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1996 DIGILAW 954 (RAJ)

Bal Kishan v. Vasu Deo

1996-08-22

B.R.ARORA, J.C.VERMA

body1996
Honble VERMA, J. – Doubting the view taken in the Judgment of Honble Lodha, J. in Kewal Ram vs. Mangu Mal, Honble the Chief Justice vide a reference order dated 18.8.1994 (wrongly written as 18.7.1994) has referred the matter to be decided by a Larger Bench for determining legal propositions, emerging from the facts in the present revision petition and for application of law in the given situation of the case in hand. (2). To enumerate the facts, it shall be necessary to give certain facts for the present case. The petitioner Bal Kishan is the tenant of the premises in question. The non-petitioner is sub- tenant, which sub-tenancy had been created by the tenant. Admittedly the Landlord of the premises in question is in one ``Sarvnjik Sampati Trust. The dispute in the present revision petition is regard to sub-lease between the tenant and sub-tenant only. The sub-tenant is said to have committed default of payment of rent to the tenant for a period from 1.1.1981 to 31.12.1982. The monthly rent is said to be Rs. 150/- p.m. In addition to recovery of rent, the plaintiff-tenant had also sought the eviction from the premises in question of the respondents/non-petitioner. The respondent/non-petitioner had admitted the sub-tenancy, but had tried to defend himself on number of pleas i.e. (i) the plaintiff himself was tenant at a lesser rate (ii) the sub-letted the premises to respondent at a higher rent (iii) it was also alleged that the Landlord had also filed suit for eviction against his tenant-petitioner on 30.3.1983 (iv) and the very important plea taken by the sub-tenant was that he had attorned in favour of ``Sarvnjik Sampati Trust w.e.f. 1.4.1983 by esecuting a rent note and, therefore, he was no more a tenant or sub-tenant to the petitioner tenant and not liable to be evicted from the demised shop. He pleaded further that the petitioner tenant can only recover rent upto 31.3.1983 for the reason that so-called sub- tenant respondent has already attorned in favour of original Landlord. (3). The suit was tried by the learned Civil Judge, Bhilwara who vide his order dated 25.7.1985 directed the sub-tenant to pay the rent from 1.1.1981 to 25.7.1985 i.e. upto the date of order, totalliing Rs. 9,200/- within a period of fifteen days from the date of order. This order dated 25.7.1985 was challenged by the sub-tenant in appeal and the Addl. Distt. 9,200/- within a period of fifteen days from the date of order. This order dated 25.7.1985 was challenged by the sub-tenant in appeal and the Addl. Distt. Judge, Bhilwara vide his order dated 14.5.1992 upset the order dated 25.7.1985 passed by Civil Judge, Bhilwara by upholding that tenant was entitled to the rent only from 1.1.1981 to 31.3.1983 for the reason that sub- tenant had directly attorned in favour of Landlord vide a deed dated 1.4.1983 and the sub-tenant was no more a sub-tenant of the original tenant and he by his attornment had become a tenant of the Landlord himself. This Judgment, when tenancy right of a tenant has been taken away by the socalled attornment by sub- tenant in favour of Landlord, became the subject matter of present civil revision petition. When the revision petition came up for final hearing, Honble the Chief Justice on 18.8.1984 referred the matter to the Larger Bench. Order of Honble the Chief Justice dated 18.8.1994 is reproduced as under : 1. ``The petitioner is a tenant and respondent is a sub- tenant. The tenant sought eviction of sub-tenant by filing a suit under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred as `the Act) on the ground of default in payment of rent for more than the requisite period. the trial Court determined the arrears of rent and directed the sub-tenant to pay the amount by a certain date. That order was challenged by the sub-tenant by filing appeal and the District Court has allowed the appeal and set aside the order determining rent on the ground that the suit for ejectment is not maintainable as the sub-tenant has attorned to the landlord. In coming to this conclusion, reliance was placed on the judgment of Lodha, J. in Kewal Ram vs. Mangul Mal. This is revision by the tenant against the said order. 2. I have carefully gone through the decision of Lodha, J. I have not been able to subscribe to the view taken by him that as the landlord and a sub-tenant agreed, tenant would cease to be the tenant of the premises merely because sub-tenant wants to attorn to the landlord. 2. I have carefully gone through the decision of Lodha, J. I have not been able to subscribe to the view taken by him that as the landlord and a sub-tenant agreed, tenant would cease to be the tenant of the premises merely because sub-tenant wants to attorn to the landlord. The `tenant means the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise thany a decree for eviction passed under the provisions of the Act. Therefore, the tenant includes the person against whom a decree is obtained otherwise than by a decree of eviction under the Act and despite that he continues he is considered as a tenant. 3. It is also settled upto the Supreme Court that if a landlord obtained an order of ejectment under the Act on the basis of a compromise or award without establishing the ground of ejectment under the Act, such decree or awared is void and is not executable. For certain other reasons also, I am of the view that the compromise or agreement between the landlord and sub-tenant will not deprive the legal status of tenant to seek the possession of the premises in accordance with law. There is hardly any discussion in the Judgment of Lodha, J. The impression left is that proper arguments were not raised and legal propositions were not considered 4. In fairness, it would not be proper for me to disagree with Lodha, J. and render a judgment in favour of the tenant. Accordingly, I adopt the course of referring the matter to the larger Bench so that the legal propositions may be determined. To be listed before the regular Division Bench in the months of Sept. 1994. (4). In fairness, it would not be proper for me to disagree with Lodha, J. and render a judgment in favour of the tenant. Accordingly, I adopt the course of referring the matter to the larger Bench so that the legal propositions may be determined. To be listed before the regular Division Bench in the months of Sept. 1994. (4). Very important question which arises in the present case is whether a sub-tenant, who has been inducted either with the consent of original landlord or without the consent of such landlord, can straight-way attorn his sub-tenancy in favour of original landlord and thus depriving the tenant who has got an statutory status under the Rajasthan Premises (Contro lof Rent and Eviction) Act, 1950 (for short as `Rent Act), and has certian rights and obligations, can be bye-passed by such compromise between the sub-tenant and original landlord or by connivance of sub-tenant with the original landlord to defeat the statutory protection of the tenant. It is true, if the sub-tenency has been created without the consent of landlord, there are some disabilities attributed to the original tenant and the landlord can always file the eviction petition on the ground that premises in question have been let-out to sub-tenant without his consent. But on the same time, sub-tenancy can be created by a tenant with the consent of the landlord and in such situation the landlord is not authorised to seek eviction of the tenant on the ground of sub-letting, if the sub-tenancy is with the consent of landlord. In either of the situation, the remedy lies before the prescribed Court under the Rent Act to get the rights determinsed viz a viz the landlord and the tenant. It will not be wrong to say in legal fiction that tenant who has created the sub-tenancy is deemed to be a landlord viz a viz the sub-tenant. Whether the sub-tenancy is authorised or non-authorised, the sub-tenant, derives his title, status, rights and obligations from the tenant. He has no direct link with the original landlord. The tenant in chief is the landlord in this very restricted sense qua his sub-tenant. This has been so held in Natraja vs. Bal Subramanium. Whether the sub-tenancy is authorised or non-authorised, the sub-tenant, derives his title, status, rights and obligations from the tenant. He has no direct link with the original landlord. The tenant in chief is the landlord in this very restricted sense qua his sub-tenant. This has been so held in Natraja vs. Bal Subramanium. The `tenant has been defined in the Rent Act as under :– 3(vii) (a) : the person by whom or on whose account on behalf rent is, or, but for a contract express or implied would be, payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-cl. (a) his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, or ordinarily carrying on business with him in such presmises as member of his family up to his death. (5). This definition is geenral and restricted and means that ``there is a land or tenement or house of another (i.e. landlord) which is let out or given on lease to a person on rent who is called tenant, may be for life time or for specified period. This is the general view of a tenant as the people understant it. (6). As the relationship of tenant and landlord is the condition precednet for the application of Rent Act, the definition of ``Tenant has a very important role to play under this Act. The tenant has been the sufferer in the hands of landlord and for his benefit the Rent Control Legislation emerged to remove the mischief. The definition of tenant in the Act has created a law of its own and as such it should be examined in details and must be understood in its real significance in law. (7). The Rent Act gives absolute protection to the tenant inducted by the landlord. The definition of tenant in the Act has created a law of its own and as such it should be examined in details and must be understood in its real significance in law. (7). The Rent Act gives absolute protection to the tenant inducted by the landlord. He can only be evicted on certain grounds which are enumerated in Sec. 13 of the Rent Act, i.e. (i) for non-payment of the rent (ii) causing damage to the premises (iii) alteration to the premises by diminishing the value (iv) creation of nuisance (v) if the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises wihout the permission of the landlord (vi) if has renounced his character as such or denied the title of the landlord (vii) if premises wre let out to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; (viii) if the premises are required reasonably and bonafide by the landlord etc. etc. (8). A procedure has been prescribed under the relevant provisions of the Rent Act wherein the landlords can move the law Court, established under the Rent Act for eviction of their tenants on the grounds mentioned in Sec. 13 of the Act and no other grounds. If and when application is moved (even on the ground of sub-let) in the appropriate Court, it is the Court which is to determine the rights of the landlord and the tenant and in case it is found that there are legal grounds for eviction of the tennt appropriate order may be passed and that would determine the tenancy. The tenants are protected from eviction except in a manner established under the Rent Act. (9). It is well settled law that no party by connivance, by joining hands or by compromise in what so manner, shall deprive the statutory protectio nto a tenant by adopting a course to bye- pass even statutory protection granted to tenant and also the legal fromalities that a landlord may have to undergo under the provisions of the Rent Act. The landlord cannot of his own deprive the teant of his right by joining hands with sub-tenant. The landlord cannot of his own deprive the teant of his right by joining hands with sub-tenant. Admittedly, if law does not permit to do something directly, that cannot be permitted to be done indirectly at the instance of sub- tenant. (10). Viewing the above provisions of the law, the Judgment of learned Single Judge of this Court passed by Honble Lodha, J. reported in Kewal Chands case (supra) wherein the rights and protection given to the tenant by a statute has been taken away by the mutual act of the sub-tenant and the landlord, cannot be, with utmost respect, deemed to be a good law. The views of Honble the Chief Justice in referring order dated 18.8.1994 casting a doubt on the view subscribed in the said Judgments, do have a force. (11). A tenant apart from the definition in the Rent Act, even in ordinary dictionary meaning is a person who acquired a lease ``land or house from a landlord and a sub-tenant shall be a person who acquires a lease from the tenant, meaning thereby, the tenant drives his right direct from the landlord and the sub- tenant derives from the tenant i.e. a sub-tenant is he who acquires something such as a tenement land or house of one who himself if a tenant in property in question. Sources of acquisition of such rights of both the categories are different i.e. the tenant takes the rights direct from the landlord and the sub- tenant takes the rights direct from the tenant. Tenant is liable to pay rent and comply certain obligations towards his landlord; whereas the sub-tenant is similarly, responsible to the main tenant, who is the tenant of landlord. (12). Dictionary meaning of `attornment is ``to accept the tenancy under a new landlord ``or acknowledgement of na new landlord. In Corpus Juris Secundum the term attornment is a relic of the old common law, and has been defined as meaning an act a feudatory, vassal, or tenant, by which he consents, upon the alienation of an estate, to receive a new lord or superior, and transfers to him his homage and service. (7 C.J.S., 1237) (13). In Corpus Juris Secundum the term attornment is a relic of the old common law, and has been defined as meaning an act a feudatory, vassal, or tenant, by which he consents, upon the alienation of an estate, to receive a new lord or superior, and transfers to him his homage and service. (7 C.J.S., 1237) (13). As per the Websters third New International Dictionary, the ``attornment means the act of feudatory, vassal or tenant by which he consents upon the alienation of an estate to receive a new lord or superior and transfers to him his homage and service; the agreement or acknowledgement by a tenant that he holds his tenement of a new person as landlord. (14). The situation of attornment in common law will only arise when a tenant is compelled under certain circumstances to accept a new landlord of the premises who might have been inducted as a landlord by way of decree, transfer, inheritance etc. etc. and when the existence of old landlord is put under cloud and only in that situation, the act of attornment shall come into play when a tennt will accept a new landlord. Primarily and also apparently this is an action between the `tenant who is already in the premises `as tenant and who accepts a new landlord brought in place of previous landlord. Attornment to our opinion cannot be made applicable to the same landlord, by a third person and in this case the `sub-tenant. (15). By no stretch of imagination, the relations of a lesser and lessee i.e. the tenant and the landlord can be jeopardized by a sub-tenant by entering into any type of negotiation or executing of any documentation with the landlord. The tenant has statutory right and can only be evicted or tenancy terminated by the landlord through process of Court by resorting to the relevant provisions and on relevant grounds mentioned in various sections of the Rent Act and by no other means whatsoever. (16). Even otherwise, it is inconceivable that the landlord can create another tenancy of the same demised premises, tenancy of which is already possessed by the tenant who had acquitted the status of a tenant from the landlord previously, meaning thereby there cannot be two different tenants of the same premises at the same time. (16). Even otherwise, it is inconceivable that the landlord can create another tenancy of the same demised premises, tenancy of which is already possessed by the tenant who had acquitted the status of a tenant from the landlord previously, meaning thereby there cannot be two different tenants of the same premises at the same time. If the alleged attornment by the alleged sub-tenant, who had been inducted by the main tenant either by a consent or without consent of the landlord, is accepted, the result would be that in all the cases of sub-letting, which may be even a ground for eviction, the landlord would invariably, instead of taking recourse to the law, accept the attornment of the sub-tenant and thus shall defeat the procedure of law which has been prescribed under the Rent Act. This situation is unimaginable and cannot be allowed by any stretch of interpretation. (17). In the case of Kewal Ram (supra), the doubted Judgment, sub-lease was created without of the consent of the landlord and to cover up the real nature of the transaction viz. the sub- lease, a partinership deed was executed between t he lessee and the sub-lessee as a comounflage and when the landlord Nand Kumar had acquired of both i.e. the tenant and sub-tenant, which he could do under the Act, but the sub-tenant in order to avoid eviction, attorned in favour of landlord Nand Kumar. It was further held that in the facts of that case that it was open to the owner to enter into an agreement of lease directly with sub- lessee and remove the lessee from the scene. It was further held that relationship between the lessor and lessee i.e. original tenant Mangumal and sub-tenant Kewal Ram cane to an end from the date the sub-lessee Kewal Ram had attorned in favour of Nand Kumar. (18). This view cannot be accepted to be just or legal and in our opinion the said Judgment is required to be over-ruled and is over-ruled. (19). Section 13, sub-cl. (1) (e) prescribes the sub-letting by lessee, a ground for eviction. (18). This view cannot be accepted to be just or legal and in our opinion the said Judgment is required to be over-ruled and is over-ruled. (19). Section 13, sub-cl. (1) (e) prescribes the sub-letting by lessee, a ground for eviction. The landlord is free to move the prescribed Rent Court for eviction on any other ground mentioned in Sec. 13 of the Act includin the ground of sub-letting by the tenant without the consent of landlord and for this purpose, a procedure has been provided in the Act itself i.e. a suit is to be filed on one or other ground mentioned in the Act, an opportunity is to be given to the tenant to meet the ground of eviction of the tenant. Section 13 clearly provides that notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order in favour of landlord, whether in execution of a decree or otherwise, evicting the tenant (xxx) so long as he is ready and willing to pay rent therefor to the full extent allwable by this Act. Section 14 of the Rent Act imposes, a further restriction even on the Rent Court against passing any decree on certain grounds mentioned therein, even if the case for ejectment has been made out, untill and unless the Court is satisfied after taking into consideration all the facts and circumstances and satisfying itself that it is reasonable to allow such eviction. It has been further provided that the Court shall not pass any decree under sub-cl. (h) of Sec. 13 i.e. the premises are required reasonably and bonafide by the landlord, if the Court comes to the conclusion that greater hardship would be caused by passing the decree then by refusing to pass it. What is emphasized in the rent Act, is premarily and essential to give protection to the tenant for whose benefit the legislation has been enacted. (20). To our opinion, the Judgment given in Kewal Rams case (supra) does not lay down a correct law, by enabling the sub- tenant and landlord to remove the tenant for the status of tenant by directly entering into an attornment agreement between them, even if we ignore the real meaning of ``attornment for the purpose of this case. (20). To our opinion, the Judgment given in Kewal Rams case (supra) does not lay down a correct law, by enabling the sub- tenant and landlord to remove the tenant for the status of tenant by directly entering into an attornment agreement between them, even if we ignore the real meaning of ``attornment for the purpose of this case. This type of attornment is nothing but entering into a direct contract of tenancy by a sub-tenant with the landlord or the owner of the same premises of which there is already a sitting tenant inducted by the landlord which shall amount to removing the tenant-lessee from the premises in question by the landlord without taking recourse to the provisions of Rent Act. (21). The counsel for the petitioner has cited certain authorities i.e. 1989 (2) RCJ, 652, 1976 SC 2335 and AIR 1980 AP 181. These authorities are not applicable in the preent case. It has been held by the Division Bench of Delhi High Court reported in 1989 (2) RCJ, 652 that in the case of sub-letting of contract between the tenant and the sub-tenant, without written consent of the landlord, the tenant has a right to recover the rent as well as the right to recover the possession of the property from the sub-tenant. A contract of sub-letting in not a void contract between the tenant and the sub-tenant. Applying this authority to the facts of the present case, the tenant has a right to proceed against the sub-tenant for any legal right arising out of contract between him and the sub-tenant. The land owner has also right to proceed against both of them under the Rent Act for eviction, if the sub-letting is without his consent. Counsel for the petitioner has cited many authorities on the point that tenant annot deny the title of the landlord under the Transfer of Property Act. There is no dispute of this proposition of law, but as the point involved in the present case is not denial of the title between the original tenant and the landlord, therefore, there is hardly any necessity to discuss this aspect of argument which is not appalicable in the present case. (22). Learned counsel for the non petitioner has also cited various authorities such as (a) 1937 Privy Council, 251(b) 1987 SC 2192, (c) AIR 1963 Raj. 209 & (d) 1988 SC, 1431. (22). Learned counsel for the non petitioner has also cited various authorities such as (a) 1937 Privy Council, 251(b) 1987 SC 2192, (c) AIR 1963 Raj. 209 & (d) 1988 SC, 1431. All these authorities relate to the denial of title of the landlord and of estopple u/s. 116 of the Evidence Act. They have no bearing on the facts of the present case. (23). The reference, as sought by Honble the Chief Justice in the present case is answered in the manner as mentioned above and to sum up it is held that law laid down by learned Single Bench of this Court in Kewal Rams case (supra) 1974 RLW, 165 is no more a good law and is over-ruled and further it is held that in case of sub-tenancy created by the tenant either with the consent or without consent of the landlord, the rights of the parties are to be determined under the provisions prescribed, and on the grounds mentioned in Sec. 13 of the Rent Act and by no means, the so-called sub-tenant inducted by the main tenant can attorn in favour of landlord and thus remove the lesseee/tenant; the landlord can always seek the eviction of the tenant and/or the sub- tenant on the ground of sub-letting under the provisions of the Rent Act and not otherwise. If the law permits the eviction of the tenant in the manner prescribed, and on the ground prescribed in Rent Act, the landlord of his own cannot, defeat the rights and protection bestowed on the tenant in law, by resorting to ``attornment by the sub-tenant direct to the landlord. (24). The reference is answered as aobve and the registry is directed to list the case before the Single Bench for final disposal. The case be listed on 10.9.1996.