MRS. KAPIL BHARGAVA V. SUBHASH CHAND AGGARWAL, 93 (2001) DLT 65
In 1974 Rama Rani and her son Sher Bahadur the original landlord filed an eviction petition in respect of the premises in question under Section 14(1)(b),(d) and (e) of the Delhi Rent Control Act against Murli Manohar Lal the tenant and M.L. Bhargava, the sub-tenant.
Neither tenant nor any member of his family is residing therein for a period of more than six months before filing this eviction petition and the premises is required bona fide for personal need.
PROCEDURAL HISTORY
Rent Controller: The court of Rent Controller dismissed his eviction petition holding, since the landlady Smt. Rama Rani died during the pendency of eviction petition hence question of bona fide need under Section 14(1)(e) does not survive. Further the said sub-tenant was in possession of the premises in question since before 9th June, 1952, he would be deemed subtenant under Section 16(1) of the Act, hence the case would not fall under Section 14(1)(b), the sub tenant was a lawful sub tenant u/s 16(1) of the Act.
Rent Control Tribunal: dismissed the appeal.
High Court: allowed the appeal but decreed the eviction against tenant u/s 14(1)(d), on the ground that the tenant was not residing in the premises for a period of 6 months immediately before the date of filing of the eviction petition.
ISSUE
Whether by mere declaration of a sub tenant as a deemed sub tenant, could resist his eviction, if it is against a tenant u/s 14 without performing the obligation cast on him under Section 17(2)?
JUDGEMENT
The court observed that,
Section 16 refers to the restrictions of sub-letting. It classifies the cases of sub-letting into three categories.
Sub-section (1) of Section 16 refers to cases where a sub tenant in inducted by a tenant before 9th June, 19521, without the consent of the landlord but is deemed to be a lawful sub-tenant, if he is in occupation of such premises at the commencement of the Act.
Sub-section (2) deals with cases where a sub-tenant is inducted on or after the aforesaid date, and it is without a written consent of the landlord he is not treated to be a lawful sub-tenant and
Sub-section (3) mandates a tenant, after the commencement of the Act, not to sub-let any premises without written consent of the landlord.
The present case admittedly falls under sub-clause (1) of Section 16, under which the appellant could claim to be a deemed sub-tenant.
On one hand it confers on a sub-tenant statutory right, on the other hand Section 17(2) cast an obligation on such sub-tenant to serve a notice on a landlord.
Notice under Section 17(2) cannot be construed as a mere procedural, in fact it confers substantive right on such a sub tenant. It cannot be disputed that no such notice was served in this present case by the appellant on the landlord.
Hence it was held that, unless notice under sub section (2) of Section 17 is served by the sub-tenant, he cannot take the benefit of Section 18 and any decree passed under Section 14 against a tenant is executable against a sub-tenant.
A person in possession may continue to live and continue to pay rent which would be payment on behalf of the tenant, unless specific evidence led that the incumbent in possession started paying rent as sub-tenant, receipt issued as sub-tenant or there exist any document of this nature. We have not been shown any such plea, evidence or any finding by any of the courts below in this regard.
Therefore, the appeal was dismissed.