LexTIRATH RAM GUPTA versus GURBACHAN SINGH & ANR.
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A TIRATH RAM GUPTA v. GURBACHAN SINGH & ANR. FEBRUARY 6, 1987 B [SABYASACHI MUKHARJI ANDS. NATRAJAN, JJ.] c D E F G East Punjab Urban Rent Restriction Act, 1949-S.13(2)- Eviction of sub-tenant--Not permissible if sub-tenancy created before 'r A ct came into force. Transfer of Property Act-Ss.JOB(j), 111(e) & 115-Lessee has right to transfer by sub lease even a part of his interest in the property- W hether surrender of part interest under a lease permissible. The appellant-lamdlord first let out a shop-cum-flat to the second respondent (teuant) and subsequently leased out the adjoining two flats to him. The second respondent sub-let the two flats to the first respon- dent (sub-tenant) prior to the coming into force of the East Punjab -Urban Rent Restriction Act, l949 in the area where the property is situate. The landlord filed a suit seeking eviction of both the respondents, inter alia, on the ground of unauthorised sub-letting, who contested the petition. However, there was a compromise between the appellant and the second respondent, the appellant giving up his claim for eviction of the second respondent from the shop-cum-flat in his occuption and the second respondent conceding that he has sub-let the two flats to the first respondent without the consent .of the appellant-landlord. The Rent Controller passed an order of eviction of the first respondent from the two flats sub-leased to him. An appeal to the Appellate Authority having failed, the first respondent filed ·a revision under s. 15(5) of the Act. The High Court allowed the revision, set aside the order of eviction and held that no order of eviction can be passed under s. 13(2) as the sub-tenancy had been created before the Act came into force in the area where the property is' situate. In the appeal to this Court on behalf of the appellant it was ~ contended; (i) that when the second respondent had admitted the factum of the unauthorised sub-lease and when the Rent Controller and the Appellate Authority had acted on his admission, the High Court was H in error in interfering with the order of eviction concurrently passed by 190 ·~ T.R. GUPTA v. GURBACHAN SINGH 191 the Courts below; (ii) that even without reference to s. 13(2) the sub- A lease was not lawful because the lease deed entered into between the parties contained a clause interdicting any sub-lease without the written consent of the landlord; (iii) that the sub-lease was not lawful even under s. !OS(J) of the Transfer of Property Act because the lease deed contained a prohibition; (iv) that even if it is taken that there was no lease deed prohibiting the creation of a sub-lease, the sub-tenancy had B become unlawful from the date when the second respondent was served a notice of termination of tenancy by the appellant; (v) that a sub- tenant does not have rights independent of the tenant and as such when the second respondent suffered an order of eviction, the first respon- dent was equally bound by the order; (vi) that when there was a surren- der of tenancy rights restricted to the two Oats in question, the first C respondent is bound by the surrender and cannot claim the sub-tenancy rights any further; (vii) and that the Act gives protection only to tenants and not to sub-tenants against unreasonable eviction and hence the first respondent cannot claim protection under the Act from eviction. Dismissing the Appeal, HELD: I. l An order of eviction cannot be passed under s. 13(2) of the East Punjab Urban Rent Restriction Act, 1949 if the sub-letting was prior to the Act coming into force in the area concerned. lt94F] D Surjit Singh v. Rattan Lal, AIR 1980 P & H .l 19, approved. E Gurcharan Singh v. V.K. Kaushal, [1981] 1 SCR 490, relied upon. 1.2 In the instant case, the sub-lease had been effected before the notice of termination of tenancy was issued. The notice of termination F of tenancy subsequently issued would not make the sub-lease created earlier unlawful in any manner. lt95Cl 2. Against a common decree of ejectment passed against a tenant and the sub-tenant, the sub-tenant alone can appeal in his own right against the decree and have the same set aside even though the tenant G decides not to file an appeal. lt95F] Devaraja Bhatt v. V.S. Raja & Ors., AIR 1953 Madras 356 (Vol. 40, C.N. 122), Express Estates Ltd. v. Modern Furnishing House, AIR 1953 Madras 414 and G.L. Kapoor v. Ramesh Chander Nijhawan & Ors.
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