parties appealed against this decision. The learned Senior Subordinate Judge, affirmed the findings of the trial Court on the material issues in the case, but held that the defence against eviction, so far as this portion was concerned, could not be struck out and hence the suit of the Plaintiff in regard to it had also to be dismissed. The result was that the Plaintiff''s appeal failed and the Defendants'' appeal was allowed.

The appellate judgment of the learned Senior Subordinante Judge appears to be unassailable not only because the questions, which he decided, are purely questions of fact but also on the merits. The only legal objection taken up by Mr. Shiv Narain Shankar, learned Counsel for the Plaintiff, was that in the written statement the Defendants did not set up any plea as to possession by Defendant No. 2 of the portion marked''Y''being merely permissive as a licencee and that, therefore, the Courts below were not justified in setting up a case for the Defendants which they had not pleaded This argument is mis-conceived. In paragraph 3 of the plaint, the Plaintiff had merely said that Defendant No. 1 had sub-let the portion marked ''Y'' to Defendant No. 2. The Defendants in the corresponding paragraphs of the written statement denied that there was any subletting and added that Defendant No. 2 was using the portion marked ''Y'' without paying any rent to Defendant No. 1. This should be taken to imply that Defendant No. 2''s possession was permissive and this was, the case which was argued before both the Courts below. There is, therefore, no force in this objection.

The learned Counsel for the Petitioner has conceded that the decree of the tower appellate Court, dismissing the suit with regard to the kothris ''Z'' and ''M'' (for which the rent was Rs. 25/- per mensem), is correct. The only other grievance put forward by him is that once it was found that there had been default in complying with the order under Sub-section (5) of Section 13, the defence against ejectment should have been struck out as a whole, i. e. in respect of the major portion of the premises for which the rent was Rs. 75/- per mensem. However, this argument loses sight of the fact that the plaint proceeded on the basis that there were two separate tenancies and accordingly the Plaintiff cannot now be permitted to say that both the tenancies may be lumped into one. So far as the tenancy at Rs. 25/- per mensem was concerned, once it was held that there had been compliance with Sub-section (2) of Section 13 (the subject-matter of issue No. 1), there could be no question of eviction. Mr. Gurbachan Singh has argued and. in my opinion, rightly, that after the 25th of March 1958 which was the extended date by which compliance had to be made and was made under Sub-section (2) of Section 13, the matter of eviction remained alive only with regard to the tenancy at Rs. 75/- per mensem, and hence the order of the trial Court made on the application under Sub-section (5) of Section 13 for deposit of Rs. 100/- per mensem was not correct and order should have been made for deposit of Rs. 75/- per mensem only. Now, both the Courts below have found that the deposits made from time to time in compliance with the order under Sub-section (5) of Section 13 covered the rent of the tenancy at Rs. 75/- per mensem. So, there could be no question of the defence being struck out so far as this tenancy is concerned. Mr. Shiv Narain Shanker then argued that if the evidence adduced by both the Plaintiff and the Defendants on issues 2 and 3 was taken into account the findings of the learned Subordinate Judge on these issues could not be supported. He, however, referred to paragraph 10 of the judgment of the lower appellate Court in which it was mentioned that even if the evidence led by the Defendants was ignored, there was sufficient material still left on the file to warrant the findings in favour of the Defendants on issues 2 and 3. This observation appears to have been male by way of abundant caution and even otherwise it is justified because of the position of the portion marked ''Y'' The plan. Exhibit P. I, shows that there are no doors to it and it is described as a dalan. To the same effect was the statement made as a witness by the Plaintiff. As the plan would show, access to it was controlled through the main gate at ''Q'' In these circumstances, the inference arose that the possession by jagdish Pershad for the portion marked ''Y'' was not exclusive but premissive. So far as waiver is concerned, it is admitted that Jagdish Pershad was in the premises even after the firm Sanwal Dass Jamboo Pershad was dissolved and Sanwal Dass became the tenant. The landlord, who lived in the upper portion of the premises, could not have been unaware of this fact but he accepted the rent of the entire premises in dispute from Sanwal Dass right up to 30th of November 1951. It was in these circumstances that issue No. 3 as to waiver was found in favour of the Defendants.

The conclusion is that there is no merit in this revision which is dismissed with costs.

Dulat, J.

I agree.