Satya Vir Singh vs Kewal Ram

M.P. Mehrotra, J.—This second appeal arises out of a suit for possession which the Plaintiff filed against the Defendant in respect of the accommodation detailed in the plaint. A certain amount was claimed as arrears of rent or, in the alternative, as damages for illegal use and occupation. Pendentilite and future damages for such illegal use and occupation were also claimed. Plaintiff also claimed some amount on the ground of electricity charges at the agreed rate.

In breif, the plaint allegations were that the Defendant was a month-to-month sub-tenant at a rent of Rs. 12/-per month exclusive of electricity charges and the water charges which were to be paid by the Defendant to the Plaintiff at the rate of Rs. 2/- per month. Rent fell in arrears with effect from 1st September, 1963. On 25th February, 1964 the Plaintiff served a notice of demand asking for the payment of the arrears of rent. The notice was received by the Defendant on 26th February, 1964 but the arrears were not paid within one month of the receipt of the said notice. Thereafter by a second notice dated 6th April, 1964, the Defendant''s tenancy was terminated by the Plaintiff. Electricity charges were stated to be due from the Defendant from 10th August, 1963. In the alternative, the Plaintiff pleaded that if the Defendant was not found to be the Plaintiff''s sub-tenant in law then his possession should be treated as that of a licencee initially and subsequently as that of a trespasser. The Defendant contested the suit. He admitted the sub-tenancy but pleaded that it was illegal and unenforceable. Some dispute was joined on the ground as to which party was liable for annual white washing and repairs etc., and whether the Defendant was entitled to deduct one month''s rent from the arrears of rent demanded by the Plaintiff. The notices were alleged to be illegal. Lastly, it was contended that the damages for use and occupation would not be more than the proportionate annual reasonable rent in respect of the accommodation in possession of the Defendant. The trial court framed the necessary issues and tried the suit. It held that as the Plaintiff himself was the tenant of the accommodation in dispute, he could not sublet the same to the Defendant without the permission of the District Magistrate u/s 7(3) of the repealed U.P. Act No. III of 1947. He, therefore, held that the sub-tenancy was illegal and unenforceable. However, it was held that the Plaintiff was entitled to succeed on the alternative ground of the Defendant''s possession being that of a trespasser. The Plaintiff was also held entitled to damages for illegal use and occupation by the Defendant. The trial court held that the Defendant was not entitled to any deduction for annual repairs and white-washing. With these findings the trial court decreed the suit for recovery of Rs. 266.15 and for possession over the accommodation in dispute. Pendentelite and future damages were also decreed at the rate of Rs. 14/- per month up to the date of the delivery of possession on payment of additional court fee. The Defendant went up in appeal to the lower appellate court but did not succeed. The said court dismissed the appeal and upheld the judgment and decree passed by the trial court. Feeling aggrieved, the Defendant has now come up in the instant second appeal and in support and in opposition thereof, I have heard the learned Counsel for the parties. Shri S.N. Misra, learned Counsel for the Appellant, has contended that after having held that the sub-tenancy wag illegal in law and void, it was not open to the courts below to have passed a decree for eviction of the Defendant on the alternative ground of the Defendant being a trespasser in the property. His contention was that it was almost indirectly enforcing the contract which the courts themselves held was strictly prohibited in law. I have given my attention to the said contention but the same is not acceptable to me. In my opinion, the fact that a contract of sub-tenancy is illegal in law does not mean that the tenant should stand permanently deprived of the accommodation in his tenancy. It will be the same as if a contract of tenancy were held to be void and illegal. Surely it cannot be held that the owner of the property would stand permanently deprived of his property and the Defendant would never be called upon to vacate the same merely because the contract of tenancy is held to be illegal and void. The contract of tenancy would, of course, be not enforceable but it is always open to the house-owner or the tenant-in-chief to fall back on his title, if there is no contract of tenancy or sub-tenancy in law, then the situation is that the tenant''s possession can be treated to have been originally as that of a licencee but subsequently when he was called upon to vacate and he refused to do so as that of a trespasser. There are Full bench decisions of this Court reported in. Abdul Ghani v. Mt. Babni ILR 25 All 256 and Balmakund v. Dalu ILR 25 All. 498 where it has been laid down that even in a suit based on a contract of tenancy, it is open to the court to decree the suit for eviction on the ground of title if the alleged contract of tenancy does not stand proved. The said Full Bench decisions have been approved by the Supreme Court in Bhagwati Prasad Vs. Shri Chandramaul, . When that is the settled position in law, I do not think that the position can be any different in a situation where the contract of tenancy or sub-tenancy is held to be illegal and void and unenforceable. The original title is always there to enable the house-owner or the tenant-in-chief to claim back possession from the occupier. The lower appellate court has also referred to Property Agents v. Shamsher Bahadur 1964 ALJ 752 and to Sahu Anand Sarup Vs. S. Taiyab Hasan and Others, and Waman Shriniwas Kini Vs. Ratilal Bhagwandas and Co., . The lower appellate court has also referred to Sheokaran Singh v. Parbhu Narain Singh ILR VI All. 167 . These cases undoubtedly are against the contention raised on behalf of the Appellant by his learned Counsel. Learned Counsel for the Appellant has sought to derive support from Waman Shriniwas Kini Vs. Ratilal Bhagwandas and Co., . I have gone through this authority. It is with reference to the provisions of Bombay Rents (Hotel and Lodging House Rent Control) Act (Act No. 57 of 1947). In my opinion, the authority has to be read in the context of the provisions of Sections 13 and 15 of the said statute which have been examined in the said case. This case certainly does not lay down that no suit shall lie on the ground of original title in case the contract of Tenancy or sub-tenancy is found to be illegal. The following observations, though made in the context of Section 13 of the Bombay statute, on the contrary negative the contention made by the learned Counsel:

The Appellant relied on the maxim...will not be disturbed.

In view of the aforesaid discussion, I find no merit in this appeal.

Learned Counsel has made a prayer that the Appellant may be granted some reasonable lime to vacate the suit accommodation. In my opinion, four month''s time should be granted to him to hand over the vacant possession to the Plaintiff-Respondent. The courts below have passed a decree granting mesne profits, pendentelite and future till the date of delivery of possession, I should like to make it clear that on the authority of the Division Bench decision of this Court reported in Kumar Jagdish Chandra Vs. Bulaqi Das and Another, which has been affirmed by the Supreme Court in Subranna v. Subranna AIR 1965 SC 1365 the decree should be construed as one under Order 20 Rule 12 Code of Civil Procedure.

The appeal is dismissed with costs subject to the aforesaid observation that the Appellant shall have four month''s time to give delivery of possession to the Plaintiff-Respondent and the decree for eviction shall be executable only after four months.