Rup Chand v. Madho Ram — 1961 DIGILAW 150 (ALL)

JUDGMENT S.S. Dhavan, J. - This is a tenant's second appeal against the decision of the Addl. Civil Judge, Dehra Dun rejecting his objection to the execution of a decree for his ejectment on the ground that the execution was barred by S. 14 of the UP Control of Rent and Eviction Act. The facts are these: The decree holder Madho Ram was the landlord of the tenant Appellant Rup Chand. He filed a suit for the ejectment of Rup Chand on two grounds (1) that he had defaulted in payment of rent and (2) had sub-let a portion of the premises to a sub tenant. Both the tenant and the sub tenant contested the suit but did not turn up on the date of hearing, and the suit was heard ex-parte on the evidence of the Plaintiff landlord. The trial court held that there had been a subletting without the permission of the landlord and decreed the suit for ejectment. He also decreed the suit for recovery of rent. The date of the decree is 7th June 1946. This is an important fact as will appear presently. 2. The ex parte decree was set aside by the appellate court but restored by the High Court on revision. The landlord then applied for execution. The tenant, who is the Appellant before me, objected that execution of the decree was barred u/s 14 of the Control of Rent and Eviction Act. This objection was dismissed both by the execution court and by the learned Judge. The tenant has now come to this Court in second appeal. 3. After hearing Learned Counsel for the Appellant and the Respondents I am of the opinion that the appeal must succeed. The Control of Rent & Eviction Act protects the tenant against arbitrary eviction and this protection is provided in three Ss. 3, 14 and 15. S. 3 bars any suit for the eviction of the tenant without the permission of the District Magistrate except on seven grounds specified in that section. One of them is the subletting of the whole or any portion of the accommodation by the tenant on or after first day of October 1946 without the permission of the landlord. 4. S. 3 bars any suit for the eviction of the tenant without the permission of the District Magistrate except on seven grounds specified in that section. One of them is the subletting of the whole or any portion of the accommodation by the tenant on or after first day of October 1946 without the permission of the landlord. 4. The Legislature wanted to protect the tenant against decrees for ejectment already obtained by landlords before the Act came into force and for this purpose it included Sections 14 and 15. S. 14 enjoins in effect that any decree for eviction of the tenant obtained before the passing of the act be incapable of execution except on the same grounds on which a suit for ejectment can be instituted. S. 15 provides in effect that in no pending suits for the eviction of the tenants shall any decree for eviction be passed except on the same ground on which a suit for eviction can be maintained after the passing the Act. The net result of these three sections is that the tenant is effectively protected against eviction except with the permission of the District Magistrate unless he is guilty on any of the acts specified in Cls. (a) to (g) of S. 3 One of the acts which would deprive the tenants of this protection is subletting, on or after the first of October 1946, of the accommodation without the permission of the landlord. It is important to note that the ground on which he loses this protection is identical in all the three cases-where a suit is filed against him, or one already instituted is sought to be continued, or a decree for ejectment already obtained is sought to be executed. He can be deprived of this protection if the sub-letting was done on or after the Act came into force, but not if it was done before that date. In this case the decree itself was passed on 7-5-46. It is, therefore, obvious that the impugned sub-letting was done before that date and long before the Act came into force. The tenant could not on the ground of this sub-letting be deprived of the protection of S. 14. 5. In this case the decree itself was passed on 7-5-46. It is, therefore, obvious that the impugned sub-letting was done before that date and long before the Act came into force. The tenant could not on the ground of this sub-letting be deprived of the protection of S. 14. 5. It was contended by the landlord decree holder in the courts below that the tenant had indulged in another act of sub- letting even after the passing of the Act and was, therefore, not entitled to the protection of S. 14. This argument was accepted. 6. Mr. Jagnandan Lal, Learned Counsel for the Respondent landlord argued vehemently that the view taken by both the courts below is correct. He pointed out that the purpose of the Act is, inter alia, to prevent the tenants from sub letting the accommodation without the permission of the landlord and this would be defeated if the protection of S. 14 is extended to tenants who sub let the accommodation before the passing of the Act but the sub letting continues. Alternatively he contended that the landlord had proved before the execution court that the tenant had been guilty of another act of subletting even after the passing of the Act. According to Learned Counsel the landlord was entitled to prove an act of sub letting after the 1st of October even though it had not been made the basis of the suit for ejectment. 7. I do not find much substance in either of these arguments. Sub-letting in itself is not an illegal act, but the UP Control of Rent and Eviction Act has placed a restriction on this right of the tenant in return for the protection given to him against arbitrary eviction. S. 3 which imposes the restriction on sub letting, provides in effect that the tenant will lose the protection of that section if he sublet the accommodation on or after the first day of October 1946 without the permission of the landlord. But the loss of protection results from sublettings done after the Act came into force, but not from those done before that act was passed. If Learned Counsel's argument is accepted, the result would be to make this provision retrospective in its effect, but there is nothing in the language of Cl (e) to suggest that it was intended to be so. If Learned Counsel's argument is accepted, the result would be to make this provision retrospective in its effect, but there is nothing in the language of Cl (e) to suggest that it was intended to be so. The policy of the act as regards this clause is obvious enough. It ignored any sub letting done before the Act was passed but placed a restriction on all future sublettings. 8. Nor do I find any force in the second point Learned Counsel for the landlord argued that he was entitled to take advantage of an act of sub letting by the tenant which admittedly took place after the passing of the Act. The short answer to this argument is that the alleged act was not made the basis of the suit. There is no mention of it in the plaint. The decree obtained by the land lord is on the basis that there was a sub letting before 1-10-46. To the execution of that decree an objection was taken u/s 14 of the Act. The landlord then sought to deprive the tenant of the protection on the ground that he had been guilty of an act of sub letting after the passing of the decree. The courts below permitted the landlord to prove this subletting, and in this they were in error. The question before them was not whether the tenant had been guilty of any sub letting after the passing of the decree, but whether the decree obtained by the landlord, as it stood, was executable in view of the bar of S. 14. No decree holder is entitled to execute any decree exec(sic)t the one obtained by him. In this case the courts below overlooked the fact that by allowing the landlord to produce evidence of sub letting after the passing of the decree they were virtually decreeing a new suit in favour of the landlord or, at any rate, changing the nature of the suit already filed by him. If the landlord is aggrieved by any fresh act of sub letting, it will be open to him to file a fresh suit against him. But it is clear that he cannot rely on any acts of sub letting which was subsequent to the passing of the decree for depriving him of the statutory protection against that decree. 9. The appeal must succeed and is allowed with costs. But it is clear that he cannot rely on any acts of sub letting which was subsequent to the passing of the decree for depriving him of the statutory protection against that decree. 9. The appeal must succeed and is allowed with costs. It must be made clear that this decision does not affect the decree for arrears of rent. 10. Leave to appeal is refused.