JUDGMENT-Original defendant No.2 challenges the validity of the order of eviction passed against him by the Court of Small Causes at Bombay and confirmed by the Appellate Bench in appeal. Respondent No. 1, hereinafter referred to as the plaintiff, instituted the said suit under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Rent Act of 1947" for possession of Flats Nos. 20. 21,22 and 23 on the fifth floor of the building known as Marina House situate at 5, New Marine Lines, Bombay, on December 17, 1959. The plaintiff had purchased the entire property, including the said flats in the year 1945, when these flats were occupied by original defendant No. 1. Eviction was sought on the ground of arrears of rent, unlawful sub-letting and unlawful assignment and also on the ground of raising a permanent structure in contravention of section 108 (c) of the Transfer of Property Act and also the agreement of lease, rendering themselves liable to eviction. Defendant No.1 remained ex-parte. Defendant No.2 claimed to be the lawful sub-tenant of flat No. 20 from defendant No. 1 with effect from November 1, 1947. Defendant No.3 claimed to be lawful assignee of all the four flats from defendant No.1 with effect from November 11, 1949 and alleged that defendant No.2 was his lodger. Defendant No.2 claimed to have paid entire arrears of rent to defendant No. 1, through defendant No.3 as the agent of defendant No.1. The allegation as to the unlawful erection of permanent structure was denied by the defendants. 2. Issues were framed and evidence was led. By his judgment dated January 17, 1962 the trial Judge passed a decree for eviction. On separate appeals by defendant No.2 and defendant No.3, the said decree was confirmed on April 18, 1967. I am informed at the Bar that defendant No. 3s Special Civil Application to this Court against these orders was summarily rejected and these orders of eviction as against defendants Nos. 1 and 3 in regard to Flats Nos. 20, 21, 22 and 23 have now become final. 3. The trial Judge and the Appellate Bench have held that defendant No.2 was not a lawful sub-tenant. 1 and 3 in regard to Flats Nos. 20, 21, 22 and 23 have now become final. 3. The trial Judge and the Appellate Bench have held that defendant No.2 was not a lawful sub-tenant. It is unnecessary to refer to pleadings of and findings recorded against other defendants, as in the event of reversal of this finding, defendant No.2 would be entitled to the possession of Flat No. 20 as lawful sub-tenant in his own right and adverse findings against defendant No. 1 or defendant No.3 even with regard to flat No. 20 cannot affect the protection available to him under the Rent Act of 1967 as such lawful subtenant. Both the Courts concurrently absolved defendant No.2 from the allegation about raising unauthorised structures, though defendant No.3 was found guilty of the same. When this matter came up for hearing before ·me on April 21, 1971, I noticed that issue No. 1 was not happily worded and was misleading to a certain extent. Averments made by the plaintiff and defendant No.2 really raised two questions-firstly, whether in fact defendant No.2 was inducted in the flat as the sub-tenant? His sub tenancy was not admitted by the plaintiff. The plaint only referred to his claim to be the sub-tenant. The second question was as to the legality of such sub-tenancy. By my order dated April 21, 1971, I remitted an additional issue as follows for finding, after giving opportunity to the parties to lead evidence: "Whether defendant No.2 proves that he was occupying flat No. 20 as sub-tenant from 14th November 1947?" By mistake, instead of the date November I, 1947, November 14 has crept in the issue. Both the Courts have now certified their findings on the issue, concurrently holding that defendant No.2 was inducted in flat No. 20 by defendant No.1 on November 1, 1947 as his sub-tenant. This finding is supported by several pieces of evidence and circumstances. Mr. Abhyankar could not demonstrate to me how the finding can be said to have been vitiated by any error of law. This finding is supported by several pieces of evidence and circumstances. Mr. Abhyankar could not demonstrate to me how the finding can be said to have been vitiated by any error of law. I win, therefore, have to proceed in this case on the basis that defendant No.2 has been proved to be a sub-tenant of Rat No. 20 and the only question that survives is as to its lawfulness which has a bearing on defendant No. 2s claim to protection under section 14 and other provisions of the Rent Act of 1947 brought into force with effect from February 13, 1948. 4. Both the Courts have held that sub-tenancy in favour of defendant No.2 was unlawful as it was prohibited by the Rent Act. Reliance is placed on section 10 of the Bombay Act No.7 of 1944, hereinafter referred to as "the Rent Act of 19404" which admittedly was in force on November 1,1947, when the sub-tenancy was created. The said section 10 reads as follows: "Sub-letting; Notwithstanding anything to the contrary in any law for the time being in force, a tenant may sub-let any portion of his premises to a sub-tenant, provided he forthwith intimates in writing to his landlord the fact of his having so sub-let the premises and also the rent at which they have been sub-let." This section does not expressly prohibit sub-tenancy. It only imposes an obligation on the tenant to inform the landlord (1) the fact of sub-letting and (2) the amount of rent charged. There is no provision in the whole of this enactment seeking to prohibit sub-tenancy. One can get some clue to the object of imposing the above obligation if one turns to section 9 (1) of the Act and the proviso thereof. Section 9 (1) affords to the tenant immunity from eviction as long as he pays rent and observe! the terms of his tenancy. Bu t the proviso to section 9 (1) enables the landlord to proceed to seek eviction of the tenant after obtaining a certificate from the Controller, on either .of the four grounds. These are (1) an act of the tenant contrary to clause (0) or (p) of section 108 of the Transfer of Property Act, (2) conduct causing nuisance or annoyance, (3) charging the sub· tenant rent in excess of the standard rent, and (4) bonafide and reasonable requirement of the landlord. These are (1) an act of the tenant contrary to clause (0) or (p) of section 108 of the Transfer of Property Act, (2) conduct causing nuisance or annoyance, (3) charging the sub· tenant rent in excess of the standard rent, and (4) bonafide and reasonable requirement of the landlord. Obligation to convey information under section 10 appears to have been intended to ensure availability of the third ground of eviction to the landlord, if ever any such excess rent is found to have been charged. Thus it is an error to construe section 10 of the Act to spell out any intendment of prohibition against sub-tenancy. 5. The Appellate Bench relied on the judgment of this Court in Cooper v. Shiavax Cumbata1, to spell out such a prohibition. It has extensively relied on the history of Rent Act legislation referred to in the judgment of the trial Judge Desai J. To my mind, the history is thoroughly irrelevant and the learned Judge has referred to it in quite a different context. Mr. Abhyankar relied on the judgment of Chagla C. J. speaking for the Division Bench in appeal. This reliance is equally misplaced. There the tenant was prohibited from sub-letting in terms of the lease-deed and the Court held that once contract to the contrary restricts his right to sub· let according to section 108 of the Transfer of Property Act, section 10 of the Rent Act of 1944 did not relieve the tenant of the prohibitory provision of his lease· deed and by contravening the said clause the tenant had incurred the loss of immunity from eviction which could have been available to him under section 9 of the said Act. This ratio of the case cannot be of any avail to the plaintiff in the present case. 6. There is absolutely no basis and warrant to imply such prohibition against sub-letting from any of the provisions of the Act of 194-1-. Firstly, no consequences, penal or otherwise, are provided in the Act against the tenant for non-compliance with this obligation imposed under section 10. Secondly, such non-compliance is not included among the grounds for eviction in the proviso to section 9 (1) of the Act. Firstly, no consequences, penal or otherwise, are provided in the Act against the tenant for non-compliance with this obligation imposed under section 10. Secondly, such non-compliance is not included among the grounds for eviction in the proviso to section 9 (1) of the Act. Thirdly, such sub-tenant is not placed under any duty to ensure that the tenant conveys the required information to his landlord nor the validity of his sub-tenancy is made dependent on conveyance of such information by the tenant to his landlord. Fourthly, such intimation by the tenant to his landlord is not contemplated to precede but is to follow the contract of sup-lease implying thereby that conveyance of such intimation does not form part of the contract of sub-lease. Each one of these factors militates against the supposed legislative intendment to prohibit subletting and consequently sub-lease becoming unlawful merely on the failure of the tenant to comply with the conditions referred to in section 10 of the said Act. 7. As against this the prohibition against charging the sub-tenant rent in excess of the standard rent pre-supposes the preservation of the right of a tenant to sub-lease, available to him under section 108 of the Transfer of - Property Act subject to any contract to the contrary. This clause in the proviso cannot be explained on any other hypothesis. 8. Any contract can be said to be unlawful when the consideration thereof is of one of the categories enumerated under section 23 of the Contract Act. Mere failure to convey information to the landlord in terms of section 10 of the Rent Act of 1944 does not directly or indirectly fall under any of these categories. At any rate, Mr. Abhyankar could not lay his finger on any of the clauses of section 23 of the Act. In fact, obligation to convey such information cannot form part of the consideration of the contract of such sub-lease between tenant and sub-tenant. It is in this context that one has to remember that obligation to convey such information follows the completion of the contract. The sub-tenant cannot Ordinarily be said to have possessed any guilty mind if the tenant on his part failed to do his statutory duty after the contract of sub-lease has been finalised. 9. Mr. It is in this context that one has to remember that obligation to convey such information follows the completion of the contract. The sub-tenant cannot Ordinarily be said to have possessed any guilty mind if the tenant on his part failed to do his statutory duty after the contract of sub-lease has been finalised. 9. Mr. Abhyankar contended that the phraseology "other conditions of the tenancy" in section 9 (1) also includes the statutory conditions imposed on the tenant such as the one referred to under section 10 and failure to comply with such condition must necessarily result in the loss of immunity from eviction. Even if this contention is accepted as correct, it may affect the immunity afforded to the tenant. The same still cannot lead to the inference of prohibition of sub-lease or sub-lease being unlawful. The question of the tenants liability to eviction on any ground under the Act of 1944- does not directly arise in this Special Civil Application. 10. Mr. Gill, the learned advocate for the petitioner, relied on the judgment of the Division Bench of this Court in the case of Mahomed Husain v. Trivedi2. Under the Bombay Land Requisition Act, 1948, landlord of any premises was under an obligation to give intimation about the vacancy in the premises to the Government and lease out the same to anyone after obtaining their permission. The landlord in that case had created tenancy in favour of a tenant without so intimating the Government and without so. obtaining the permission. It was held that the tenancy so created cannot be rendered to have been void merely because the landlord failed to discharge his obligation towards the Government in regard to the intimation of the vacancy and obtaining of the permission. The ratio of this judgment supports the proposition enumerated above. While considering this aspect of the case what has to. be mainly borne in mind is that the obligation under section 10 of the Act is only imposed on the tenant without imposing any corresponding obligation on the sub-tenant. 11. It is true that the Act of 1944 did not afford any protection to the sub-tenants and in any suit for eviction against the tenants it was not even necessary to impaled such sub-tenants. In the absence of such statutory protection to the sub-tenants, they were liable to be evicted along with the main tenant. 11. It is true that the Act of 1944 did not afford any protection to the sub-tenants and in any suit for eviction against the tenants it was not even necessary to impaled such sub-tenants. In the absence of such statutory protection to the sub-tenants, they were liable to be evicted along with the main tenant. This Act of 1944 was repealed by Act No. 57 of 1947 with effect from February 23, 1948 and defendant No.2 continued to occupy flat No. 20 till, at any rate, the present suit was instituted on December 17, 1959. Extensive protection has been afforded under the Rent Act of 1947 even to the subtenants •. Definition of the word "tenant" in section 5 (II) of 1947 Act includes such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959. It is not in dispute that the Ordinance of 1959 was brought into force on May 21, 1959, long, before the present suit was instituted on December 17, 1959 and sub-tenants like defendant No.2 must be deemed to have been included in the definition of the word "tenant" in section 5 (11) of the Act. Similarly, section 14 of the 1947 Act enables any sub· tenant, to whom the premises in dispute have been lawfully sub-let, to claim interest of the tenant on the determination of the head-tenants interest therein, for any reason whatsoever. Whatever, therefore, be the position of the sub-tenant, defendant No.2, on November 1, 1947 under the Rent Act of 1944, his right to occupy the premises so sub-let to him. is protected subject to sections 12 and 13 of the Rent Act of 1947. Plaintiff has failed to make out any case for eviction against defendant No.2 in terms of the provisions of the Rent Act of 1947 presumably because he proceeded on the hypothesis that his sub· tenancy was unlawful and was prohibited by section 10 of the Rent Act of 1944. 12. Some reliance also was sought to be placed by Mr. Gill on subsection (2) of section 15 of the Rent Act, as amended by the Ordinance of 1959. To my mind, Mr. 12. Some reliance also was sought to be placed by Mr. Gill on subsection (2) of section 15 of the Rent Act, as amended by the Ordinance of 1959. To my mind, Mr. Abhyankar is right in contending that the amended subsection (2) is intended to cure the illegality attached to the sub· tenancies created between the period from the enforcement of the Act of 1947, i.e. February 13, 1948 to May 2], 1959 in defince of the prohibition contained in section 15 (1) of the Act. Reliance by defendant No.2 on any portion of section 15, therefore, appears to me to ~e thoroughly misconceived. One implication of the wording of section 15 (2) as amended in 1959, however, needs to be noted. If the Ordinance of 1959 did not seek to legalise the sublease created before the Rent Act of 1947, it must be obviously because such sub-leases were not prohibited under the provisions of the Rent Act of 1944, and were not unlawful. Had the Act of 1944 prohibited sub-leases, there is hardly any reason why the Amending Ordinance of 1959 would not have legalised the same by appropriate provisions. This also lends further support to the above interpretation of section 10 of the 1944 Act. 13. To sum up, section 10 or any other section of the Rent Act of 1944 did not expressly prohibit sub-lease. There is nothing in the Act to infer such implied prohibition. There is no basis for contention that sub-lease under the said Act was unlawful. Third clause in the proviso to section 9 of the Act and the wording of the Ordinance of 1959, on the other hand, suggest that a sublease was permissible and legal under the said Act. Though no protection was afforded to the sub-tenant under the said Act, such sub-tenants remaining in occupation after the repeal of the said Act are entitled to protection available to any other sub-tenant under the Rent Act of 1947. 14. Mr. Abhyankar then contends that, at any rate, it has been found that the tenant was guilty of raising a permanent structure without the permission of the landlord and that act of the tenant itself made the tenant defendant No. 1 and others claiming through him liable to eviction. It is unnecessary to refer to the finding of the trial Court in this behalf. It is unnecessary to refer to the finding of the trial Court in this behalf. According to the finding of the Appellate Court, it was defendant No.3, who was responsible for such unauthorised construction. Defendant No.2 is not claiming through defendant No.3. It is obvious that defendant No.2 cannot be held liable to be evicted on that ground. 15 It is true that defendant No.1 has been found to have remained in arrears of rent for more than six months. No decree for arrears of rent has been passed presumably because arrears were paid during the pendency of the proceedings. I have already held in my judgment reported in the case of Birdichand Hiralal v. Sadashiv3, that non-payment of rent by the main tenant cannot entail deprivation of the protection of the Rent Act to the subtenant. 16. The result, therefore, is that the Special Civil Application succeeds. Rule is made absolute. The order passed for eviction as against defendant No.2 in regard to Flat No 20 is hereby set aside. 17. In the circumstances of the case, there would be no order as to costs. Rule made absolute.