Shri Partap Chand vs The Automobile Association of Upper India and others

Mahajan, J.—This petition for revision has had a fairly chequered career. It came up before Gurdev Singh J. on the 25th of May, 1961, when the case was referred for a decision by a larger Bench in view of the two principal contentions raised at that time. The first contention was that the tenant, whose eviction was sought, having not appealed against the decree, his sub-tenant could not appeal against the same. The other contention was with regard to the effect of Section 57 of the Delhi Rent Control Act (No. 59 of 1958). The matter came up before the Division Bench consisting of Dulat and Gosain JJ. and they answered the second question and sent back the case to the Single Judge for final disposal. The case was then placed before me on the 25th of October 1962, when it was argued before me that out of the two questions, referred for decision by the larger Bench, only one had been answered and it was necessary to have the opinion of the Bench on the second question also. I accordingly referred the first question, which had not been answered for decision to the Division Bench. The Division Bench has decided that question as well by its order dated the 14th November, 1962; the judgment was delivered by Falshaw C. J. and Dulat J. Both these legal matters have been settled and they do not arise for determination so far as I am concerned. The only question that remains to be settled is one on the merits. The trial Court came to the conclusion that the sub-letting was after 1954 and the Plaintiff had no knowledge of the same and as soon as he came to have knowledge he gave notice to the sub-tenant and also filed the suit for eviction and on that basis the suit was decreed. The lower appellate Court has reversed that decision and has come to the conclusion that the sub-tenancy was created before 1952, that is, in the year 1950, and the same had been acquiesced in by the landlord.

These questions would be the questions of fact and would not be liable to interference in revision u/s 35 of the Act, but the learned Counsel for the Petitioner contends that there is no evidence on which these findings can be based and, therefore, the decision is not in accordance with law. I have been taken through the evidence on the record and I am really surprised to find that there is practically lib evidence on which either of the two findings ran be based. So far as the landlord is concerned, though there is slight evidence to the effect that the sub-tenancy came into being as between the tenant and the subtenant sometimes in 1950, but so far as acquiescence in that sub-tenancy is concerned there is practically no evidence. The facts of the case are as follows:

The premises were let out to the Automobile Association of Northern India Limited- This Association had its Head Office at Lahore. After the partition of the country its substitute Automobile Association of Upper India continued as the tenant of the premises though the landlord at that stage also raised a dispute as to its being the tenant. In the year 1948 an agreement was entered into between the tenant Automobile Association of Upper India with the Respondent K. S. Sobti. It is in this year that K. S. Sobti was handed over possession of part of the premises and under the agreement he had to print a journal for the Association known as "All India Motorist". So far as the landlord is concerned, he was not made aware of the agreement which was entered into between the tenant and K. S. Sobti. This agreement was terminated by the tenant Association in about September, 1954, but Mr. Sobti continued to remain in the premises and the landlord discovered this fact when Mr. Sobti approached him with the payment of rent directly. Then the present proceedings were started for eviction of the tenant as well as Mr. Sobti.

The position taken up by the Association in its written statement is as follows: -

The said premises were found insufficient for the purposes of Association as the membership and the work of the Association had considerably increased, therefore the Defendant No. 1 rented another premises in November 1950 for their office work which is 83, Communication Theatre Buildings, Connaught Place, New Delhi and kept the premises known as N-43, Partap Building for the office of their official monthly publication ''All India Motorist''. Mr. K. S. Sobti Defendant No. 2 was printing and publishing the magazine of the Association. The liability to defray the rent of the premises rested with Defendant No. 1. Mr. K. S. Sobti, Defendant No. 2, continued to publish ''All India Motorist'' on behalf of the Defendant No. 1 till June 1954 when the arrangement was terminated by the Association vide notice dated 11th May, 1954.

Mr. Sobti, who appeared as D. W. 4, has made the following statement:-

At the end of 1948, a Managing Committee of A. A. U. I. entered into an agreement with me for publishing by me an ''All India Motorist'' and to give office accommodation for the purpose I was given suit premises. I filed declaration before the District Magistrate, Delhi, for publication of ''All India Motorist'' and gave the address of suit premises.....;In 1950 October A. A. U. I, shifted its office to Theatre Communication Building and sublet entire premises to me. I have been paying rent regularly to A. A. U. I. since then. I have also deposited rent in Court.

In cross-examination he admitted that this agreement about ''All India Motorist" was terminated in middle 1954 (September or October). Therefore it is established that Mr. Sobti entered into possession of the premises in the circumstances which would not at all indicate that the premises were being sublet by the tenant to Mr. Sobti. Even the fact that Mr. Sobti was seen residing in the premises and carrying on business in the premises would be no notice to the landlord of the subletting. Lot of evidence-has been placed on the record showing the various correspondence going on between the tenant and the sub-tenant and the payment of the rent by the sub-tenant, but unless knowledge of this subletting can be fixed on the landlord this evidence will be of no use whatever and the circumstances of the case and the evidence led therein totally negative any such knowledge which can be fixed on the landlord. It appears that the Court below has simply tried to make a case for the Respondent which is not at all borne out by the evidence. In order that there is acquiescence by the landlord it has to be proved that there was a sub-tenancy which had been brought about to the knowledge of the landlord. Till the knowledge of sub-tenancy is fixed there can be no question of acquiescence, for acquiescence by its very nature implies a conscious act. It will be useful at this stage to quote the following observation made by Bishan Narain J. in Waziri Mal v. Ram Chand Civ. Rev. No. 1381-D of 1954, decided on 1st of February 1955:-

Waiver is an intentional relinquishment of a known right, and there can be no waiver unless the person against whom it is claimed had full knowledge of his rights. The existence of an intent to waive is a question of fact, and it is for the tenant to prove the acceptance of rent by the landlord with the knowledge of subletting, and this involves the proof of the fact of knowledge of the landlord relating to subletting as distinct from license. It is clear that on proof that a landlord sees a person other than the tenant residing in the premises or a part of the premises does not necessarily prove that the landlord has knowledge of the subletting. A landlord is not expected and is not likely to know all the relations and friends of his tenant, and, in my opinion, no inference on the landlord having seen a third party residing in his premises, can be drawn that he had the knowledge that the premises had been sublet. The tenant must, therefore, prove that the landlord knew that a third person was residing in the premises as a sub-tenant and not as a licensee.

As I have already said there is no evidence worth the name on the record from which knowledge of the sub-tenancy can be fixed on the landlord and the mere circumstance that the landlord was living in the vicinity of the premises or had knowledge that Mr. Sobti was living in the premises would be of no consequence, for a sub-tenancy comes into being by contract and till that contract is made known to the landlord or some positive circumstances are disclosed from which an inference of knowledge can be raised, it cannot be held that the landlord had knowledge of the subtenancy. Moreover a landlord who was so vigilant as to object to the change in the nomenclature of the Association, would not have kept silent, if he had known that the Association had sublet the premises.

This brings me to the requirements of Section 13 of the Delhi and Ajmer Rent Control Act, 1952, under which the present suit was filed. Section 13(i)(c) is in these terms: -

(1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):

Provided that nothing in this Sub-section shall apply to any suit or or other proceeding for such recovery of possession if the Court is satisfied-

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(c) that the tenant, without obtaining the consent of the landlord has, before the commencement of this Act-

(i) sublet, assigned or otherwise parted with the possession of the whole or any part of the premises ; or

(ii) used the premises for a purpose other than that for which they were let; or

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The significant words are "without obtaining the consent of the landlord". Therefore, it was incumbent on the sub tenant, in case he wished to stay in the premises, to prove that the landlord had consented to his sub-tenancy. It is no doubt true that the consent can be proved directly or by necessary inference, but foundation has to be made in the evidence for that purpose and I have already at length dealt with the matter that on the evidence no such foundation is found.

So far as Section 20 of the Act is concerned, the contention of the Respondent''s counsel is that Section 20 has no bearing so far as the present matter is concerned and, in any case, what Section 20 requires is that there should be a lawful sub-tenancy. While dealing with this question Falshaw C. J. observed in Shanker Lal v. Messrs Chuni Lal Jawahar Lal Bhargava Civ. Rev. No 175-D of 1957, decided on the 15th of March, 1962, as under:- "In my opinion the question whether the premises were lawfully sublet or not u/s 20 of the Act of 1952 has to be decided in the light of whether the subletting was lawful at the time it took place namely in 1945 when as I have said subletting without the consent of the landlord was a ground for ejectment and therefore unlawful. In my opinion the mere tact that during the years in which the Act of 1947 was. in force the subletting of part of the premises only constituted a ground for ejectment if the subletting had taken place after the commencement of the Act will not make any difference, and it must therefore be held that in the absence of any consent of the landlord the premises were not lawfully sublet to the Petitioner within the meaning of Section 20 of the Act of 1952".

This brings me to the contention of the learned Counsel for the Respondent on the basis of the Supreme Court decision in Hari Shanker v. Rao Girdhari Lal Chowdhury (1962) 64 P. L. R. 1097 . He places particular reliance on the following observations which occur in paragraphs 8 and 9 of the judgment:

The phrase ''according to law'' refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers-to the over all decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger power than the power to-correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, is controlled by the opening words, where it says that the High Court may send for the record of the case to-satisfy itself that the decision is ''according to to law''. It stands to reason that if it was considered nececessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.

The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations halve been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be correcetd under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the obser-vations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such section is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. Vs. Waman Hemraj, where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed:

The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference, but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.

These observations do not, in any way, affect the present case. As I have already said if the matter was merely confined to this that on the evidence two views are possible and the lower appellate Court has not taken the better view then it would certainly be not open to this Court for interference in revision, but in the present case there is no evidence to support the conclusions of the lower appellate Court and it cannot, with any show of reason, be said that that this Court is powerless to correct the error because in that case the decision would not be in accordance with law. Therefore, the decision of the Supreme Court is not at all of any assistance in this case to the Respondent.

Before concluding I may mention that there is no evidence to show that any payment was received by the landlord directly from the sub-tenant. Whatever arrangement the sub-tenant and the tenant had inter so would be of no use till that arrangement was known to the land-lord, or was made known to him. On this there is not a little of evidence.

For the reasons given above, this petition for revision succeeds. I set aside the judgment and the decree of the lower appellate Court and restore that of the trial Court. The Respondent is granted one month''s time to vacate the premises. The Petitioner will have his costs throughout.