MAHABIR PRASAD VERMA v. DR. SURINDER KAUR

Citation: [1982] 3 S.C.R. 607

Court: Supreme Court of India

Bench: R.S. PATHAK, AMARENDRA NATH SEN

Case summary

sub-Jet by the tenant, there can be no question of wrongful and • illegal sub. Appellate Authority and later revision petition to the High Court were , dismissed.

Judgment text

60'1 • MAHA! UR ll,JlASAb VilRMA v. DR. SURINDER KAUR April 7, I982 [R. S. PATHAI: AND AMARENDRA NATH SEN, JJ. ) Landlord and tenant-East Pun/ab Urban Land Restriction Act, 1949-Section 13(2} (ii) (a)-Scop• of-Sub-tenant-inducttd In a portion oftheprtmJses with the permission of landlord-Whether such subletting became unlawful on dlt1rminatlon oftenancy-Tenant, ifliable to be evicted. Evid111a-Tape r~orded nidence o~ly corroborative in nature. • Section 13(2) (ii);(a) of the East Punjab Urban Land Restriction Act 1949 provides that. if a tenant has, aft•r the coauncnccmcnt of the Act, without . the written consent ofthe landlord sub-Jot tho entiro buildinc or any portion theroof tlio tenant shall be liable to be evicted on the ground of such sub-letting. The Act ·- ma4e applicable to tbe Union Territory of Chandiprb from November 1972. /The respondent landlady fil~d a petition beforo the Rent Controller alleging that the'tenaJ:J. t bad sub~let.

a portion of the premises under his occu~tion in breach of section 13(2) (ii) (a) of the Act and. that therofore he was liable to be evicted. The Rent Controller ordered bis eviction. The tenant's appeal to tho _. ,. Appellate Authority and later revision petition to the High Court were , dismissed. In the tenant's special leave petilion, this Court directed the Rent Controller to record a finding whether the tenant had sub-Jet any porlion . of the . prc- 111ises after April 1974. The Rent Controller found that a portion ofthe premises was sub-let by the tenant in May 1974. On I. he question (1) whether the exi ilEMil cotJkt llU! l>okts tl<>A~l 1s. t. l. Against the judgment and order of the appellate authority, the tenant filed a revision petition under S. rs of the Act before the High Court of Punjab and Haryana at Chandigarh. The High Courv· by its judgment dated 19. 9. 78 dismissed the said petition.

Aggrieved by the judgment and order of the High Court, the tenant has filed this appeal with special leave granted by this Court, challenging the correctness of the decision ordering the eviction of the tenant from the said premises on the. ground -0f . ,_. sub-letting. Before we proceed to consider the arguments advanced from the Bar, it will be convenient to set out the terms of tenancy contained in the rent note da;ed 2. 4. 1974 and also the relevant provi- mmodation held by him as a tenant; or (b) transfer or assign his rights ·in the tenancy or in any part thereof. (2) No landlord shall claim or receive the payment of any sum as premium or pugrce or claim or. receive any consideraion wbatsoeyer in cash or in kind for giving his consent to the sub-letiing of the whole or any part of the accommodation held by the tem1nt,' MAHAhlk PRASAD v. ! iuRIND~ll KAUR (A. N. Sen, J. ) M~ There is nothing to suggest that this . section does not·. apply to all te~ants as defined in section 2(i).

A contractual tenant has an estate or interest in premises from which be carves out what be gives to the sub-tanant. Section 14 ··read with section 2 (i) makes it clear that . the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him. " i\ Mr. Tarkunde has further submitteo that in the instant case the question of any sub-letting• by the tenant on the expiry of the term of tenancy does not really arise, as the tenant had sub-let the fiat portion and also the barsati portion in the month ·or April in terms of the written consent of the landlady, while the contractual · tenancy was subsisting and in force.

It is his submisssion that the finding of the Rent Controller· that the tenant bad sub-let one • bed room in the fiat portion and also the barsati portion in -the month of May, in aswering the issue remitted to him by this Court, is clearly erroneous and not borne out by the evidence on record. Mr. Tarkunde has argued that the Rent Controller in arriving at this finding has mainly relied on the tape. recorded conversation between the tenant arid landlady's husband who also happens to hold the power of attorney of the landlady. He bas argued . - . ~ that rendering of the tape-recorded conversation can be legal evidence bY way Of corroborating the statement of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who depos~s that he over-heard the conversation between the two persons and what they actuaJly stated, had been tape-recorded. It is his argument that tape-recorded conversation may be useq only as a corrobora.

tive evidence of such conversation deposed to by any of the · parties to the conversation and in the instant case in the absence of any such evidence the tape-recorded conversation is indeed no evidence ·and cannot be relied upon. Mr. Tarkunde, in support of this argument has relied on the decision of this Court in the. case of S. Pratap Singh v. The Srate of Punjab. (') Mr. Tarkunde bas further argued that even if relianee is to be placed ·on the tape-recorded. conversation, it must then be held on the basis of the evidence recorded therein that the contractual tenancy had continued beyond tb'e period of the (I) [1964) 4 SCR 733. SUPREME coullt f!. EPOUS fl982l 3 s. c. ~ ·month of April. According to Mr. Tarkunde, in the present case the landlady had not merely accepted the rent which the landlady had .

in fact done; on ·the expiry of the contractual period of tenancy, but the tape-recorded conversation clearly indicates that the tenancy was treated as continuing between the parties, notwithstanding the expiry of the pericd and the tenant was recognised as tenant with lawful authority to sub-let even after •the expiry of the month of April, 1974. Mr. Tarkunde on the basis of the aforesaid contention has submitted. that the order of eviction against the tenant on the ground of subletting in the instant case is erroneous and should be set aside. . Mr. Mehta, learned counsel appearing on behalf of the landlady, has submitted that the tenancy, in the instant case was created· only for the month of April, 1974. He submits that on the expiry of April, 1974, the tenancy by efflux of time stands determined and the agreement between the pariies comes to ·an end.

He has argued tjiat though under the terms Of tenancy, the tenant had been given the necessary permission and authority to sub-let, such consent or authority would remain valid only for the month of April and there could lawfully be any sub-tenants only for the 'month of April. He contends t! Jat on the expiry of the month of April when the co. ntractual tenancy comes to an end, the possession of any sub-tenant of any portion of the said premises would be ,. uniiuthorised and illegal. It is his contention that it is not open to the tenant to creat by way of sub-tenancy or otherwise any interest in any other person larger than the interest which the tenant himself enjoys. According to Mr.

Mwta, ·the tenant on the terms and conditions of the tenancy enjoyed the right of a tenant only for the month of April and the tenant could only, the1efore, induct any subtenant on the basis of the terms and conditions of the tenancy only for the month of April; and the enjoyment or possession of any portion of the said premises by any suh·tenant after the month of April would necessanly be a case of wrongful and illegal ·subletting without any written consent as the consent must necessarily be con; sidered to have stood revoked on the expiry of the month of April. Mr. Mehta has drawn our attention to clauses 1 and 14 of the rent note and·has argued that the said clauses clearly indicate that the contract of tenancy was valid only for the month of April and the , MAllAlllR PRASAb v. st! RINbEll KAUR (A. N. Sen, J.

) 611 \,dthority of subletting was also only valid for the said month and on • expiry of the said month the tenant Wll,S to make over vacant possession to the owner of the premises in the original, condition, It is his argument that the contract of tenancy clearly contemplates that' ! here will be no sub-tenants in the premises on the expiry of the monfh of April. Mr. Mehta submits that existence of any subtenants in the premises after the month of, April, whether subtenants were inducted in the month of April or thereafter, brings the case within the mischief of S.

13 (2) (ii) (a) and renders the tenant liable to eviction on the ground of illegal sub-letting; It is his ,submission that if there be any sub-tenants in occupation or possession of any, portion of the said premises after the co11tractual tenancy had come to an end the subletting must be held to be without the written consent of the landlord and as such wr:>ngful and illegal to enable the landlord to evict the tenant on the ground of such subletting. Mr. Mehta has submitted that this view which has been consistently held by the High Court of P¥njab and Haryana, bas also been followed by the Hi_gh Court in the instant case. In support of this submission Mr. Mehta has referred to the decision in the case of' Kartar Singh and Others v. Tarlok Singh and Others(') which has_ •been referred by the/learned Judge in the judgment under ·appeal. Mr. Mehta has also relied on the decisions of the Punjab and Haryana High Court in the case of Shri Kidar Nath v. Smt.

Kartar Kumar,(') and also in the case of Gurdas Ram v. Hans. Raj. (') According fo Mr. Mehta, this view has held the field in Punjab and Haryana all the~e years and this is the settied law in the State. Mr. Mehta further submits that as sub-tenants have continued to remain in possession after the month of April, the subletting must •, be held to be without any written consent and illegal to furnish a valid ground for the eviction of the tenant and all the cour. ts inclu- ding the High Court have properly ordered the eviction of the • tenant. Mr. Mehta has next contended that in the instant case subletting of a bed room in the fiat portion and also of the barsati portion had been done by the tenant in the month of May, 1974 as \ found by the Rent Controller after the remand of the issue by this Court to the Rent Controller. Mr. Mehta submits that the Rent (I) [1973) P. L. R. 424. n· (2) [1969] 71 P. L. R. 186. (3) [1974) Rent Control Journal, Short Notes of cases p, 1. ' , ~U! >ltl!

Mll cotJkt REl>oktS tl98~J 3 s. c. k Controller had correctly come to the· conclusion on the evidence on record after allowing the parties opporfunity of adducing further evidence. ' Mr. Mehta has argued that as the tenant had sub-let in the month of May after the expiry of the period of tenancy, the subletting must be held to be illegal . and wrongful as the consent in writing by the landlady contained in the renl note was only for the month of April. ' Mr. Mehta argues that on the expiry of the month of April when the contractual tenan_cy . comes \o an end and the tenant continues to remain in possession by virtue of the provisions of the Act, the tenant does not enjoy any· power or authority to sub'let, even if such authority had been granted to the tenant to sublet during the period of contractual tenancy. It is the argument of Mr.

Mehta that on the expiry of the contractual tenancy, the terms and condi· tions on the basis of which the tenancy had been created, come to an end and the statutory tenant who may enjoy protection·against eviction by virtue of the statute does not have any authority to induct a~y sub-tenant. In support of this contention Mr. Mehta has , referred to the decision of this Court in the case of Anand Nivas (P) Ltd. v. Anandji Ka/yanji f:edhi & Ors. (') and he has relied on the ·following observations at pp. 917 : .. "A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long· as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right ofoccupation is incapable of being transferred or assigned and he having no interest in the property there is no estate on which subletting may operate. " • Mr.

Mehta has commented that this decision of this Court was not . considered by this Court in the case of Damadi Lill and Ors. v. Parasram-and Ors. (supra). . . M~. Mehta bas_further argued tbat it is well settled that mere acceptance of rent on the determination of the contractual tenancy by effiux of time or otherwise does not in the absence of some\hing more have the effect of creating a fresh tenancy or continuing the J (I) [1964] 4 S. C. R. 892.. MAHABIR PRASAD v. SURINDER KAUR (A. N. Sen, J. ) 623 ·.. I ' contractual 'tenancy afready dete. rmined; and it is his argument that ii cannot be said tbat a fresh tenancy was created or the tenancy • ·was allowed to . continue on the expiry of the month of April merely . because the lan. dlady had accepted the rent from the tenant on . the expiry of the period_ of the tenancy after the month of April. ,. • . 1 Mr.

Mehta, therefore, submits that in the imtant case the order for eviction has been rightly passed and this appeal should be dismissed. Before we proceed to consider the main q'uestion involved in this appeal, namely, whether tlie existence of sub,tenants in tbe premi-" ses after the expiry of the term of contractual tenancy, necessarily ren~ ders the subletting illegal and furnishes a ground for eviction within the meaning of S. 13(2) (ii) (a) of the Act, we propose to dispose of the other questi11n as to whether there was any subletting by tbe tenant in the month of May. On a careful consideration of the report of the Rent Controller on the issue remitted to him by this Court, we are of the opinion that the finding of the Rent Con- . troller that the tenant had sub-let one 'bed room in the flat portion : and· the . barsati portion in the month of May, 1974 js. not justified, as there. was no proper evidence- or material before the Rent Controller to come to the said ! hiding.

This finding·of the Rent controller is bas"d essentially on the tape-recorded conversation between the tenant the husband of the landlapy. Tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evide~ce of any" such conversation between the tenant and the husband of the landlady; and in the absence of any ' such conversation, the tape-recorded conversation could be no proper evidence.

We may further add that the tape-recorded conversation, even if the ·same could be relied upon, would b~ of no particular heip to the landlady, as the tape-recorded conversation clearly indicates that the landlady on the expiry of the term of tenancy had not merely accepted the rent but had manifested the intention of continuing the tenancy, notwithstading the expiry of the terms; and the tape· recorded conversation goes to show that the husband of the landlaoy ~as asking the tenant to induct suitable persons as sub-tenants under him. 624 SUPREME COlTRT REPORTS (1982] 3 s. c. tt.

As there is no proper evidence to show that any sub-tenant was inducted after tbe expiry of the contractual period of tenancy, it does not become becessary for us to consider whether the· tenant •• who; on the detemination of the contractual tenancy, continues to remain in possession by virtue of the provisions of the statute as statutory tenant, is entitled to sub-Jet and he continues to remain in 8 possession on the same terms and conditions on which he became a tenant. The CruJ( of the question, therefore, is whether the subletting by the tenant with the written consent of landlord during the currency of the tenancy becomes unlawful and·illegal on the deter- . -~ mination of the tenancy and furnishes a ground for eviction within the meaning of S. 13(2) (ii) (a) of the Act. · S.

13(2) (ii) (a) which we have earlier set out lays down that if a tenant after the commencement of the Act has without writte·n consent of the landlord transferred his right under the lease or sublet the entire building or any portion thereof, the tenant shall be liable to be evicted on the ground of such subletting. The requirement of the section, therefore, is that after the commencement of the Act there has to be subletting by the tenant without the written consent of the landlord to enable the landlord to recover possession . of the premises on the ground of subletting. It, therefore, necessarily follows that if after the commencement of the Act, the tenant has sublet with the written consent of the landlord, such subletting will not furnish any ground or cause of action for the eviction of the tenant by the landlord. It is to be noted that after the tenant has ·lawfully sublet with the written consent of the landlord, the sub-ten• ant becomes a lawful sub-tenant; and as su.

ch' he becomes a 'tenant' within the meaning of the Act under the tenant as his landlord and contil)ues to enjoy all the protection available to a 'tenant' ·under the Act and the tenant who inducts such sub-tenant is not entitled to evict him as landlord of the sub-tenant except in accordance with provisions of . the Act. As the tenant enjoys protection against eviction in terms of the provisions of the Act and is not liable to be evicted except in accordance with the provisions of the Act notwithstanding determination of his tenancy by the landlord, the sub-tenant lawfully inducted equai! y enjoys the same protection a8ainst eviction afforded to a tenant by the Act; and the sub-tenant l·_ MAHABIR PRASRi> v. SURINDER ltAUR (A. N. Sen, J. ) 625 can only be evicted in accordance with the provisions of the Act in th'e same way as a tenant can be evicted.

In spite of the sub· • tenancy being determined by the tenant as his landlord, the subtenant by virtue of the protection against eviction afforded to him by the Act is entitled to continue in possession of the portion let out to him by the tenant as his landlord; and it is just not possible • for the tenant as landlord to get rid of any sub-tenant at his will. In the instant case, the tenant had the authority to sublet and the written consent, as required by the statute, had been given by the landlady. In terms of the authority granted to the tenant and with the consent in writing of the landlady, the tenant had inducted sub-tenants in the month of April, when the contractual tenancy admittedly subsisting. The subletting by the tenant in the instant case could, therefore, afford no tground to the landlady or furnish any cause of action for her to evict the tenant on the ground of subletting on the basis of the provisions contained in S. 13 (2) (ii) (a) of the Act.

The sub-tenants lawfully inducted came to be in lawful possession of the portions let out to them by the tenant with the authority and consent in writing of the landlady and such sub· letting afforded a complete safeguard to the tenant against eviction and would not con:ie within the mischief of sec. 13 (2) (ii) (a) of the Act. We have already held that the creation of any sub-tenancy in the month of· May is not borne out by a·ny proper evidence on recoi\I. The case of the landlady that there was any sub-letting on the expiry of the month of April without the written consent or the landlady has not been established. In the instant case, the tenant has sublet with the written consent of the landlady in the month of April and has not sublet any portion on the expiry of the month of April. The argument of the learned counsel for the land· lady that on the expiry of the month of April, the consent of the landlady in writing stands withdrawn is of no consequences.

In the instant case, the tenant has sublet in the month of April, 1974, when admittedly the written consent of the landlady was'there. The continuance in possession of such subtenants in the portions lawfully let out to them on the expiry ofthe month of April does not amount to or have th. e effect of any fresh sub·letting by the tenant on the expiry of the month of April; and, it cannot be said that the tenant "has sublet" afresh on the expiry of the month of April. The right 'of possession that the sub-tenao\$ Qajoy on the basi$ of lawful iqduc· . 626 SUPREME cou1n R! lPOllTS (1982) 3 s. c. R. tion as s. ub-tenants is assured to the sub-tenants 11s a "tenant" within . the meaning of the Act. As a tenant in spite of the determination of his tenancy con. tinues the right to remain in possession as • a statutory tenant and enjoys the protection against eviction by . ' .

virtue of the provisions contained in the statute, a sub-tenant who is lawfully inducted, is also recognised by the st! l(ute to be a "tenant' within the meaning of the Act and he must necessarily enjoy the protection ligainst e. viction afforded to a tenant bY. the Act. A lawful sub-letting on the basis of the provisions of the Act does not become unlawful merely because the contractual tenancy of the tenant comes to an end. A. tenant incurs the liability to be evicted, - if the tenant after the commencement of the Act sub-lets without the written consent of the landlord; and the tenant who bas·la~fully sublet with the written consent of the landlord must necessarily enjoy immunity from the process of eviction on that ground. Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy bas come to an end.

Sub-letting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when. the tenant rnb-let_s any portion to the subtenant. . A sub-letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, · unless there is any fresh sub-letting by the ten3nt without the written consen~ of the landlord. Mere continuance in possession of a sub-tenant lawfully inducted does not amount to any fresh or further sub:letting. We are, therefore, satisfied that in the instant case the terlant has not sub-let any portion without the written corlsent of the landlady after the commencement of the Act. As the tenant· has not sub-let any portion after the commencement of the Act without the written consent of the landlady, th. e landlady does not have any proper ground for the eviction of the tenant on· the ground of sub-letting within the meaning of S. 13 (2) (ii) (a).

Mere continuance of possession bY, the sub-tenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub-letting, as the tenant bas not sub-let after che commencement of the Act any portion without the consent ··,II in writing of the landlady. MAHABIR PRASAI> V. SURINDBR KAUR (A. N. Sen, J. ) 627 The appeal, therefore, succeeds. The Judgment or the High A Court affirming the decision of the lower courts and the order of eviction, are hereb¥ set aside. The appeal is, therefore, allowed with costs. P. B. R. Appeal allowed. 8 • ~- ' .. """' ' ~ ' ' '