Research › Browse › Judgment

Allahabad High Court · body

1966 DIGILAW 492 (ALL)

Uttam Chand v. Kanak Mala

1966-11-16

S.S.DHAVAN

body1966
ORDER S.S. Dhavan, J. - This is a tenant's second appeal from the decree of the Civil Judge of Roorkee at Saharanpur affirming that of the City Munsif, Saharanpur for the ejectment of the Appellant from the shop. 2. The Plaintiff Respondent Smt. Kanak Mala is the owner and landlord of this shop. She alleged in her plaint that she let out this shop to one Sakoshal Prasad Jain who sub let it to the Appellant Sri Uttam Chand without her permission or consent; that subsequently there was a dispute between the tenant and the sub-tenant (the Appellant) who filed a suit against the tenant for an injunction to restrain him from interfering with his (the Appellant's) possession; that the Plaintiff was impleaded as a proforma Defendant in that suit but no relief was claimed against her; that the Plaintiff did not appear in that suit as she was not concerned with the dispute between her tenant and the sub-tenant; that in that suit the court held that there was an agreement between the tenant and the sub-tenant (the Appellant in the present appeal) and issued an injunction to restrain the tenant from interfering with the possession of the Appellant; that the Plaintiff came to know of the creation of the sub-tenancy for the first time she received the summons in the suit; that her tenant had created a sub-tenancy without her consent and therefore she had terminated the tenancy and asked the tenant and the subtenant (the Appellant) to quit but the Appellant did not comply with this demand; hence the suit for ejectment. 3. The tenant Sakoshal Prasad Jain did not appear in the suit but the Appellant Uttam Chand contested it. He admitted that there was an agreement of sub-tenancy between him and Sakoshal Prasad Jain but asserted that this agreement was made with the consent of the Plaintiff. He also pleaded in the alternative that the decision in the earlier suit operated as res judicata in the present suit. 4. The trial court held that the decision in the earlier suit did not operate as res judicata against the Plaintiff in the present suit. It also held that the sub-tenancy in favour of the Appellant had been created without the consent of the Plaintiff-Respondent. Accordingly, it passed a decree for the ejectment of both the tenant and the subtenant. 4. The trial court held that the decision in the earlier suit did not operate as res judicata against the Plaintiff in the present suit. It also held that the sub-tenancy in favour of the Appellant had been created without the consent of the Plaintiff-Respondent. Accordingly, it passed a decree for the ejectment of both the tenant and the subtenant. This decree was affirmed by the lower appellate court. Sakoshal Prasad Jain has submitted to this decision but Uttam Chand has come here in second appeal. 5. I have heard Mr. Ambika Prasad, learned Counsel for the Appellant, at some length. I think the decision of the lower appellate court is sound. Learned Counsel contended that Section 3(1)(e) of the UP Control of Rent and Evictian Act provides for the eviction of the tenant but not of the subtenant and therefore, the Appellant cannot be evicted. I cannot agree. The finding of both the courts below is that the Appellant made the agreement of sub-tenancy with the tenant without the consent of the landlord. It is also not denied that the agreement was made without the permission of the District Magistrate. Therefore, it violated Section 7(3) of the Act which says: "No tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously obtained." Any violation of this provision is an offence punishable with imprisonment. An agreement which violates a provision of any law is illegal and void. No party can claim any rights under it. Learned counsel contended that the right to create a sub tenancy is provided under the Transfer of Property Act and therefore, the agreement is not illegal. The short answer to this argument is that the right to create the sub-tenancy is made subject to the conditions imposed by Section 7(3) of the UP Control of Rent and Eviction Act and a violation to these conditions makes an agreement of sub tenancy illegal. In the present suit the Appellant claimed rights under an unlawful agreement. The court will not assist a party which based his right under an unlawful contract. 6. Moreover, even if the agreement of sub-tenancy was not illegal the Appellant would still be liable to ejectment in the present circumstances. His rights as a sub-tenant are derived from the agreement between himself and the tenant-in-chief. The court will not assist a party which based his right under an unlawful contract. 6. Moreover, even if the agreement of sub-tenancy was not illegal the Appellant would still be liable to ejectment in the present circumstances. His rights as a sub-tenant are derived from the agreement between himself and the tenant-in-chief. He cannot claim any higher rights than the tenant. ]f the sub-tenancy was created by the tenant without the permission of the landlord the tenant is liable to be ejected. If he is ejected the Appellant's rights as a sub tenant automatically terminate because he cannot claim any rights beyond those of the tenant. In the present case the court has found that the tenant sub-let the accommodation without the consent of the landlord. His tenancy has been terminated and a decree for his ejectment passed against him. After this the Appellant cannot claim any right under the sub-tenancy. 7. The appeal is dismissed with costs.